Symposium: Discussion of Gordon’s “Toward an International Criminal Procedure”

[Mark Drumbl is the Class of 1975 Alumni Professor of Law at Washington & Lee Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at AIDP Blog.]



In Toward an International Criminal Procedure: Due Process Aspirations and Limitations, Professor Gregory Gordon inquires why international criminal procedure “has failed to achieve the level of due process offered by the most rights-protective countries, such as the United States.” He posits that a number of factors explain this perceived due process shortfall. Factors include the need to harmonize civil law and common law methodologies, the sheer gravity of the crimes being prosecuted, and fragmentation of enforcement. Prof. Gordon concludes that, despite the importance of due process, there are many obstacles to its full actualization in international criminal procedure.



Might Prof. Gordon overestimate the amplitude of due process in domestic criminal proceedings in the United States? Frankly, I’m not convinced of the proposition that “[i]n the United States [*] first-degree murderers get a fair shake at every stage of criminal proceedings * in capital cases the system bends over backwards to extend every due process consideration possible.” It is unclear whether, in ordinary criminal cases, the U.S. actually offers such a deeply “rights-protective” criminal prosecution and sentencing system. The assumption of rights-protection becomes even more frail when one compares the treatment the U.S. accords to defendants who more closely resemble the types of defendants in which international criminal tribunals claim an interest: those pariahs who stand accused of atrocity crimes (in which I would include suspects associated with the 9/11 attacks and subsequent wide-scale terrorist attacks against civilian populations). How much due process does the U.S. presently accord to such suspects, including persons currently detained at Guantanamo? Very little. Were it not for the Hamdan judgment, and its extension of the barebones of Common Article 3 to the non-international conflict against al-Qaeda, hardly any at all. The barebones of CA3, and the due process provisions of the Military Commissions Act (which just survived scrutiny by the D.C. Court of Appeals), look pretty skimpy when compared to the rights-protection provided by international criminal procedure. Furthermore, the U.S. Regime Crimes Liaison Office strongly backed the Iraqi High Tribunal, whose level of due process falls short of that of international institutions and which, just a few months ago, conducted grisly executions.



The content of a truly international criminal procedure should extend beyond the technical integration of “common law” and “civil law.” There is much more out there. Prof. Gordon speaks of the need to integrate rules into a cohesive system that will satisfy all concerned. He is absolutely correct. But what about the people who actually live in the societies whose atrocities have become judicialized? Are they satisfied by harmonization among “civil law” and “common law” criminal procedure methodologies? Do they care that the ICC’s pretrial procedure is largely born of the civil law and trial procedure of the common law? As I contend in my forthcoming book, Atrocity, Punishment, and International Law, a pressing challenge for international criminal procedure is for it to come to terms with modalities of accountability that transcend the criminal trial and correctional preference for sequestered incarceration. These alternate modalities often have greater meaning to people actually living in post-conflict societies. Such modalities include local bottom-up justice approaches * with their attendant benefits and inequities * such as mato oput in Uganda, biti bot in Timor-Leste, and gacaca in Rwanda. Another challenge for international criminal procedure is for it to engage with alternate sanctioning mechanisms such as restitution, community service, reintegrative shaming, and reparations. To the extent that international lawyers can move beyond Western liberal legalism, of which both civil law and common law criminal procedure are variants, they can better actualize a truly cosmopolitan vision of justice.



By taking common law adversarialism as the normative baseline, it seems inevitable that other methods of justice will fall short. Prof. Gordon’s position would be strengthened by a more fulsome justification why common law adversarialism, contoured by due process rights, actually should be the normative baseline in terms of its suitability for redressing atrocity. Prof. Gordon also might consider more robustly why certain entitlements that he rues are missing from international criminal process, such as juries, necessarily protect the due process rights of defendants accused of genocide, war crimes, and crimes against humanity.



In all likelihood, due process serves certain expressive purposes. It protects the dignity of those doing the prosecuting and lends authoritativeness to the judicial record. Expressivism is probably the most plausible justification for international criminal punishment. It is more plausible than deterrence or retribution. But too much due process, particularly in cultural contexts where such process may be perceived as alien, also may generate credibility concerns. Distant courtroom trials may lead to an externalization of justice from the communities whose tragedies are being adjudicated. What is neutral to international lawyers may seem partisan to victim communities.



Prof. Gordon is wise to underscore that “international criminal procedure will have to forge its own identity.” That is a valuable learning lesson from his impressive work. He offers a sophisticated analysis of the interface between common law and civil law methodologies. However, I do hope some space is created in this integrative process for international criminal procedure to engage in a truly comparative, and cross-cultural, interface with socio-legal systems outside of Western traditions.