Title

International Idealism Meets Domestic-Criminal-Procedure Realism

Document Type

Article

Comments

Volume 59, Duke Law Journal (January 2010)

Abstract

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism to cultivate cooperation with national authorities and to select fewer cases for international prosecution. Revised plea bargaining and sentencing rules could learn from domestic lessons and pitfalls, husbanding scarce resources and minimizing haggling while still buying needed cooperation. Finally, in blending adversarial and inquisitorial systems, international criminal justice has jettisoned too many safeguards of either one. It needs to reform discovery, speedy-trial rules, witness preparation, cross-examination, and victims’ rights in light of domestic experience. Just as international criminal law can benefit from domestic realism, domestic law could incorporate more international idealism and accountability, creating healthy political pressures to discipline and publicize enforcement decisions.

Date of Authorship for this Version

February 2009

Keywords

Criminal Law and Procedure, International Law, institutional design, retribution, ideology, federalism, international cooperation, plea bargaining, sentencing, adversarial system, inquisitorial system, safeguards, discovery, speedy trial, witness preparation, victims’ rights, ICC, International Criminal Court, ICTY