Right Without Remedy? The Development of the Presumption of Innocence at the International Criminal Court

International Criminal ◽

Criminal Court ◽

Presumption Of Innocence ◽

The Right ◽

Open Question ◽

Further Development

Abstract This article examines the presumption of innocence’s development at the International Criminal Court. While the presumption of innocence was hardly debated at the Rome Conference, several issues surrounding the presumption have been open to wide interpretation by the Court. This article argues that since the Rome Statute’s entry into force, the presumption of innocence goes beyond the text of Article 66 and has become a robust right that has application both inside and outside of the courtroom and has effect during the Situation, Pre-Trial and Trial phases. Despite these developments, what happens when the right is violated remains an open question. The paper will conclude that while the presumption of innocence may be better defined and more protective than it was 20 years ago, what happens in the case of a violation continues to be an area for further development.

The Tension between the Presumption of Innocence and Victims’ Participation Rights at the International Criminal Court

International Criminal Law Review ◽

10.1163/15718123-01906004 ◽

2020 ◽

Vol 20 (2) ◽

pp. 371-393

Author(s):

Michelle Coleman

Keyword(s):

International Criminal ◽

Criminal Court ◽

Presumption Of Innocence ◽

Participation Rights ◽

Right To Participation ◽

This article explores where participation rights of victims and the presumption of innocence come into conflict within the context of the International Criminal Court (icc) and whether this causes either set of rights to be violated. First it discusses the development of the right to the presumption of innocence at the icc and explains victims’ participation rights. Next it outlines how conflict between these two rights should be resolved. The article then examines three areas in which there is tension between victims’ participation and the presumption of innocence. These areas are: calling victims ‘victims’; evidence submission; and participation by questioning witnesses. Finally, the article concludes that the rights of victims and the accused can come into conflict and that in order to ensure that the right to the presumption of innocence is protected, and to provide victims with a meaningful right to participation, victims’ rights must be more clearly defined.

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

Journal of International Criminal Justice ◽

10.1093/jicj/mqaa053 ◽

2020 ◽

Author(s):

Micheal G Kearney

Keyword(s):

International Law ◽

Rome Statute ◽

Final Section ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Central Importance ◽

Right Of Return ◽

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.

Victim’s Right of Access to International Criminal Courts

Journal of Politics and Law ◽

10.5539/jpl.v10n1p279 ◽

2016 ◽

Vol 10 (1) ◽

pp. 279

Author(s):

Fazlollah Foroughi ◽

Zahra Dastan

Keyword(s):

International Law ◽

International Criminal ◽

Criminal Court ◽

International Level ◽

Human Beings ◽

International Crimes ◽

The Government ◽

The Right ◽

Right Of Access

Due to quantitative expansion and evolution in committing the crime at the international level, the scope of criminal proceedings has been widened significantly. Tolerance and forgiveness towards crimes that happen at international level not only is a double oppression on the victims, but also provide a fertile context for others to commit crimes more daringly. Thus, it is essential that international criminals are held accountable to the law and competent institution, and the realization of this issue leads to the victim satisfaction in international law. Not only in international law, but also in domestic law, show respect and protection of human rights is effective only when there is an effective justice system to guarantee the rights. Although some international crimes practically occur by the government or at least high-ranking government officials, the Statute of the International Criminal Court has reiterated this point that they only have jurisdiction over the crimes committed by natural persons rather than legal entities, which one good example is governments, and although the real victims of these crimes have been human beings, in the case of action and referring the case to the competent international courts, these are the states (rather than the victims) that actually have the right of access to the authorities and not beneficiaries .Thus, at the first step, we should see whether the Court has jurisdiction over the crime committed by the government and whether people can file an action independently in the International Criminal Court or not? When people, rather than governments, are beneficiaries in some international crimes, why only the government and not the people is the plaintiff? And what is the right of the victim in such category of crimes? Accordingly, the current research seeks to examine these rights and restrictions, and relevant limitations.

The right to self-representation before International Criminal Tribunals, while not absolute, should only be denied in limited circumstances

Northern Ireland Legal Quarterly ◽

10.53386/nilq.v62i3.418 ◽

2020 ◽

Vol 62 (3) ◽

pp. 235-247

Author(s):

Paul Bassett

Keyword(s):

International Criminal ◽

Fair Trial ◽

Criminal Court ◽

International Criminal Tribunals ◽

One of the most controversial aspects of the International Criminal Tribunals (ICTs) and the International Criminal Court (ICC) concerns the right to self-representation. Many defendants have sought to use the trial as a stage on which to challenge the legitimacy of the court and to play to the crowd in their own home states. As a result, the various ICTs have sought to place limitations on the accused’s right to selfrepresentation. The recent amendment to the Statute of the Supreme Iraqi Criminal Tribunal (SICT) is an example of this. This evolution raises questions concerning the effect such limitations may have on the overall fair trial rights of the accused. This article argues that there is a need to establish a guaranteed right of self-representation, provided the accused adheres to an objective set of conditions placed on the right. Such conditions should be confined to those strictly necessary to ensure the integrity of the court. Such a move would allow the court to gain some much needed legitimacy while at the same time deny defendants the ability to turn the court into a political stage.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

The International Rule of Law ◽

10.1093/oso/9780198843603.003.0020 ◽

2019 ◽

pp. 311-334

Author(s):

Tiyanjana Maluwa

Keyword(s):

International Law ◽

Security Council ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

International Criminal Law ◽

The Right ◽

First Time ◽

Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

Good intentions and bad consequences: The general assistance mandate of the Trust Fund for Victims of the ICC

Leiden Journal of International Law ◽

10.1017/s0922156520000527 ◽

2020 ◽

pp. 1-20

Author(s):

Regina E. Rauxloh

Keyword(s):

International Criminal ◽

Negative Impact ◽

National Court ◽

Criminal Court ◽

Humanitarian Assistance ◽

Presumption Of Innocence ◽

Trust Fund ◽

General Assistance ◽

Court Proceedings

Abstract Recognizing the needs of victims in international criminal justice, the International Criminal Court (ICC or the Court) has introduced an innovative reparation scheme including the establishment of the Trust Fund for Victims. Besides the Fund’s role to implement reparation orders, a second mandate has been developed to provide immediate help to victims independent from a criminal conviction: the general assistance mandate. Surprisingly, this mandate has to date attracted little attention from scholars and remains vastly under-researched. By exploring in detail the work of the general assistance mandate, this article exposes its structural weaknesses as well as the negative impact it has on the procedures of the Court as a whole. It will demonstrate how the general assistance mandate weakens the legitimacy of the ICC as it undermines the presumption of innocence, risks compromising international and national Court proceedings, and masks the weaknesses of the Court. While there is no doubt that humanitarian assistance is urgently needed in situations that are investigated by the ICC, the mechanism chosen, namely the Trust Fund’s general assistance mandate is not an adequate solution. This article argues that general assistance has no place in an international criminal court and should, therefore, be completely separated from the ICC.

The Right to be Defended in Person or Through Legal Assistance and the International Criminal Court

Leiden Journal of International Law ◽

10.1017/s0922156500000558 ◽

2000 ◽

Vol 13 (4) ◽

pp. 949-984 ◽

Cited By ~ 1

Author(s):

Stuart Beresford ◽

Hafida Lahiouel

Keyword(s):

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

International Human Rights Law ◽

Legal Assistance ◽

Human Rights Law ◽

International Criminal Tribunals ◽

International Obligations ◽

While the Statute of the International Criminal Court guarantees to suspects and accused the right to be defended in person or through legal assistance, it contains little guidance as to the extent to which this most fundamental right will be provided. In order to ascertain how broadly it should be applied, the authors examine the application of the right by the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The authors note that the defence-orientated approach taken by the ad hoc Tribunals to the right to be defended in person or through legal assistance not only conforms with international obligations, but also in many respects goes beyond that required by international human rights law. It is, therefore, crucial that the ICC listens to the experience of the ad hoc Tribunals and adopts similar, if not identical, rules and regulations relating to the qualifications, conduct and assignment of counsel.

The Right to Access Legal Representation and Admissibility to the International Criminal Court: Walking The Tightrope Between Legitimacy and Effectiveness

Journal of Law and Jurisprudence ◽

10.14324/111.2052-1871.057 ◽

2013 ◽

Keyword(s):

International Criminal ◽

Criminal Court ◽

Legal Representation ◽

Ensuring the Defendant's Right to Defense in the Case Dealt with in Defendant's Absence as a Universal Standard of Justice

Lex Russica ◽

10.17803/1729-5920.2021.174.5.074-086 ◽

2021 ◽

pp. 74-86

Author(s):

A. Yu. Klyuchnikov

Keyword(s):

International Criminal ◽

Criminal Court ◽

Criminal Proceedings ◽

Routine Procedure ◽

International Jurisdiction ◽

Separate Form ◽

Judicial Proceedings ◽

The Right ◽

Universal Standard

When the case is brought before the international criminal court (a tribunal), a court of universal international jurisdiction, the defendant is granted the right to defense. One of its components includes safeguarding of the right to participate in the criminal proceedings initiated against him. In practice, it may be difficult to ensure this safeguard. Thus, even if the accused is properly informed of the case initiated against him, he may ignore the proceedings or refuse to participate in the trial. There may be difficulties in enforcing a restraining measure related to isolation from the society, including cases when the accused is located in a State different from the State of the forum. Even during the proceedings, the accused can be removed from the courtroom for the violation of order, contempt of the court or insulting a participant in the proceedings. Judicial proceedings in the absence of an accused person in international and national law are not treated separately as a special and separate form of proceedings, but rather as a routine procedure with a number of exceptions. The refusal to allocate as an independent proceeding the trial in the absence of the defendant is based on the narrowness of foundations for its use and practice that does not accept the absence of the defendant in criminal proceedings. In these cases, the problem of a fair trial arises in the absence of the person being prosecuted but with respect to his or her rights.

Article 124 of the Rome Statute of the International Criminal Court: ‘Transitional Provision’ or ‘The Right to (Convenient) Opt-out’

International Criminal Law Review ◽

10.1163/15718123-01505004 ◽

2015 ◽

Vol 15 (5) ◽

pp. 949-969 ◽

Cited By ~ 1

Author(s):

Vivek V. Nemane ◽

Indraneel D. Gunjal

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Opt Out ◽

Article 123 of the Rome Statute of the International Criminal Court provides for a Review Conference to consider any amendments to the statute. Amendments proposed and forwarded by the Assembly of State Parties (asp) were considered during the first Review Conference held at Kampala in 2010. Out of the three potential amendments to the Rome Statute, a proposal to delete Article 124 of the Statute failed. This article evaluates the consistency between contents and objectives of the Rome Statute with reference to a dichotomy which has been emerged after the first Review Conference due to the retention of Article 124. The article questions the basis of the retention of Article 124, and argues that the ‘opt-out provision’ enshrined in Article 124 should be deleted from the Rome Statute during the fourteenth session of the asp in 2015.