Post Rule of Law: The Structural Problem of Hybridity in International Criminal Procedure

by Kerstin B. Carlson 

The value of developing hybrid international criminal procedure (ICP) is that it is arguably inclusive (representing two major legal traditions) and distinct from any domestic system, thus creating a separate, sui generis realm for international criminal law (ICL) jurists to meet. Since its inception at Nuremberg, individual elements of hybridity have consistently caused concern amongst practitioners and legal theorists, largely around questions of transposition as jurists from one tradition resisted practices from the other. Transposition problems remain unresolved in modern ICP and have received extensive attention in the literature. The practice of hybridity itself, however – the determination to operationalize ICL through procedures drawing from different legal traditions, with specific practices drawn from singular jurisdictions – has received less critical scrutiny. This article addresses the practice of hybridity in ICP, drawing examples from the construction and evolution of hybrid procedure at the International Criminal Tribunal for the Former Yugoslavia (ICTY), to argue that the hybridity practiced by international criminal tribunals renders them ‘post rule of law’ institutions, thus challenging their central didactic and norm-constructing roles. 

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