Monetary Compensation as a Remedy for Fair Trial Violations Under International Criminal Law

Forthcoming 18 NEW CRIMINAL LAW REVIEW 71 (2015)

41 Pages Posted: 6 Mar 2014 Last revised: 15 Apr 2015

See all articles by Yahli Shereshevsky

Yahli Shereshevsky

University of Haifa - Faculty of Law; Hebrew University of Jerusalem - Faculty of Law

Date Written: February 24, 2014

Abstract

When international criminal courts face violations of the right to a fair trial, they encounter a dilemma: if they provide a significant remedy, such as a stay of proceedings, the remedy inevitably undermines the ability to punish the perpetrators of international crimes; on the other hand, if they grant a minimal remedy or no remedy at all, the right to a fair trial is undermined. This dilemma has led to the adoption of an interest balancing approach to remedies. Under this approach, sentence reduction plays a prominent role in remedying fair trial violations that do not undermine the court’s ability to accurately determine the accused’s guilt. This article argues that sentence reduction is an inadequate remedy, since it inevitably either harms the goals of international criminal sentencing or does not provide an effective remedy for violations of the right to a fair trial. Instead, monetary compensation should be the remedy for such violations. By granting monetary compensation the court creates a separation between the punishment and the remedy and thus can usually provide an effective remedy for the accused without harming the main goals of international criminal justice.

Keywords: International Criminal Law, Remedies, International Criminal Procedure, Fair Trial, ICTR, ICTY, ICC

Suggested Citation

Shereshevsky, Yahli, Monetary Compensation as a Remedy for Fair Trial Violations Under International Criminal Law (February 24, 2014). Forthcoming 18 NEW CRIMINAL LAW REVIEW 71 (2015). Available at SSRN: https://ssrn.com/abstract=2404849

Yahli Shereshevsky (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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