Fairness and Its Metric in International Criminal Procedure

Abstract

This Chapter addresses the questions of whether and why ‘fairness’ presents a suitable parameter for evaluating international criminal justice and its procedural law, and how it is to be used. The contours of ‘fairness’ in international criminal procedure will be explored from a normative perspective, as a set of binding legal standards and factors impacting on international criminal practice. This focus aims at highlighting the methodological position that is suggested for adoption in any appraisal of the procedural arrangements in the international criminal courts. International human rights law (IHRL), as the ‘external’ framework of fairness and a yardstick for review of the performance of the tribunals, shapes their internal practices in several ways. The normative effects of IHRL in the tribunals’ legal environments, the legal grounds for this impact, and specific paths of legal and policy reasoning employed by the courts when drawing upon the notions of IHRL (and when departing from them) are questions which warrant a closer look. What value do the IHRL norms and precedents have in the application of statutes and rules of procedure and evidence? What type of procedural outcomes attracts the finding of inconsistency with that law, and what are the consequences? If the tribunals are to be accorded a certain ‘margin of appreciation’ in applying the IHRL provisions within their specific context, what are the boundaries of the normatively acceptable contextual interpretation and application of human rights law? The answers to these queries would assist in establishing how the evaluative criterion of ‘fairness’ is to be applied and what weight is to be assigned to IHRL and jurisprudence in the domain of international criminal courts.

Keywords: Fairness, international criminal procedure, sources of law, method of interpretation, minimum standards