Independence and Autonomy of "Ad Hoc International</I> Criminal Tribunals
Part II External Influences on Judging at International Criminal Tribunals
Introduction From a theoretical standpoint, a trial can be regarded from two perspectives: As the process of negotiating guilt, during which the prosecutor acts as a representative of the state (or, respectively, as a representative of the community, whose system of norms was violated), the defence counsellor acts as a representative of the defendant and the judge moderates the confrontation between the two parties, weighs the evidence and finally issues a verdict, possibly guiding a jury. These features broadly describe the adversarial system, which exists in the United States. In the inquisitorial system, which dominates on the European continent, it is the task of the judge (or the trial chamber) to establish the truth (rather than guilt alone) in a joint effort with the prosecution and the defence. Whether we reject this dichotomy or not, both systems’ basic assumptions remain undisputed. One of them is the belief that the application of specific procedures facilitates the establishment of the truth about a certain controversial event (what happened and who did what).301 Another one consists in the conviction according to which this procedure can only work smoothly and efficiently if all participants fulfill the role assigned to them by the law. A more specific and extremely essential requirement is the impartiality of the judge or the trial chamber. Another one is the expectation that verdicts should be based on deliberation rather than bargaining, which includes that the discussions of the judges (and, if applicable, the jury) should only be guided by...
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