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Fairness and Rights in International Criminal Procedure

Fairness and Rights in International Criminal Procedure

Author: Sophie Rigney
Publisher: Edinburgh University Press
ISBN: 9781474466318

Published In: February 2024
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781474466301

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Calls for the realignment of fairness and the rights of the accused in procedural decision-making in international criminal trials

Examines what the jurisprudence and academic literature mean for legal procedure in practice
Weaves insights from original interviews with international criminal judges and lawyers into the analysis
Analyses primary texts from the ICTY and the ICC, including the statutes, Rules of Procedure and Evidence and Regulations
Includes case studies on disclosure, the use of adjudicated facts and the protection of witnesses – issues that are integral to the operation of rights in international criminal trials

Controversial cases such as the Karadžić trial and the Bemba acquittal have highlighted the importance of fairness in international criminal trials. Through an in-depth critical analysis of procedural decisions at the ICTY and ICC between 2008 and 2018, Sophie Rigney shows that there is a clear separation between fairness and rights in practice.

Introduction: Why Fairness and Rights Matter, and What This Book Sets Out to Do

Placement of This Work in the Existing Literature

Scope and Boundaries of This Book

Structure of This Book

1. The Particular Place of International Criminal Trials: Aims and Procedure

The Aims of International Criminal Law: Variety, Divergence and Promises Unfulfilled

The Aims of the Legal System; The Aims of the Institutions; The Aims of the Trial Process

i. Ending Impunity

ii. Meaningful Voice for Victims

iii. Truth: Legal or Historical?

A Forensic Determination of an Individual’s Guilt or Innocence: Calling for a Recalibration of the Aims of International Criminal Trials

2. The Centrality of Rights and Fairness in International Criminal Trials

Rights in International Criminal Trials

Equality of Arms

‘Rights’ or Interests of Others

Why Rights?

Rights and Truth

Fairness in International Criminal Trials: Centrality Accepted

Why the Centrality of Fairness is Important (Or, What Does Fairness Do?)

i. Fairness as a Key Interpretive Tool of Trial Chambers

ii. Fairness as an Epistemic Enabler

iii. Fairness as a Legitimating Force

iv. Fairness as a Tool to Assist the Trial, Institution and Legal System to Meet Their Aims

3. The incoherence of fairness in international criminal trials

What Principles Are Required to Ensure Fairness?

To whom is Fairness Owed? The Ascendancy of the ‘Shared Process-Centred Approach’

i. Rights-Centred Approach

ii. Shared Process-Centred Approach

iii. The Ascendancy of the ‘Shared Process-Centred Approach’

What Legal Protections Are Required to Ensure Fairness? Translating Fairness to a Sui Generis System

What is the Outcome of Fairness’s Incoherence?

Fairness and Rights: Central and Related, but also Separable and Separated

4. Fairness, the Rights of the Accused and Disclosure

The Relationship between Disclosure and Fairness

The Relationship between Disclosure and The Rights of the Accused

i. The Right to Know the Case

ii. The Right to Time and Facilities to Prepare a Defence

iii. The Principle of Equality of Arms

Three Ways in Which Disclosure, Rights and Fairness are Separated in International Criminal Trials

i. Issue One: The Electronic Nature of Disclosure

ii. Issue Two: Large Volumes of Material Provided Late

iii. Fairness, Rights and Prejudice in Decision-Making

iv. The Effect of Cumulative Violations

Issue Three: Non-Disclosure at the ICC: The Role of Victims and the Use of Confidentiality Agreements by Prosecutors

i. Potential Non-Disclosure by Victims

ii. Non-Disclosure of Exculpatory Material Held by the Prosecutor

The Fractured Relationship between Disclosure, Rights and Fairness

5. Fairness, The Rights of the accused and Use of Adjudicated Facts

Adjudicated Facts in Context: Greater Use of Written Evidence

Fairness And the Use of Written Evidence and Adjudicated Facts

The Relationship between the Use of Adjudicated Facts and the Rights of the Accused

i. The Right to Examine Witnesses

ii. The Right to Time and Facilities to Prepare a Defence

iii. The Principle of Equality of Arms

Four Issues Related to The Use of Adjudicated Facts

i. Issue One: The Use of Fairness and Rights to Extend the Application of Adjudicated Facts

ii. Issue Two: Time and Facilities to Prepare a Defence, and the Shifting of the Evidential Burden

iii. Issue Three: Judicial Reformulation of Adjudicated Facts

iv. Issue Four: Fairness and Rights in Late and Inconsistent Decisions

Fairness and Rights Disconnected in Adjudicated Facts Decisions

6. Fairness, the Rights of the Accused and the Protection of Witnesses

The Need for Protection

Protective Measures

The Relationship Between Witness Protection and the Rights of the Accused

Fairness, Rights and Protection of Witnesses

Delayed disclosure and Redactions

i. Delayed Disclosure at the ICTY: The Timing of the Disclosure

ii. Delayed Disclosure at the ICC: Categories of Protected Persons

Written Evidence in Place of Oral Testimony

Conclusions

Conclusions: Closing the space between Fairness and Rights, and Reimaging the Future of International Criminal Law

Themes and Findings of this Book – The Space between the Photocopier and the Acquittal

Looking to the Future

Reimagination?

Bibliography

Books

Articles and Chapters in Edited Volumes

Theses

Treaties

United Nations Security Council Resolutions

Instruments

Judgments

Procedural Decisions and Orders

i. International Criminal Tribunal for the Former Yugoslavia

ii. International Criminal Court

iii. International Criminal Tribunal for Rwanda

Motions

i. International Criminal Tribunal for the Former Yugoslavia

ii. International Criminal Court

Transcripts

Reports, Comments and Letters

Internet Sources

Interviews

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