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EDITORIAL
* Member of the Board of Editors; Legal Adviser, International Criminal Court. The views expressed are those of the author and cannot be attributed to the International Criminal Court
International criminal law has made impressive strides over the past twenty years. The 1990s and 2000s saw the establishment of ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR), the coming into being of the permanent International Criminal Court (ICC), and the birth of several internationalized 'hybrid' jurisdictions, notably the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). However, the dynamic development of international criminal law into a new branch of public international law has also led to some problems and confusion. The rules and principles developed by the newly founded international criminal tribunals have sometimes seemed at odds with accepted views on public international law more generally - raising fears about the 'fragmentation' of the law.1Perhaps the best-known example of this is the controversy over the 'overall-control' test developed by the ICTY Appeals Chamber in the Tadic case to determine under which circumstances armed forces may be considered to be acting on behalf of a third state, rendering an internal armed conflict international.2The Tadic test differed from the 'effective-control' test developed by the International Court of Justice (ICJ) in the Nicaragua case3and confirmed in the Bosnia Genocide case, where the ICJ specifically rejected the ICTY approach.4Also more generally, the discussion on 'fragmentation' and international criminal law continues;5recently, Elies van Sliedregt set out in these pages her vision of legal pluralism in international criminal law.6
The controversy over 'fragmentation' - which initially focused on the substantive law - has also reached 'international criminal procedure', i.e. the procedural law that international criminal courts and tribunals apply. The first manifestation of this was the debate on 'witness proofing': in 2006, a pre-trial chamber of the ICC ruled that the prosecution and the defence could not 'proof' their witnesses before they appeared in court, that is, inter alia, meet with them in advance, allow them to read their previous statements, and ask the questions that will be...