Introduction
The inquisitorial procedure, often employed in international dispute settlement mechanisms such as criminal and human rights tribunals, prioritises truth-seeking and substantive justice over adversarial contestation. While this approach aims to uncover facts through active judicial involvement, it is not without significant limitations. This essay critically examines the demerits of the inquisitorial procedure in the context of international law, focusing on threats to state sovereignty, risks of bias, procedural inequality, legitimacy concerns, resource constraints, procedural delays, and political sensitivities. By exploring these issues, the essay highlights the challenges of applying inquisitorial methods to international disputes and underscores the tension between substantive justice and procedural fairness.
Threat to State Sovereignty and Consent
A primary concern with the inquisitorial procedure is its potential to undermine state sovereignty. International law fundamentally rests on state consent, yet inquisitorial systems diminish party control by empowering judges to define the scope of inquiry and gather evidence independently (Cassese, 2008). This can be perceived as an intrusion into sovereign autonomy, particularly in international criminal or human rights tribunals where states may resist cooperation or challenge jurisdiction. For instance, some states have contested the International Criminal Court’s authority, arguing that its investigative powers infringe upon their right to self-determination (Schabas, 2011). Such resistance highlights how inquisitorial methods can strain the delicate balance between state consent and international accountability.
Risk of Bias and Power Concentration
Another notable demerit is the risk of judicial bias, whether real or perceived, due to the concentration of power in the hands of judges or investigators. In inquisitorial systems, the same authority investigates, evaluates evidence, and delivers judgment, raising concerns about impartiality (Damaska, 1986). In politically charged disputes, such as those involving war crimes, judicial activism may be interpreted as a predetermined outcome, thereby eroding trust in the tribunal’s neutrality. Even without explicit bias, the mere perception of unfairness can undermine the legitimacy of international dispute settlement mechanisms, as seen in criticisms of certain International Criminal Tribunal rulings (Cryer et al., 2014).
Procedural Inequality and Fairness
While the inquisitorial system seeks to level disparities between parties, it often compromises procedural equality by limiting state initiative in shaping their defence. Sovereign equality—a cornerstone of international law—implies that states should have equal control over case presentation (Shaw, 2017). However, the reduced role of parties in inquisitorial proceedings can disadvantage states with fewer resources or legal expertise, arguably sacrificing fairness for the pursuit of truth. This tension between procedural and substantive justice remains a critical limitation in interstate disputes.
Legitimacy and Compliance Issues
The legitimacy of inquisitorial outcomes is further challenged by states’ reluctance to accept rulings perceived as imposed rather than negotiated. Unlike domestic systems, international law lacks robust enforcement mechanisms, making voluntary compliance essential (Crawford, 2012). When states view inquisitorial judgments as lacking legitimacy—due to limited input or perceived overreach—they may refuse to implement decisions, as evidenced by non-compliance with certain human rights tribunal rulings (Schabas, 2011). This undermines the effectiveness of international dispute resolution.
Resource Constraints and Delays
Finally, inquisitorial proceedings are resource-intensive, requiring significant financial, technical, and administrative support for investigations, expert reports, and witness protection (Cryer et al., 2014). Many international tribunals, constrained by budgets and political pressures, struggle to conduct thorough inquiries, often leading to prolonged proceedings. For example, cases at the International Criminal Court frequently span years due to evidence volume and participant numbers, frustrating stakeholders and diminishing confidence in timely justice (Schabas, 2011). Moreover, such delays exacerbate political sensitivities, as powerful states may resist or politicise investigations into human rights violations or state responsibility, further weakening institutional credibility.
Conclusion
In conclusion, while the inquisitorial procedure aims to deliver substantive justice through truth-seeking, its application in international dispute settlement reveals serious demerits. Threats to state sovereignty, risks of judicial bias, procedural inequality, legitimacy concerns, resource constraints, and delays collectively challenge its suitability for resolving complex international disputes. These limitations underscore the need for a balanced approach that reconciles the pursuit of truth with procedural fairness and state consent. Addressing these weaknesses is crucial to enhancing the credibility and effectiveness of international tribunals in an inherently political and resource-scarce environment.
References
- Cassese, A. (2008) International Criminal Law. Oxford University Press.
- Crawford, J. (2012) Brownlie’s Principles of Pubblic International Law. Oxford University Press.
- Cryer, R., Friman, H., Robinson, D., & Wilmshurst, E. (2014) An Introduction to International Criminal Law and Procedure. Cambridge University Press.
- Damaska, M. R. (1986) The Faces of Justice and State Authority: A Comparative Approach to the Legal Process. Yale University Press.
- Schabas, W. A. (2011) An Introduction to the International Criminal Court. Cambridge University Press.
- Shaw, M. N. (2017) International Law. Cambridge University Press.
