Transforming International Criminal Justice

by Findlay; Mark J.

• ISBN13: 9781843920786
• ISBN10: 1843920786
• Format: Hardcover
• Copyright: 2011-03-15
• Publisher: Willan

Summary

The book injects a significant comparative dimension into the study of international criminal justice. This is achieved through searching the traditional foundations of internationalism in justice by employing an original methodology to enable a multi-dimensional exploration of contexts (local, regional and global), so recognising the importance of difference within an agenda suggesting synthesis. The book argues for a concept of international trial within a 'rights paradigm', understood against different procedural traditions and practices, and provides a detailed description of trials and trial decision-making in various jurisdictions.Transforming International Criminal Justice also sets out to develop effective research strategies as part of its interrogation of specific trial narratives and meanings in contemporary legal cultures. Key themes are those of internationalisation, fair trial and the exercise of discretion in justice resolutions (sentencing in particular), and the lay/professional relationship and its dynamics. Finally, the book provides a searching critique of the relevance of existing criminology and legal sociology in relation to international criminal justice, and speculates on trial transformation and the merger of retributive and restorative international criminal justice

Table of Contents

List of figures and tables	ix
Table of cases	x
Table of legislation	xi
Introduction	xiii
PART I
Theorizing the contextual analysis of trial process	3	(35)
Introduction	3	(2)
Levels of analysis	5	(3)
Comparison	8	(2)
Challenges for theory	10	(3)
Developing structuration theory in a comparative context	13	(4)
Operationalizing the conceptual framework	17	(10)
Linking theory and method	27	(3)
Developing theory and methodology	30	(5)
Conclusion	35	(3)
Criminal justice modelling and trial process	38	(27)
Introduction	38	(1)
Levels of modelling	39	(4)
Developing the contextual model (1)	43	(12)
Developing the contextual model (2)	55	(8)
Summary	63	(2)
Methods for analysing trials comparatively	65	(52)
Introduction	65	(4)
The essence of comparison	69	(5)
Context and comparativism	74	(10)
Trial process -- context and object for analysis	84	(5)
Trial data	89	(6)
Procedural traditions	95	(1)
Narrative analysis	96	(3)
Observation	99	(4)
Questionnaires	103	(2)
Developing the methodological approach	105	(1)
Grounding a model of trial decision-making	106	(2)
Conclusion -- applying the methodology	108	(2)
Italian and English transcript analysis	110	(7)
PART II
Trials in transition	117	(30)
Introduction	117	(3)
Italian transcripts	120	(8)
The importance of pre-existing written evidence (records of interview)	128	(1)
Language and tone of transcript -- what does it say about the nature of professional interaction?	129	(1)
The application of rules such as the rules of evidence	129	(1)
The role of the judge (lay and professional)	130	(1)
The nature of professional interaction -- examination of witnesses	131	(1)
What other narrative forms are suggested and available?	132	(1)
Sites for decision-making	132	(8)
Issues for methodology	140	(2)
Themes for methodology regarding sites for decision-making	142	(2)
Refining the research methodology	144	(3)
Another trial style?	147	(75)
Introduction	147	(1)
Common law transcript	148	(7)
Context analysis	155	(3)
Comparative contextual analysis of trial data	158	(1)
Narrative analysis	159	(2)
Verdict delivery	161	(2)
Sentencing narrative as it reveals verdict delivery decision-making	163	(20)
Sentencing	183	(18)
CCA of sentencing narrative: England and Italy	201	(13)
Issues about trial decision-making emerging from CCA	214	(8)
Sentencing for what?	222	(51)
Introduction	222	(1)
Pathways to sentencing	223	(6)
The domestic context	229	(26)
The international context	255	(9)
Conceptualizing access to justice and victims' rights	264	(3)
Conclusion	267	(6)
PART III
Restorative international criminal justice and the place of the trial	273	(41)
Introduction	273	(2)
New notions of justice	275	(2)
A case for synthesis?	277	(2)
Common themes for restorative and retributive justice	279	(3)
Requirements of RJ in international trials	282	(4)
Institutional manifestations of restorative ICJ	286	(5)
RJ internationally	291	(1)
Alternative governance processes?	292	(2)
The case for the international trial as a place for RJ	294	(3)
Reconfiguring victim community interests	297	(2)
Trial transformation in ICJ -- foundations for change	299	(2)
Prospects for global communitarianism	301	(8)
Restorative pathways of decision-making and influence	309	(2)
Restorative outcomes for ICJ	311	(1)
Just deserts in a victim-focused ICJ?	312	(1)
New aims for ICJ	313	(1)
Transformed trials and new ICJ paradigms	314	(43)
Introduction	314	(3)
The essence of the trial: essentialism and context	317	(2)
Deconstructing trial decision-making	319	(2)
Reconstructing international criminal trial process	321	(3)
The essence of change	324	(9)
Purpose for change	333	(5)
Challenges for change	338	(3)
Dimensions of change	341	(5)
Themes for the transformation trial practice	346	(5)
Realizing new justice expectations	351	(3)
Policy of ICJ transformation and potential for global governance	354	(3)
References	357	(34)
Index	391