Human Rights Before International Criminal Courts

Abstract

International criminal courts deal primarily with high-ranking suspects whom the municipal legal systems are either unable or unwilling to prosecute, and not with immediate perpetrators of atrocities. As a rule, the former possess great power and influence. They usually have an organization supporting them, both in the commission of crimes and in their attempts to escape responsibility, and are more than able to cover up their tracks, obstruct investigations and intimidate witnesses. This has justified the use of some unorthodox mechanisms of substantive criminal law, such as command responsibility and joint criminal enterprise, as well as procedural instruments similar to those used in domestic trials for organized crime, as they both require special rules on the collection and admissibility of evidence, witness protection etc. Finally, international criminal trials frequently occur in post-conflict or ongoing conflict situations and can considerably impact international peace and security. The purpose of these trials is then much wider than mere deterrence, and allows them to become a major way of re-establishing the fundamental principles of justice and furthering the process of reconciliation.

These distinct features of international criminal proceedings make it impossible to simply transpose to them the human rights standards developed in the context of domestic criminal justice. However, this does not mean that human rights of suspects in such proceedings can be flaunted on the pretext of pursuing some higher aim. International courts and tribunals must respect the fundamental human rights of those who appear before them: this is the only way in which they can maintain their legitimacy. This paper will attempt to analyze the human rights provisions and safeguards in what can be regarded as contemporary conventional international criminal law, i.e. the statutes and the rules of procedure and evidence of the ICTY, the ICTR and the ICC. Particular emphasis will be put on any divergence between these standards and the standards of international human rights law which apply to national criminal proceedings.

Keywords: human rights, rights of the accused, international criminal courts and tribunals