Damaska and the Faces of International Criminal Justice

Abstract

Mirjan Damaska 's scholarly publications provide important insights for the analysis of systems of criminal justice at the international level. This is particularly true for his major book: The Faces of Justice and State Authority - A Comparative Approach to the Legal Process. The book develops ideal types, or models, of the structure and the function of government. As far as the structure of government, the ideal types of hierarchical and coordinate officialdom are contrasted with one another. With regard to the function of government in society, two other mutually exclusive ideal types are developed: the ideal type of the purely reactive state and that of the purely activist state. In the purely reactive state all state activities are essentially a form of dispute resolution between individual citizens. Consequently, all proceedings take the shape of a contest between two parties. In the reactive state, on the other hand, all law is an expression of state policies. This entails that all proceedings are essentially an official inquiry enabling the state to implement its policies. The four ideal types call for several observations, one of them being that, at the international level, there is no authority that can be compared to a state. Setting up international criminal courts requires choices with regard to the structure and function of authority. International human rights instruments provide no guidance as to the nature of the choices to be made. In particular, they do not indicate whether the legal process should be structured as a contest between two parties or as an official inquiry. The same is true for empirical evidence. An analysis of the structures of authority in international criminal courts reveal that they represent hybrids of the hierarchical and the coordinate ideal types of officialdom. The fact that these courts are unitary courts has a profound effect on evidentiary arrangements. The most important issue raised by the exposition of ideal types of The Faces of Justice concerns the relationship between the goals of international criminal justice and the appropriate legal process to serve their realization. Goals of a conflict-solving nature are best served by a legal process structured as a contest between two parties and goals related to the implementation of policies by a legal process structured as an official inquiry. It is therefore essential to determine what goals are being pursed by international criminal courts. One may distinguish here between goals that international systems of justice may or may not have in common with national systems of criminal justice. The pursuit of the traditional goals of criminal justice common to international and national systems of justice does not provide compelling reasons to prefer either a contest model or an inquest model of the legal process. This is different, however, for the idiosyncratic goals of international criminal justice that set apart international systems of criminal justice from national systems. The pursuit of these goals makes it desirable that historical facts are established as accurately as is possible in the given circumstances. They are, therefore, best served by a legal process that takes the shape of an official inquiry. In the hybrid type of procedure adopted by the ICTY there is insufficient clarity about the procedural status of the peculiar goals of international criminal justice as well as about the use of procedural means to pursue them. This entails that it is not really possible to determine whether this hybrid represents a success. Hybrid types of procedure cannot truly exist without adopting a view with regard to the impartiality of judges that is inspired by standards enshrined in international human rights instrument rather than those that are characteristic for the legal process shaped as a contest between two parties.