The Right to Silence in the Hague International Criminal Courts

55 Pages Posted: 25 Jan 2013

See all articles by Mark Berger

Mark Berger

University of Missouri at Kansas City - School of Law

Date Written: June 20, 2012


The War Crimes Tribunals and the International Criminal Court were established as international judicial institutions charged with the task of prosecuting individuals responsible for committing such human rights offenses as genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and violations of the laws or customs of war. These judicial bodies function in much the same way as domestic criminal courts and as such they have had to balance the institutional goal of prosecuting human rights offenders with the need to respect appropriate limits on the exercise of their authority. This article explores how that balance has been achieved with respect to the privilege of silence, a right which is widely recognized as a necessary restraint on the exercise of criminal law enforcement authority. It looks at limitations developed for the questioning of suspects, use of adverse inferences against those who maintain their silence, limitations on the authority to compel the production of non-testimonial evidence, application of the privilege of silence to witnesses, restraints on the imposition of discovery and disclosure requirements on suspects, and the use of the exclusion remedy where applicable standards have been violated.

Keywords: right to silence, international human rights, European Court of Human Rights, War Crimes Tribunal, International Criminal Court, international criminal law, ICTY, Yugoslavia, ICTR, Rwanda

JEL Classification: K33, K41, K42

Suggested Citation

Berger, Mark, The Right to Silence in the Hague International Criminal Courts (June 20, 2012). University of San Francisco Law Review, Vol. 47, No. 1, 2012. Available at SSRN:

Mark Berger (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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