Closing International Law's Innocence Gap
66 Pages Posted: 19 Mar 2021 Last revised: 26 Jul 2021
Date Written: July 25, 2021
Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a longstanding gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations, which have been facilitated by the growth of national innocence organizations that increasingly work across borders. It is striking that these developments have occurred with little help from international law. Although numerous treaties recognize extensive fair trial and appeal rights, no international instrument—in its text, interpretation or implementation—explicitly recognizes the right to assert a claim of factual innocence.
We label this omission as international law’s innocence gap. The gap appears increasingly anomalous given how foundational innocence protection has become at the national level, as well as international law’s longstanding commitment to the presumption of innocence, fair trial, and other criminal process guarantees.
We argue the time has come to close international law’s innocence gap by recognizing a new human right to assert post-trial claims of factual innocence. We discuss three national models for reviewing innocence claims and highlight international law’s limited influence on these models. Next, we review the criteria for determining whether and how to categorize a human right as “new,” analyze the right to claim innocence against those criteria, explore how to define the content of the right, and address institutional and advocacy issues. A brief conclusion highlights the implications of our proposal for efforts to reform criminal legal systems and protect human rights.
Keywords: innocence, wrongful conviction, human rights, post-conviction review, due process, fair trial, right to appeal, right to a remedy
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