The War Crimes of Denying Judicial Guarantees and the Uncertainties Surrounding Their Material Elements

Abstract

In July 2020 the International Criminal Court opened the trial in the Al Hassan case. For the first time in the history of international criminal justice a defendant is being tried with the charge of the war crime of sentencing or execution without due process in the context of a non-international armed conflict. Together with its equivalent in international armed conflicts – the war crime of denying a fair trial – this offence falls within the category of the war crimes of denying judicial guarantees. Although there are differences in their constitutive elements, both offences prohibit states and armed non-state actors from depriving prisoners of war and civilians of certain minimum judicial guarantees. The provisions that regulate these two crimes, however, present interpretative and practical issues which, so far, have not received sufficient consideration. Most notably, the material elements of the offences raise a range of interpretative doubts and are of cumbersome application. The objectives of the article are (i) to identify the issues posed by the material elements of the war crimes of denying judicial guarantees, (ii) to warn of the pitfalls hidden by the interpretation of the offences, and (iii) to trigger the debate on the issues that the crimes raise.