Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law
THE ASHGATE RESEARCH COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES, William A. Schabas, Yvonne McDermott and Niamh Hayes, eds., Aldershot: Ashgate, 2012
16 Pages Posted: 14 Nov 2011 Last revised: 19 Mar 2012
Date Written: November 14, 2011
Abstract
This chapter examines two key issues which have arisen as regards the international criminal tribunals' interpretation of the right to a fair trial, namely the parties to whom rights at trial attach, and the use of defendants' right to trial without undue delay as a bar to the exercise of other rights in some circumstances, whilst in other situations, a breach of the right to trial without undue delay has proven almost impossible to assert. These issues illustrate the piecemeal fashion in which questions on the fundaments of fairness in international criminal law have been answered, the lack of an overarching theory guiding the procedural fairness of trials, and international criminal law's resultant failure to serve a standard-setting function for the fairness of trials.
Part 1 of this piece outlines some instances where the ICTY, ICTR, SCSL and ICC have extended rights of the accused to other actors at trial, with a specific focus on the prosecutor as a new rights-holder at trial. The excruciating irony of this unfounded extension is that it often has a detrimental effect on the rights of the accused, whom the enumerated rights were intended to protect in the first place. On occasion, and in a sporadic fashion, the international tribunals have also elevated certain interests of other parties to the status of rights, which can also come to bear on the position of the only true rights holder at trial- the accused. Part 2 aims to illustrate the ease with which judges can assert the right to trial without undue delay and the need for expedience as a reason for a decision, compared to the immense hurdles which an accused must overcome to show that the right has been violated.
Keywords: International criminal law, international criminal procedure, retrial, expedience, fair trial, right to a speedy trial, International Criminal Court, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, Special Court for Sierra Leone, ICC, ICTY, ICTR
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