Rights Dualism: The International Criminal Tribunals’ Two-Track Approach to the Rights of the Accused

Abstract

If we are to continue to pass judgment on broadscale criminal responsibility for leadership roles in civil war — responsibility of the scope alleged against Radovan Karadžić and Ratko Mladić, for example — we are committed to a pluralism, or at least a dualism, of dubious credentials. Cases of broadscale responsibility produce an approach to the accused's rights that is different from, and incompatible with, the one that has been developed around domestic criminal law. There is a direct causal link between the salient features of leadership trials, the law of evidence put in place by tribunal judges to support such trials, the use that the admitted evidence is put to, and, at the end of the line, the fair-trial rights of the accused. The option to persist with grand leadership cases commits us to a moral pluralism that takes the form of a rights dualism. Can we tolerate a two-track approach to the accused's rights?

Keywords: criminal law, rules of evidence, rights of the accused, international criminal tribunals, ICTY, ICTR, rights dualism