Rights or Privileges: Evaluating the Framework of Protection of Fair Trial Rights in International Criminal Law Practice

Abstract

The evaluation of the rights protection regime of International Criminal Tribunals (ICTs) explores the unique framework of human rights protection in international criminal justice. The legislative structure and jurisprudence of the tribunals reveal prioritisation of the minimum guarantees of fair trial, subject to the overarching right of the accused to a fair and expeditious trial; an emphasis of the rules of procedure and evidence as guiding the exercise of fair trial rights; the role of the prosecutor as the ‘watchdog’ of fair trial rights in the pre-trial phase; the primary responsibility of accused persons to seek to exercise their rights and draw the attention of the court to any violations. The tribunals have demonstrated commitment to a culture of fulfilment of human rights to the extent of relinquishing jurisdiction in cases of gross violation of the rights of the accused that would affect the court’s integrity. However, the mandate of ICTs to realise human rights is constrained by lack of a legislative framework for remedies, the dynamics of the political context in which the tribunals are established and operate, lack of capacity to enforce orders against states, and lack of a specialised procedure to address human rights violations promptly. There is need to reinforce the capacity of the courts to abide fully by internationally recognised norms relating to the rights of suspects and accused persons.