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International idealism meets domestic-criminal-procedure realism.

Burke-White, William W
June 4, 2015

Source: (2009) Scholarship at Penn Law. Paper 272.

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, speedytrial
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. (author’s abstract)


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