Defendants and Victims in International Criminal Justice

Ensuring and Balancing Their Rights

Juan Perez-Leon-Acevedo, Joanna Nicholson, Juan Pablo Perez-Leon-Acevedo

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781032236216
• eBook ISBN: 9781000037241
• Edition: 1
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

This volume considers a variety of key issues pertaining to the rights of defendants and victims at International Criminal Courts (ICTs) and explores how best to balance and enhance the rights of both in order to ensure the effectiveness and efficiency of international criminal proceedings.

The rights of victims are becoming an increasingly important issue at ICTs. Yet, at the same time, this has to be achieved without having a detrimental impact upon on the rights of the defence and the efficiency of the courts. This book provides analyses of issues on the rights of both the accused and the victims. By discussing matters concerning these two pivotal actors in international criminal justice within the same volume, the work highlights that there are intrinsic and intense conflicting and converging relationships between victims and the accused, particularly in terms of their rights. While most of the chapters focus mainly on either the accused or the victims, others discuss both at the same time. The work strikes a fine balance between, on the one hand, classic topics on the rights of the accused and the rights of the victims and, on the other, topics which have been largely unexplored and/or which require new angles or perspectives. Additionally, there are some chapters which approach both the rights of the accused and the rights of the victims in new contexts and/or under novel perspectives. The book as a whole provides a discussion of the two sides of this important coin of international criminal justice. The work will be an essential resource for academics, practitioners and students with an interest in the field of international criminal law. It will also be of interest to human rights scholars who are working with the rights of victims and the accused.

1
Introduction¹

Juan-Pablo Pérez-León-Acevedo and Joanna Nicholson

1 This chapter and the present book have been funded by PluriCourts – Research Council of Norway, Project 223274.

Setting the scene and about this book

International and hybrid criminal courts and tribunals (ICTs) are not human rights courts, yet human rights are firmly embedded within their normative framework and practice. Human rights function as important standards that help both assess and enhance the legitimacy and effectiveness of ICTs. This is particularly so in relation to the, at times competing, rights of defendants and victims in the international criminal justice process.

That a defendant has received, and is perceived as having received, a fair trial is vital to the legitimacy, effectiveness, and legacy of the ICTs. Assuring the human rights of defendants at an international level is not simply a case of transposing domestic standards; rather, a host of complex considerations come into play. The particular context and mandate of ICTs requires that a mechanical application of human rights standards should be avoided. Given this, how should ICTs best assure the right of defendants to a fair trial?

At the same time, the rights of victims are becoming an increasingly important issue at ICTs. When ICTs re-emerged onto the world stage in the 1990s, victims were initially relegated to the role of witnesses, but the International Criminal Court (ICC) and subsequent ICTs have expanded their roles to participants, civil parties and/or reparations claimants, and ICTs must take their rights into account. However, how can this be achieved without having a detrimental impact upon the rights of the defence and the efficiency of the ICTs?

Within this context, the present volume considers a variety of key issues pertaining to the rights of defendants and victims at ICTs and explores how best to balance and enhance the rights of both in order to ensure the effectiveness and efficiency of international criminal proceedings. Due to its importance and global scope, the authors in this volume tend to focus on the ICC, yet, attention is also given to other ICTs, in particular the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL), and the International Criminal Law Section of the Prospective African Court of Justice and Human Rights (ACJHR). Moreover, all chapters to a larger or lesser extent contain analysis, findings or conclusions which are relevant to, or concern, international criminal justice institutions as a whole rather than one specific court.

Against this rationale, the present volume seeks to realise two main aims. First, it provides analyses of issues on the rights of both the defendant and the victims at ICTs. By discussing matters concerning these two pivotal actors in international criminal justice within the same volume, the book aims to highlight that there are intrinsic and intense conflicting and converging relationships between victims and defendants, particularly in terms of their rights. Whereas most of the chapters in the present book focus mainly on either the defendant or the victims, others endeavour to tackle both at the same time. The book as a whole provides a discussion of the two sides of this important coin of international criminal justice.

Second, the book strikes a fine balance between, on the one hand, ‘classic’ topics on the rights of defendants and the rights of the victims and, on the other, topics which have been largely unexplored and/or which require new angles or perspectives. Additionally, there are some chapters which particularly endeavour to approach both the rights of the defendant and the rights of the victims in new contexts and/or under novel perspectives.

In terms of existent academic literature, this volume arguably constitutes an original addition. It complements materials which are mainly focused on either the rights of the defendant at ICTs² or the rights of victims at ICTs.³ In this context, the rights of defendants and victims are addressed together in the same volume rather than in a separated or fragmented manner which has so far been the trend in existent legal academic publications. Although some materials have examined the rights of both the accused and victims at ICTs, these have primarily focused on general principles and common rules.⁴ Conversely, the book chapters of the present volume engage in thorough and up-to-date discussions of specific or novel topics and issues on ensuring and balancing the rights of the defendants and victims in international criminal justice institutions.

2 See, for example: Yvonne McDermott, Fairness in International Criminal Trials (Oxford University Press 2016); Caleb H. Wheeler, The Right to be Present at Trial in International Criminal Law (Brill, 2019).

3 See, for example: Brianne McGonigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings (Intersentia 2011); Luke Moffett, Justice for Victims Before the International Criminal Court (Routledge 2014); Juan Perez-Leon-Acevedo, Victims’ Status at International and Hybrid Criminal Courts: Victims as Witnesses, Victim Participants/Civil Parties and Reparations Claimants (Abo Akademi University Press 2014).

4 See, for example: Göran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev, and Salvatore Zappalà (eds) International Criminal Procedure. Principles and Rules (Oxford University Press 2013).

The chapters of the book

The book begins with a chapter exploring the use of human rights law at the ICC. In Chapter 2, Sergii Masol examines Article 21(3) of the Rome Statute of the ICC, which obliges the court to interpret and apply the law in a consistent manner with internationally recognised human rights. The chapter provides an analytical framework to the process of identification of human rights to be considered by these institutions, particularly the ICC. As Masol states, knowledge of the contents of the rights of defendants and victims at the ICC (and certainly other international and hybrid criminal tribunals) constitutes a necessary first step in ensuring and balancing the rights of defendants and victims. Indeed, he suggests that Article 21(3) is a tool that enables the ICC to clarify diverse elements of the rights of defendants and victims via references to external human rights norms. Masol’s principal focus is to determine in which legal sources the ICC can find internationally recognised human rights, including national law, international soft law and international hard law at both the universal and regional levels. Masol’s main argument is that Article 21(3) of the Rome Statute empowers the Court to invoke human rights provided that these are internationally recognised. By following this premise, he sustains and finds that neither national acceptance of a norm in light of international silence, nor a soft law norm suffices. In turn, regional human rights norms can be invoked by the ICC if they are accepted within a broader normative framework. However, Masol argues that a universal human rights norm should always outweigh a regional human right norm, even if the latter provides a higher level of protection than the former does in the regime of the ICC. Conversely, universal norms meet the requirement of being internationally recognised. He emphasises that Article 21(3) of the Rome Statute refers to human rights which are both international and binding.

How are matters involving defendants and victims in international criminal justice best addressed in different institutional landscapes? This question is explored in Chapter 3, where Oliver Windridge discusses how the defence and victims are expected to fair at the first ever regional criminal court, the ACJHR, particularly its International Criminal Law Section. He focuses on two key instruments of the yet-to-be-established ACJHR, namely, the Protocol on the Statute of the ACJHR and the Protocol on Amendments to the Protocol on the Statute of the ACJHR. Windridge compares the relevant provisions with those contained in the Statutes of the ICC, the Special Court for Sierra Leone (SCSL) and the International Criminal Tribunal for Rwanda (ICTR), with the goal of determining whether the prospective ACJHR may be considered to be a progressive or retrograde institution concerning the rights of defendants and victims

The chapter begins by discussing the establishment of the ACJHR, before analysing and comparing the normative provisions on defence rights. Here, Windridge pays attention to norms that endeavour to guarantee the respect for the rights of defendants, including the formation of a defence office, the appointment of public defenders, as well as the incorporation of a ‘Principal Defender’. He then examines provisions on victim participation, also paying attention to similar developments at other international criminal justice institutions. At this point, the author critically points out that there is some ambiguity in normative provisions on victims and related potential matters involving victim participation in trial proceedings. Windridge concludes with a set of observations and recommendations, including suggestions on areas that require further clarification via the adoption of additional protocols or court rules as well as judicial decision making.

The focus of the book then moves to examining particular defence rights and how these can be impacted or affected by the rights of victims. In Chapter 4, Rogier Bartels touches on the wider issue of whether parties other than the defendant, namely victims and the prosecutor, can be said to have a ‘right’ to a fair trial, when he explores the issue of when the ICC has found that prejudice has been caused to a party to the proceedings in procedural matters relating to the admission of evidence.

A corollary of the defendant’s right to a fair trial is the requirement that a court assess whether prejudice has been caused to the defendant by the actions of the other party, for example by the late introduction of incriminating evidence by the prosecutor or the late addition of new prosecution witnesses. The court is generally required to evaluate the prosecution’s request and issue a decision as to whether or not prejudice has been caused to the defendant. Evidence of prejudice is insufficient in itself, rather a certain level of prejudice must be shown to have occurred, undue prejudice.

Bartels begins by discussing how the notion of prejudice has been interpreted by the ICC in cases involving procedural decisions and how the court has determined that the prejudice was undue. He then analyses cases where the prosecution has argued that prejudice has been caused to them, for example by the late admission of defence evidence. He shows that the ICC has applied the same rules to prosecution and defence requests. While this may accord with the principle of equality of arms, Bartels wonders who is being prejudiced by late admission of defence evidence – the prosecution? The victims? The international community? He finds that the ICC has treated the prosecution as acting in the interests of victims and therefore as having a right to a fair trial, but queries whether this approach should be followed throughout the case, as while the prosecution must be able to properly present their case, this cannot be to the detriment of the rights of the defence.

How an ICT gains access to evidence and information can seriously impact a defendant’s right to a fair trial. Alice Riccardi’s chapter, Chapter 5, addresses the issue of smart sanction regimes, namely sanctions that are directed against particular individuals and entities. She explores the growing cooperation between the ICC and the United Nations Security Council Sanctions Committees, and asks whether this could impact the defendant’s s right to a fair trial and endanger the legitimacy of the court.

The proposal that smart sanctions could be used in connection with ICC fugitives has received significant support, for example from the ICC Assembly of States Parties and the Prosecutor, in the hope that their use could lead to fugitives’ arrest and surrender. While a smart sanction has yet to be issued in connection with an ICC fugitive, Riccardi finds evidence that coordination and information sharing is taking place between sanctions committees and the court. However, there is currently no legal framework or guidance concerning this information sharing process, raising concerns, both as to the potential impact upon a defendant’s right to a fair trial and the impact upon the Court’s overall legitimacy.

Riccardi explores the legal consequences of sanctions should they be adopted in connection with pre-trial proceedings, as well as examining the process of information sharing between the court and sanctions committees. She argues that using smart sanctions to tackle ICC arrest dilemmas would associate the court with a tool that violates the human rights of those who are targeted; would politicise court proceedings; and would ultimately affect the court’s legitimacy. She recommends that the court re-think how it cooperates with these bodies in future, both as a matter of law and of policy. Consideration should be paid as to how such cooperation can impact upon a defendant’s fair trial rights during the pre-trial process and how it affects victims’ perception of the court as an independent, unbiased actor.

Another issue which an impact both victims and defendants is whether a case can or should proceed in the absence of the defendant. In Chapter 6, Talita de Souza Dias and Tsvetelina van Bentham focus on two ICTs which adopt contrasting approaches to this matter: the ICC, which as a general rule requires the presence of the defendant, and the STL, which allows trials in absentia. The authors observe that there is significant legal uncertainty as to the legal nature of the defendant’s presence before these courts, with it being viewed variously as a right of the defendant, an obligation owed to victims and witnesses; an institutional demand; or a mixture of these.

The authors discuss what is meant by presence at trial and in absentia trials and the relationship between the two concepts, before examining the approaches of the ICC and STL in more detail. They find that the ICC conceives of presence at trial as a type of unwaivable right of the defendant. As such, in absentia trials are allowed only in exceptional circumstances. The STL, on the other hand, adopts a more relaxed approach to presence, whereby in cases where an accused has absconded or cannot be found, presence is treated as a waivable right, not a duty. The authors argue that neither court’s approach is satisfactory: neither complies with human rights law and neither succeeds in factoring in the different interests at stake, including those of defendants and victims. In order to overcome this, they advocate that the courts follow the approach to presence adopted in human rights law, whereby presence can be waived by an unequivocal waiver of the defendant. Furthermore, the authors recommend that a more flexible and case-by-case approach should be adopted which incorporates the various interests at play in international criminal justice, particularly those of the defendant, victims and witnesses.

It is important that defendants should have effective fair trial rights, but what if the evidence shows that a challenge on the basis of a particular right is probably doomed to fail? Michail Vagias discusses just this eventuality in Chapter 7, concerning the defendant’s right to challenge the jurisdiction of an ICT. This right is intended to operate as a fundamental guard against unwarranted judicial process, however, as Vagias explains, no case has ever been rejected in international criminal proceedings following a successful defence challenge to jurisdiction, begging the question of whether the defence gains any benefit from mounting such a challenge in the first place.

Vagias explores the defence success rate before four courts, the ICTY, ICTR, SCSL and the ICC, finding that less than one out of ten defence challenges to the jurisdiction of these courts has been successful. He pinpoints several possible reasons for this lack of defence success: prosecutorial caution; defence misuse of jurisdictional challenges; and inconsistency surrounding the interpretation and application of jurisdictional concepts. The author is particularly critical of the unclear jurisprudence emanating from these ICTs concerning important questions such as proof of facts, which have continually moved the goal posts for defendants seeking to challenge on jurisdictional grounds.

Although victims are not particularly visible in jurisdictional challenges, given that they occur at such an early stage in the judicial process, it is nevertheless the first time in the proceedings that the rights of defendants and victims are pitted against each other. Vagias finds that the current body of law in this area is strongly pro-institutional and pro-victim and argues that this extremely low defence success rate concerning jurisdictional challenges should give cause for serious reflection. If defendants and their advisors view a challenge based on this fundamental right as having minimal to no chances of success, making it is an ‘illusory’ right, it will ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Biographies of contributors and editors
• Foreword: Whom to protect?
• 1 Introduction
• 2 The content of internationally recognised human rights under the Rome Statute of the International Criminal Court
• 3 For better or worse: The rights of defendants and victims before the African Court of Justice and Human and Peoples’ Rights
• 4 Balancing prejudice: Fair trial rights and international procedural decisions relating to evidence
• 5 UNSC sanctions regimes and the ICC: Arguments against cooperation for arrest and investigative purposes in light of defendants’ rights
• 6 The presence of the accused during trial: Bridging the gap between mandatory presence and in absentia trials
• 7 Useful in theory, useless in practice? The right of the defence to challenge the jurisdiction of international criminal courts and tribunals
• 8 The ICTY and the balancing act: Reconciliation as rehabilitation
• 9 The politics of victim participation in the International Criminal Court: Does politically motivated victim participation have an impact on the legitimacy of the proceedings?
• 10 Protecting victims who testify before the ICC: Tensions and balances with the defendants’ right to a fair trial
• 11 The legal effect of a reparations order and the rights of those persons subject to it
• 12 Final reflections on defendants and victims in international criminal proceedings
• Index