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Fairness, the Accused and Procedure in International Criminal Trials

ISBN13: 9781474466301
To be Published: June 2022
Publisher: Edinburgh University Press
Country of Publication: Scotland
Format: Hardback
Price: £85.00

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.

International Criminal Law
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: 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
Articles and Chapters in Edited Volumes
United Nations Security Council Resolutions
Procedural Decisions and Orders
i. International Criminal Tribunal for the Former Yugoslavia
ii. International Criminal Court
iii. International Criminal Tribunal for Rwanda
i. International Criminal Tribunal for the Former Yugoslavia
ii. International Criminal Court
Reports, Comments and Letters
Internet Sources