As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.
This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure in international criminal law. It departs from trends in current scholarship that attempt to apply the methods of comparative law to a study of international criminal procedure. It concludes by urging comparative scholars to redirect their focus from describing the procedural features of the emerging international system to engaging with the more fundamental question of what those features ought to be.
The Reason Behind the Rules: From Description to Normativity in International Criminal Procedure
, 36 N.C. J. Int'l L. & Com. Reg. 255
Available at: http://ecollections.law.fiu.edu/faculty_publications/147