Balancing Prejudice: Fair Trial Rights and International Procedural Decisions Relating to Evidence

Forthcoming, Juan Pablo Perez-Leon-Acevedo and Joanna Nicholson (eds), Defendants and Victims in International Criminal Justice: Ensuring and Balancing Their Rights (Routledge, April 2020)

Amsterdam Law School Research Paper No. 2019-44

Amsterdam Center for International Law No. 2019-22

20 Pages Posted: 11 Dec 2019

See all articles by Rogier Bartels

Rogier Bartels

University of Amsterdam - Amsterdam Center for International Law

Date Written: December 6, 2019

Abstract

This paper, which will feature in an edited volume addressing the balancing of the rights of accused persons and of victims of crimes allegedly committed by these persons, discusses the concept of prejudice as concerns procedural matters relating to evidence in international criminal law, and before the International Criminal Court (ICC) specifically. When a (trial) chamber assesses the potential prejudice an action of a party to the proceedings or a procedural decision of the chamber will cause, it is effectively carrying out a balancing exercise, as it looks at the interest of the accused on one side and those of the Prosecution and/or victims on the other. The question is therefore when a matter, such as the admission of an item into evidence, is so prejudicial that is must be considered as is undue prejudice and thereby militating against admission. The present paper further discusses whether prejudice can only be suffered by the accused, or also by others, such as the Prosecution or – through their legal representatives – victims, by analyzing to whom fair trial rights extend.

Keywords: fair trial rights, rights of the accused, international criminal law, international criminal procedural law, International Criminal Court, International Tribunal for the former Yugoslavia, rights of victims, interests of justice, prejudice

JEL Classification: K4, K14, K33, K42

Suggested Citation

Bartels, Rogier, Balancing Prejudice: Fair Trial Rights and International Procedural Decisions Relating to Evidence (December 6, 2019). Forthcoming, Juan Pablo Perez-Leon-Acevedo and Joanna Nicholson (eds), Defendants and Victims in International Criminal Justice: Ensuring and Balancing Their Rights (Routledge, April 2020); Amsterdam Law School Research Paper No. 2019-44; Amsterdam Center for International Law No. 2019-22. Available at SSRN: https://ssrn.com/abstract=3499558 or http://dx.doi.org/10.2139/ssrn.3499558

Rogier Bartels (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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