Judging in International Criminal Cases: Challenges, Aspirations and Duties

in Justice Without Borders
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There are many similarities between the tasks facing judges in international criminal and humanitarian law cases, not least the essential requirements of conducting fair trials according to the applicable law.

There are however aspects of international trial judging that raise especial difficulties and tasks.

They include the complexity of some aspects of the law, for instance joint enterprise and co-perpetration, the sheer size of the trials and amount of evidence, the intense social and political interests such cases generate, the variety and scope of the problems arising from a mix of legal and social cultures and, not least, the linguistic and interpretation challenges that arise in both written documents and oral advocacy. There are tensions between civil law and common-law procedures and priorities, different evidential cultures and, as one example, different approaches to the limitations on leading and non-leading questions in examination and cross-examination of witnesses. Witnesses come from a wide variety of cultural, linguistic and social backgrounds and the expectations of affected civil society may be far more obvious and complex than in domestic cases. All this has to be contained and dealt with in a fair, rational and coherent way, often by a panel of judges trying both fact and law but coming from very different legal cultures. How is this managed and what are the issues and problems to be solved? What mechanisms can be put into place to assist and what needs to be done differently better than the last few decades has produced?

Justice Without Borders

Essays in Honour of Wolfgang Schomburg

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