the Premises of International Criminal Procedure: Identifying Principles in Collaboration

(B) the factors that have not been recognized as circumstances or values on which international criminal procedure is premised in previous research significantly influence international criminal procedure: (iii) the entire procedure is based on the primitive premise of speed and “first come, first served”; What are the premises unique to international criminal procedures that differentiate them from the domestic law of any State? International criminal procedure refers to the procedural law that governs procedures before the International Criminal Justice Institutions, e.g. the International Criminal Court (ICC). This book examines the principles of international criminal procedure from the perspective of the circumstances and values ​​(= premises) on which they are premised. It applies Premise Theory of general principles of law and conducts a comprehensive empirical analysis of the Court’s practice, and reviews the premises that have been proposed by previous research that has adopted a mainly teleological or theoretical approach. Specifically, it examines the principles that govern international criminal procedures, especially the activities of the ICC, in the chronological order of the procedures (investigation → prosecution (indictment) → extradition → (prohibition of) trial (in absentia) → redress for the rights of accused persons → examination of evidence → reparation for victims) and highlights their characteristics by comparing them with the legal principles that govern similar phenomena in domestic laws. Based on the empirical findings, this book reveals some of the premises inherent in the ICC’s procedural legal system, which are, in fact, distinct from the primary emphasis in the preamble of the ICC Statute. The preamble refers in broad terms to the seriousness of the core crimes and the importance of “the prevention of impunity” and the need for all States to exercise their criminal jurisdiction to prevent these crimes and to make this possible through international cooperation. In procedural practice, however, the ICC’s complementarity to national sovereignty, the second factor of the ICC Statute, as well as the obligation under the law of treaties and the human rights of the accused, which do not appear in the preamble, seemed to play stronger roles in the determination of the procedural principles applied at the ICC. How does international criminal procedure differ from any domestic legal principles and why? What premises of international criminal procedure do give rise to such differences? Can we provide any unified socio-legal explanation for the differences between the procedure of the International Criminal Court and the domestic legal principles? This boils down to the question: what are the premises inherent in international criminal procedure? Applying the premise theory of general principles of law, this book conducts a comparative analysis of various general principles of international criminal procedure with corresponding principles that are valid domestically and in general international law and identifies special premises in the procedural law of the ICC. This book discloses the four points that have not been identified in previous studies. (A) the fact that the value of international criminal procedure frequently mentioned in previous studies has not actually had much of an impact: (i) the premise of “seriousness of the core crime” has little influence at the procedural level; and (ii) the premise of deterring illegal investigations has little impact. (B) the factors that have not been recognized as circumstances or values on which international criminal procedure is premised in previous research significantly influence international criminal procedure: (iii) the entire procedure is based on the primitive premise of speed and “first come, first served”; and (iv) the impact of the premise of consideration for national sovereignty, which is associated with the fact that the ICC is an international organization based on a treaty, is critical. The ICC's institutional premises of the value of expeditiousness and lacking centralized control over its “limbs” have had a significant impact on the various aspects of international criminal procedure.