Goran Sluiter, Hakan Friman, Suzannah Linton, Sergey Vasiliev and Salvatore Zappala (eds), International Criminal Procedure: Principles and Rules

Abstract

Studies of international criminal law are sometimes criticized because they are written by academics, not practitioners; a critique often made of procedural works, where it is perceived that a ‘practical’ view is needed.1 While it is undeniable that few areas of legal practice, whether at the domestic or international level, are so permeated by academic thought as international criminal law, it is perhaps questionable to prefer ‘the practitioner’ over ‘the academic’ in this field.2 According to a traditional stereotype, homo academicus is caricatured as the ‘supreme classifier among classifiers’, liable to become trapped in the net of her own classifications,3 or lost in the intoxication of absolutist thinking.4 By way of contrast, there stands ‘the practical lawyer’, a hard nosed advocate, familiar with the nuance and complexity of court room argument; well placed to provide the real picture of criminal procedure.5 The problem with applying this sort of view to the realm of international criminal procedure, is not only that the stereotypes may be illusory, or at least overly simplistic, but that in order to understand procedure in this realm, it may not be sufficient to listen only to the practitioner’s viewpoint. In the English courts, Archbold and Blackstone’s have attained a semi biblical status precisely because they offer a reliable statement of the law, with little in the way of normative assessment.6 However, the nature of international criminal justice is such that, at every turn, novel procedural questions arise, some of which require straight forward pragmatism (hence Archbold also succeeds at the international level), but many of which involve normative considerations. The statutory interpretation of ‘personal interests’ under Article 68(3) of the Rome Statute, for instance, may arise as a procedural matter, but it undeniably engages a subjective value judgment, as well as deeper questions about the goals of international criminal justice. Arguably, these are issues best addressed by a distanced academic perspective, supplemented by practical experience from the tribunal floor.