Notwithstanding the uniformity of war crimes substantive law, applicable procedural rules vary from jurisdiction to jurisdiction. In the case of ad hoc tribunals, the applicable rules may not be known until the tribunal is established. Consequently, there is uncertainty and incoherence in war crimes procedural law. Furthermore, the quality of applicable rules is dependent on the varying experience, knowledge and intentions of the framers of the procedural rules of each tribunal. This article makes the case for a universal procedural framework that can serve as an instrument for evaluating and creating war crimes procedural rules. Amongst other things, such a framework will bring about certainty and coherence in war crimes procedural law. In devising the model framework, the article adopts the Benthamite approach to the relationship between substantive law and procedural law and also relies on some aspects of the process evaluation theories of Robert Summers and Michael Bayles.
Cassesesupra note 105 p. 158; Marco Roscini “Great Expectations: The Implementation of the Rome Statute in Italy” 5 J Int Criminal Justice (2007) pp. 493–512 at 496; Michael P. Scharf “Introductory Note to the International Criminal Court’s Arrest Warrant for Omar Al Bashir President of the Sudan” 48 ILM (2009) 463.