Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial-Inquisitorial Dichotomy

Abstract

This article considers how well evidentiary processes within the international criminal tribunals match up to the challenge to provide fair and reliable verdicts. Rather than using the adversarial-inquisitorial dichotomy as the basis for exploring this question, the article takes as its reference point the well recognized norms of equality of arms and the right to adversarial procedure. It is argued that although the tribunals have met the minimum standards of fairness required by these norms, the combination of adversarial party presentation and free admission of evidence, within an evidentiary context in which it is difficult for the defence to make their own inquiries, has restricted defence access to information and its ability to challenge evidence. The article goes on to argue that some of these shortcomings have been addressed within the International Criminal Court by the establishment of a Pre-Trial Chamber but that the Chamber needs to be developed further to promote a truly participative approach to fact-finding between the parties.