Human Rights in International Criminal Proceedings – The Impact of the Judgement of the Kosovo Specialist Chambers of 26 April 2017

34 Pages Posted: 9 Dec 2018 Last revised: 22 Nov 2019

See all articles by Goran Sluiter

Goran Sluiter

University of Amsterdam - Faculty of Law; Rethinking SLIC Project

Date Written: October 23, 2018

Abstract

By their very nature international criminal tribunals will in their operation impact upon individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings.

However, the circumstances under which international criminal tribunals are established are often complex while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position and rank in the applicable sources of law during the creation of international criminal tribunals. In practice, the effect of human rights law in international criminal proceedings has proven at times to be problematic. Without elaborate written procedural rules, it may at times be uncertain what the precise scope of the proceedings’ interference with individual rights and liberties are, or ought to be.

On 26 April 2017 the Constitutional Chamber of the KSC has reviewed the due process content of the KSC’s newly drafted Rules of Procedure and Evidence (RPE). It concluded that the RPE adopted by the Judges were inconsistent with human rights in a number of ways, especially because of lack of sufficiently detailed rules governing investigations which interfere with individual rights, such as search and seizure operations and wiretaps. It raises the question, subject of this paper, whether the KSC has raised the bar in terms of the principle of procedural legality and whether the current loose approach in international criminal proceedings to investigative powers is in violation of international human rights law. If this research question is answered in the affirmative it would necessitate a significant overhaul of the organization of international criminal proceedings, especially in its pre-trial phase.

In order to answer the aforementioned research question I will first provide an overview and analysis of the position of human rights in international criminal proceedings (2). Next, it will be examined how international criminal proceedings have been organized in relation to international human rights law (3). The paper then shifts to KSC. First, it is necessary to provide information and background on the creation of the KSC (4). The subsequent section analyses the judgement of April 2017 of the KSC’s Constitutional Chamber (5). Its impact on the protection of rights and the organization of international criminal proceedings will be the subject of section 6. The paper ends with concluding observations (7).

Keywords: Human Rights, International Criminal Law, Kosovo Specialist Chambers, International Criminal Justice

JEL Classification: K33

Suggested Citation

Sluiter, Goran, Human Rights in International Criminal Proceedings – The Impact of the Judgement of the Kosovo Specialist Chambers of 26 April 2017 (October 23, 2018). Forthcoming in William & Mary Bill of Rights Journal, Vol. 27, No. 3, 2019, Amsterdam Law School Research Paper No. 2019-23, Amsterdam Center for International Law No. 2019-12, Available at SSRN: https://ssrn.com/abstract=3285010

Goran Sluiter (Contact Author)

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

Rethinking SLIC Project ( email )

Nieuwe Achtergracht 166, 1000 BA Amsterdam
Amsterdam

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