Rape and Fair Trial in Supranational Criminal Law
| Author | Roelof Haveman |
| Published date | 01 September 2002 |
| Date | 01 September 2002 |
| DOI | http://doi.org/10.1177/1023263X0200900303 |
| Subject Matter | Article |
Roelof Haveman∗
9 MJ 3 (2002) 263
Rape and Fair Trial in Supranational Criminal Law
§ 1. Introduction
One of the most fascinating subjects of supranational criminal law, as it develops under
the ad hoc tribunals for (the former) Yugoslavia (ICTY) and for Rwanda (ICTR), and
the permanent International Criminal Court (ICC), is the question whether it will
succeed in creating a criminal trial that meets the requirements of a ‘fair trial’, being the
universally accepted standard for a ‘just’ trial.
The answer to this question is not simple. The concept of a ‘fair trial’ is not strictly
defined. To illustrate this: both the adversarial model, which dominates in common law
countries, as well as the inquisitorial model, which one finds mainly in civil law
countries, are considered to meet the standards of a fair trial, even though both models
are complete opposites in many respects.1 Fairness seems to be the result of balancing
the rights of the accused against those of the prosecuting state and, although to a lesser
extent, the rights of victims and witnesses. This balance is not a fixed one. The
presumption however seems to be that the systems as they function in e.g. Western
Europe are basically ‘fair’: on the whole the rights of the various players are in balance.
Judging of the ‘fairness’ of the supranational system then becomes very difficult, when
one realizes that supranational criminal law unites many elements of both the
adversarial and inquisitorial models, but that at the same time all those elements receive
a completely new meaning in their new supranational context. As a result, this
supranational system cannot be imposed on one of the existing models without doing
harm to it. Supranational criminal law is a sui generis system, a system with its own
* Roelof Haveman is a senior lecturer in (international) criminal law and criminal procedure, Leiden
University, Law Faculty, Department of Criminal Sciences, and Programme Director of the Centre for
International Legal Studies (CILS), Leiden University Campus, The Hague.
1. Lawyers educated in adversarial practice generally think it is difficult to consider the inquisitorial
process as ‘fair’, and visa versa.
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