The Right to a Fair Trial under Article 14 of the ICCPR

2021 ◽  
Keyword(s):  
International Law ◽  
International Criminal ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Political Rights ◽  
Criminal Courts ◽  
National Courts ◽  
Treaty Interpretation ◽  
The Right ◽  
Preparatory Work

This is the companion book to The Right to a Fair Trial in International Law. As we observe in that book, understanding the right to a fair trial may require reference not only to its interpretation by courts, treaty bodies, special rapporteurs, experts, and scholars, but also to the preparatory work of the treaty (travaux préparatoires) and the circumstances of its conclusion. The travaux are a supplementary means of interpretation, used to confirm the meaning resulting from the application of principles of treaty interpretation or to determine the meaning when the interpretation ‘leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable’. For this reason, each chapter of The Right to a Fair Trial in International Law contains detailed analysis of the relevant treaty provisions of the International Covenant on Civil and Political Rights (ICCPR), including the travaux. More than 50 years have passed since the ICCPR was opened for signature. The right to a fair trial remains one of the most fundamental rights, and its promotion and protection is as vital as ever. For more than a half-century, the ICCPR has been interpreted by international and regional human rights bodies as well as national courts, legislators, practitioners and academics. Its terms and basic tenets are reflected in national constitutions and laws and the statutes of international criminal courts. Different views on what is conveyed by the treaty’s language are inevitable. It is hoped that this publication will assist with understanding what the drafters intended.

Introduction

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Human Rights ◽  
International Law ◽  
Fair Trial ◽  
Political Rights ◽  
Starting Point ◽  
Civil And Political Rights ◽  
The Right ◽  
Preparatory Work

This introductory chapter provides an overview of the right to a fair trial. An unfair trial can be devastating to an individual defendant—removing their liberty, destroying their reputation, even taking away their life. Unfair trials are also damaging to entire societies as they are used to undermine democracy and oppress minorities. As such, the right to a fair trial is one of the most fundamental components of human rights. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) is the starting point and organising principle of the right to a fair trial, but the scope and content of the right is not always easy to discern given the multitude of international-law sources that define it. Understanding the right to a fair trial may require reference not only to its interpretation by courts, treaty bodies, rapporteurs, experts, and scholars, but also the preparatory work of the treaty and the circumstances of its conclusion.

scholarly journals ‘Too High’, ‘Too Low’, or ‘Just Fair Enough’?

2019 ◽  
Vol 17 (2) ◽  
pp. 351-368
Author(s):  
Joanna Nicholson
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
International Criminal ◽  
Fair Trial ◽  
International Human Rights Law ◽  
Criminal Courts ◽  
International Human Rights ◽  
International Human ◽  
The Right ◽  
Human Rights Standards

Abstract That an accused receives a fair trial is essential to the legitimacy of international criminal courts and tribunals. However, how best to interpret the right to a fair trial in order to maximize the legitimacy of international criminal courts and tribunals’ decision-making? Some argue that international criminal courts and tribunals should aspire to the highest standards of fairness and should aim to set an example for domestic courts in this regard. Others argue that the unique context within which international criminal courts and tribunals operate allows them, at times, to interpret the right to a fair trial in a way which falls below minimum international human rights standards. This article examines both of these positions and finds both to be problematic. Rather, the article argues that international criminal courts and tribunals should aim for a middle path, the ‘fair enough’ standard, when interpreting the right to a fair trial. In situations where a different standard than that found within international human rights law is applied, international criminal courts and tribunals should expend greater effort in being open and clear as to why this is so, and should take care in communicating this to their audience, including victims and the accused. By doing so, the legitimacy of their decision-making will be enhanced.

Monetary Compensation as a Remedy for Fair Trial Violations under International Criminal Law

2015 ◽  
Vol 18 (1) ◽  
pp. 71-99 ◽  
Author(s):  
Yahli Shereshevsky
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Fair Trial ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
International Crimes ◽  
Monetary Compensation ◽  
Effective Remedy ◽  
The Right

When international criminal courts face violations of the right to a fair trial, they encounter a dilemma: if they provide a significant remedy, such as a stay of proceedings, the remedy inevitably undermines the ability to punish the perpetrators of international crimes; on the other hand, if they grant a minimal remedy or no remedy at all, the right to a fair trial is undermined. This dilemma has led to the adoption of an interest-balancing approach to remedies. Under this approach, sentence reduction plays a prominent role in remedying fair trial violations that do not undermine the court’s ability to accurately determine the accused’s guilt. This Article argues that sentence reduction is an inadequate remedy, since it inevitably either harms the goals of international criminal sentencing or does not provide an effective remedy for violations of the right to a fair trial. Instead, monetary compensation should be the remedy for such violations. By granting monetary compensation, the court creates a separation between the punishment and the remedy and thus can usually provide an effective remedy for the accused without harming the main goals of international criminal justice.

scholarly journals The Right to Perform Rescue at Sea: Jurisprudence and Drowning

2020 ◽  
Vol 21 (3) ◽  
pp. 598-619
Author(s):  
Itamar Mann
Keyword(s):  
International Law ◽  
International Criminal ◽  
Civil Disobedience ◽  
International Criminal Law ◽  
Law Of The Sea ◽  
Political Rights ◽  
Refugee Law ◽  
Civil And Political Rights ◽  
The Right ◽  
Accountability Gap

AbstractFraming largescale migrant drownings as violations of international law has so far not been a straightforward task. The failures of doing so, both in scholarship and in activism, have often revealed important limitations of international law, and a form of rightlessness that is hard-wired in it. Through an assessment of arguments about drowning, framed in the vocabularies of the right to life, refugee law, the law of the sea, and international criminal law, difficulties surrounding the notion of jurisdiction persist: The maritime space has often functioned as a kind of “legal black hole.” Considering such difficulties, this Article suggests that shifting the focus from migrant rights to the civil and political rights of volunteers coming to the rescue, may help in closing the accountability gap. It thus seeks to articulate and conceptualize a form of maritime civil disobedience among rescue volunteers, which may provide the link for eliminating migrant rightlessness at sea.

14. International Criminal Law

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Courts ◽  
Political Will ◽  
National Courts ◽  
International Criminal Tribunals

This chapter addresses the prosecution of crimes in international criminal courts according to international—not national—criminal law. International law has long recognised that certain conduct, for example piracy and slavery, are crimes against international law which may be tried by international bodies or by any State. This principle has been expanded to cover more substantive crimes. International mechanisms for criminal accountability may be established where national courts have failed or are unable to try offenders due to a lack of political will, insufficient resources, deficiencies in national law, and/or ongoing conflict. The establishment and jurisdiction of the existing international criminal tribunals, including the International Criminal Court, are considered.

International Criminal Courts and the Right to Information

2017 ◽  
Vol 15 (5) ◽  
pp. 953-983
Author(s):  
Olga Kavran
Keyword(s):  
International Criminal ◽  
Fundamental Rights ◽  
Freedom Of Information ◽  
Criminal Courts ◽  
Criminal Proceedings ◽  
International Courts ◽  
The Public ◽  
Full Compliance ◽  
Right To Information ◽  
The Right

Abstract Transparency of criminal proceedings is enshrined in international human rights instruments and the statutes of international criminal courts and tribunals. It is one of the fundamental rights of the accused and also a right of the public to be informed about the work of international judicial institutions. This article considers the rights at issue and looks at how international courts have discharged their duty to provide information to those interested in their work. It discusses freedom of information and what it means to conduct public trials at the international level. It analyses the public’s right to know and how it should apply to international judicial institutions. The article provides concrete proposals for measures that could be adopted to ensure full compliance with the freedom of information guarantees.

The Flotilla Incident from the Perspective of International Law and the Judicial Rights of the Victims

2020 ◽  
pp. 51-72
Author(s):  
Ömer Bedir
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Courts ◽  
National Courts ◽  
Humanitarian Mission ◽  
Bilateral Agreement ◽  
The Right ◽  
Union Of The Comoros ◽  
Israeli Soldiers

The Mavi Marmara flotilla, which sailed for a humanitarian mission and aimed to break the Israeli blockade to Gaza, was intercepted by the Israeli soldiers on high sea on 31st May 2010. In this raid, nine civilians have lost their lives on the spot and 55 others were wounded. States and their agents can be held accountable if they commit crimes. Therefore, the Mavi Marmara victims have the right to sue at national and international level the Israeli officers who took part in the operation. Some victims have filed criminal and civil cases before the Turkish courts against Israel and its officers. Besides these judicial cases brought before the national courts, a referral was also made by the Union of the Comoros, flag country of the Mavi Marmara vessel, to the International Criminal Court. Meanwhile, Turkey and Israel have signed a bilateral agreement for the compensation of the bereaved  families. This compensation agreement clears Israel and its officers off all legal responsibilities arising from the flotilla incident before the Turkish courts. This bilateral agreement is a legal obstruction imposed to the victims in their quest of justice. The Turkish Court of Cassation, in its recent decisions, has requested the courts of first instance to take into consideration the provisions of the said agreement.  Despite the above mentioned agreement, the victims shall have still the right to sue the Israeli officials responsible for the flotilla incident before national, foreign and international courts, on the grounds of crime against humanity, provided that the necessary requirements are fulfilled.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

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