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251. A slightly different tenure regime could be applied to the Chefs de Cabinet of the Principals, i.e. that these would be appointed by the newly elected President/Prosecutor/Registrar and serve only for the term of that official, possibly with the option of returning to the ranks of the Court staff if they are not already under a tenure limit. The application of tenure for senior staff would suggest that the Deputy Prosecutor, currently elected for a term of nine years, should not be a candidate for Prosecutor at the end of their term. 252. The Experts recognise the difficulty of applying a new tenure system to staff already in the Court, so they suggest that the system be applied only to new recruitments for Power in International Criminal Justice Morten Bergsmo, Mark Klamberg, Kjersti Lohne and Christopher B. Mahony (editors) P-5 and Director-level positions as these come vacant. This would not preclude the Court from encouraging senior staff who have served in the Court for a long time to consider taking early retirement, including through offering financial packages. 253. Notwithstanding that this would not apply to existing staff, there is likely to be considerable resistance to the introduction of tenure in many parts of the Court (even if there is also some enthusiasm for this approach in other quarters). But it is the firm view of the Experts that this is a measure essential to addressing effectively a number of the institutional weaknesses of the Court. Not least it would bring fresh approaches and thinking, as well as more dynamism into the Court across all its Organs. GMCS reasons of procedural fairness, the limitations should not be applied to those occupying these positions currently and would only apply to those newly appointed to the positions. Nonetheless, long serving officers of P-5 or Director level might be 82 E-Offprint: Alexander Heinze, “Bend It Like Bentham: The Ambivalent ‘Civil Law’ vs. ‘Com- mon Law’ Dichotomy Within International Criminal Adjudication”, in Morten Bergsmo, Mark Klamberg, Kjersti Lohne and Christopher B. Mahony (editors), Power in International Criminal Justice, Torkel Opsahl Academic EPublisher, Brus- sels, 2020 (ISBNs: 978-82-8348-113-6 (print) and 978-82-8348-114-3 (e-book)). This publication was first published on 9 December 2020. TOAEP publications may be openly accessed and downloaded through the web site https://www.toaep.org which uses Persistent URLs (PURLs) for all publications it makes available. These PURLs will not be changed and can thus be included in citations. Printed copies may be ordered through online distributors. This e-offprint is also available in the ICC Legal Tools Database under PURL https://www.legal-tools.org/doc/3tq2l4/. © Torkel Opsahl Academic EPublisher, 2020. All rights are reserved. Front cover: Octavian, known as Caesar Augustus (63 BC–AD 14), the first Roman emperor, who enjoys a 2000-year old legacy as one of the most effective leaders in human history. He is a symbol of power. But this famous fragment of a bronze equestrian statue in the National Archaeological Museum of Athens is also a hollow mask. This book is about unmasking power. Back cover: Excerpt from Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report, 30 September 2020. The experts showed courage and incision by challenging power in the International Criminal Court system in their report. 4 ______ 4.Bend It Like Bentham: The Ambivalent ‘Civil Law’ vs. ‘Common Law’ Dichotomy Within International Criminal Adjudication Alexander Heinze* As early as in 1869, Robert von Mohl, Professor of Political Sciences at the University of Tübingen and one of the first who coined the term ‘Rechtsstaat’, published a three-and-half pages long critique of the state of international criminal law that he ended with words that might well be uttered today: There is no hope that this [namely, the state of international criminal law] is going to improve. Governments are occu- pied with mutual envy, heads of State perceive themselves as high above matters that in their eyes are pedantic scholarly ideas, scholars and academics are still confused and too di- vided to formulate meaningful advice […]. After all, there would be no complete achievement without North America’s consent; this consent, however, is out of the question due to the barbaric state of international concepts and terms and the increasingly defiant attitude of both the media and domestic legislators. Thus, in this matter [that is, the matter of interna- * Alexander Heinze is an Assistant Professor of Law at the University of Göttingen, Ger- many. He holds a Ph.D. in International Criminal Law (with honours), received his Mas- ter’s in International and Comparative Law from Trinity College Dublin, Ireland, with dis- tinction and published various papers on topics such as international criminal law and pro- cedure, media law, comparative criminal law, human rights law and jurisprudence. His book International Criminal Procedure and Disclosure (Duncker & Humblot, 2014) won three awards. He is a member of the ILA’s Committee on Complementarity in ICL, co- editor of the German Law Journal, book review editor of the Criminal Law Forum, and worked for the Appeals Chamber of the ICC as a visiting professional. Publication Series No. 28 (2020) – page 155 Power in International Criminal Justice tional criminal law] it is made sure that the trees of intellec- tual complacency do not grow up to the sky.1 Surely, especially the critical perception of the media is due to the historical context. Yet, what von Mohl emphasized with drastic words might only be slightly exaggerated with a view to the current state of in- ternational criminal law discourse: the “barbaric state of international concepts and terms”. A prominent example of this are the terms adversarial–inquisitorial and common–civil law – certainly the most common taxonomy of interna- tional criminal justice. These categories lack clarity and definition and have proven to be of limited descriptive value. This does not render them ill-suited; on the contrary, they may in fact serve as a tool to gain a better understanding of why certain procedural approaches are selected over others. However, they need to be defined, refined, and complemented by other more precise topographies of power within international criminal jurisdictions. In this chapter, I will demonstrate, as a premise of my argument, that different procedural traditions create diverse attitudes and very dis- tinct points of view about legal norms. Evidentiary rules, for instance, are so rooted in their historical and cultural context that they cannot be trans- planted in a piecemeal fashion from a common law or civil law system into international criminal justice, because different legal traditions and cultures foster different responsibilities within a system. To transplant a procedural element from one system into another requires an accurate de- scription of the default legal system, for which the common–civil law tax- onomy is unsuitable. 1 Robert von Mohl, Staatsrecht, Völkerrecht und Politik, Dritter Band: Politik, Zweiter Band, Verlag der H. Laupp’schen Buchhandlung, Tübingen, 1869, p. 700 (translated by the author): Leider ist nun aber auch eine baldige Verbesserung nicht zu hoffen. Die Regierungen haben mit gegenseitigem Neide zu viel zu thun, die leitenden Staatsmänner stehen zu hoch über dem, was ihnen eine pedantische Schulgrille erscheinen mag, die Wissen- schaft ist noch viel zu confus und unter sich uneinig, als dass sie mit Auctorität einen Rath formuliren könnte, als dass an einen Congress und eine allgemeine Vereinbarung zu denken wäre. Und schließlich wäre nicht einmal etwas vollständiges erreicht, wenn nicht auch Nordamerika seine Zustimmung gäbe; eine solche aber ist bei dem barba- rischen Zustande der internationalen Begriffe daselbst und bei dem immer trotzigeren Auftreten roher Zeitungsschreiber und Gesetzgeber außer aller Frage. Es ist also auch in diesem Punkte schon dafür gesorgt, dass die Bäume intelligenter Selbstzufriedenheit nicht in den Himmel wachsen. Publication Series No. 28 (2020) – page 156 4. Bend It Like Bentham: The Ambivalent ‘Civil Law’ vs. ‘Common Law’ Dichotomy Within International Criminal Adjudication I will therefore first describe the procedural models that are com- monly employed for international criminal justice (common law vs. civil law; adversarial vs. inquisitorial) and then, in a second part, identify which taxonomy serves best to categorise the procedural framework of international criminal justice. This taxonomy has to be descriptive, empir- ical, analytical and interpretive (explanatory), taking into account the structural, institutional, sociological and political features of procedural provisions of international criminal tribunals. To that end, of all existing categories, Damaška’s concepts of co-ordinate vs. hierarchical official- dom and a reactive vs. an activist State, with conflict-solving vs. policy- implementing types of proceedings, serve best to model procedural frameworks in international criminal justice, because they are more pre- cise topographies of power within international criminal jurisdictions. Damaška, drawing on Weber and other social theorists, builds a bridge to political theory, is able to encapsulate the complexities of real legal pro- cesses, and creates models of relatively unusual combinations of features by using Weberian ideal-types. His models embrace the differences of le- gal thought between common law and civil law, which at the same time underline the aforementioned utility of such categories – not as models in themselves, but as features of Damaška’s ideal-types. The combination of sociological, empirical and political elements with the use of ideal-types allows an insight into the nature of a society’s legal system that is shaped by the kinds of individuals2 who dominate it. What appears to be a mere snapshot of procedural practice is symp- tom of a much larger picture. This chapter is thus an essay about defini- tion, terminology, deconstructionism, and the arbitrary use of concepts.

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