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The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY

By

Judge Patrick Robinson*

 

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Introduction

The right to a fair trial is an ancient one and is synonymous with the trial process itself. It would be nonsense to speak of the permissibility of an unfair trial. After centuries of implementation in practice, the right to a fair trial, which was finally codified in the international human rights instruments following World War II, is now universally recognized.

In this article, I will endeavour to trace the right to a fair trial from its early roots up to the present day. Understanding its long history and realizing how little it has changed over the centuries clearly demonstrate its fundamental character and its status as a rule of customary international law. I will also consider whether it qualifies as a peremptory norm of general international law or jus cogens. Furthermore, a brief survey will be undertaken to show how the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has integrated this right into its legal system.

Obscuring Joint Criminal Enterprise Liability: The Conviction of Augustine Gbao by the Special Court of Sierra Leone

By

Jennifer Easterday*

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Introduction

Joint criminal enterprise, or JCE, is an important concept in international criminal law. The development of JCE has been controversial from the beginning, and many scholars have called for limited and cautious application of a principle that could lead to “guilt by association.”[1] Indeed, one scholar argues that the JCE doctrine has the potential “to stretch criminal liability to a point where the legitimacy of international criminal law will be threatened.”[2] This note does not argue for or against the JCE principle as a concept when it is correctly applied by judges. However, it does discuss how the recent application of joint criminal enterprise by the Special Court for Sierra Leone (“SCSL”), in its conviction of Augustine Gbao, demonstrates the consequences of taking JCE liability too far—beyond the edges of the law.

This note begins by briefly discussing the current doctrine for joint criminal enterprise liability. It then examines the doctrine’s application by the SCSL, and argues that the Court’s recent decision to bifurcate the requirement of a common plan into two elements, a non-criminal objective and a criminal means, facilitated a misapplication of the law by the Appeals Chamber and the subsequent wrongful conviction of Gbao. The bifurcation decision supported an overly broad and elastic JCE pleading. Based on this broad pleading, the SCSL convicted Gbao for crimes he did not intend to commit. This judicial mistake, in turn, has had disastrous effects for the accused and threatens the legitimacy of international criminal law.[3]

Ad-hoc Tribunals: The Failure to Contribute to Precedence-setting for a Universal Model of International Justice

By

Masayoshi Mukai*

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Introduction

More than sixty years after the Nuremburg trials, international war crimes tribunals remain in their infancy. While the International Criminal Court, or ICC, has been championed as a force to combat genocide and war crimes, a judicial void lingers years after its creation. Legal scholar William Burke-White observes that

the creation of the ICC has given states an excuse to shift, at least rhetorically, the burdens of prosecuting international crimes from national governments to the new international tribunal. As a result of unrealistic expectations and limited resources, the Court may well be seen as a failure.[1]

As an alternative, Burke-White proposes a policy of “proactive complimentarity,” which would require the ICC to “cooperate with national governments and use political leverage to encourage states to undertake their own prosecutions of international crimes.”[2] This raises an important question regarding international law: Is the expectation of justice indeed “unrealistic”? This article proposes a new direction for international war crimes prosecutions—one that recognizes that every war crime tribunal that appeals to universal jurisdiction as the impetus behind its objective has not only the ability, but also the obligation, to aid in the construction of a universal model of international justice. The weaknesses of the ICC are not inherent to the ideal of international justice, but are distinct to the ICC’s governing statutes, and the ICC’s means—or lack thereof—to enforce them. War crimes tribunals, as evident with the Extraordinary Chambers of the Courts in Cambodia, or ECCC, that take on the responsibility of educating the public[3] have deviated from their purpose as trial courts governed by an objective rule of law. Political and social forces have transformed the war crimes tribunal into a comprehensive humanitarian gesture by adopting obscure goals and responsibilities extraneous to its true purpose. Further, ad-hoc tribunals, when custom-tailored, severely limit the contributions that can be made to subsequent prosecutions. The current model of international justice should be modified to perceive international justice as a progression, and every tribunal and international court as the predecessors to what can evolve into a fully functional system of institutional international justice.