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"International Criminal Procedure", erschienen bei Oxford University Press UK
International Criminal Procedure

Responsible: Prof. Dr. Christoph Safferling

Research Fellows: Lars Büngener, Christine Frey, Alena Hartwig, Yvonne Koberg

 

International criminal procedure is the umbrella term for procedural law which is used by the International Criminal courts to enforce international criminal law. With the London Agreement of the International Military Tribunal for the prosecution of German major war criminals on the 8th of August 1945 an international criminal procedure was codified for the first time in history. It is also known as the “Trial of the Major War Criminals in Nuremberg”. Almost 50 years later the United Nations in Den Haag set up a so called Ad-hoc-Tribunal. Its purpose was the prosecution of crimes committed against humanity in former Yugoslavia. One year later another Tribunal was set up for the persecution of the Rwandan genocide in Arusha. The enforcement of international criminal law in these tribunals was based on the Charta of the United Nations for the first time since Nuremberg. This necessitated a new international criminal procedure law. With the adoption of the Rome Statute to set up a permanent International Criminal Court (ICC) in 1998 the international community of states established an independent procedural structure. This serves as the basis for international criminal procedures carried out through the ICC. Meanwhile a number of so-called hybrid tribunals (East Timor, Sierra Leone, Cambodia) have been established. Each of them is equipped with an independent international procedural structure. Thus, international criminal procedure is relevant for different contexts and various judicial authorities.

Many practical difficulties evolve from the at this point rudimentary legal configuration of the implementation of international criminal procedure. International criminal procedure does not have a long tradition. In some cases there are debates about essential structures. Depending on the origin of the person involved, the practise of procedural judges varies due to the fact that there are no clear rules or recorded conceptions for the fulfilment of tasks. Especially the so-called disclosure, meaning the alternating information on means of evidence of prosecutor and accused, causes serious problems. In this regard there is a conflict between the rights of defendants and the victims’ and witnesses’ need for protection. There is no detailed arrangement for the presentation of evidences for main trials or their legitimacy. It is to be feared that in this respect there will be no equal application.

International criminal procedure is fed on various national criminal proceeding laws from different cultures. The Anglo-American (common law) and the continental (civil law) legal sphere are rather dominant, though partly diametrical opposed to each other. Criminal trial law has the same intention in every cultural sphere: to ascribe causes of actions to responsible persons and to reprove and prosecute their behaviour officially. This is achieved in a variety of ways. Continental criminal procedure law is based on inquisitorial practise and the experience of a professional judge. It pursues a high claim to truth. The Anglo-American criminal procedure law rather focuses on discussion of two equal parties. The judge supervises and ensures the fairness. The decision of guilt or innocence is made by jury members. International criminal law procedure cannot rely on an evolved structure and acceptance. Rather it must obtain confidence acknowledging the consisting national traditions. The political will for international proceedings seems to exist considering the high number of ratifications of the ICC-statute. However the functioning of the international procedure law as legitimated for a general prevention of crimes is dependent on the acceptance of courts and their verdicts in the particular society. The criminal procedure law applied to by the ICC must be recognized as „fair“ virtually everywhere.

 

Christine Frey was concerned with questions on the protection of victims and witnesses, especially considering the Extraordinary Chambers in Cambodia.

Alena Hartwig did research on the topic of “Custody in International Criminal Law – Human Rights Demands for the Implementation and Enforcement of Custody by International Criminal Courts”.

Lars Büngener did research on the disclosure rules and their historical development from the Nuremberg Trials and the UN ad hoc Tribunals to the ICC.

Within the framework of this project various single projects worked on critical questions of international criminal procedures. The result is a teaching book on "International Criminal Procedure".

Zuletzt aktualisiert: 03.12.2012 · Hoermann Sascha, Fb. 01

 
 
 
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