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

Lex Russica ◽  
2021 ◽  
pp. 74-86
Author(s):  
A. Yu. Klyuchnikov
Keyword(s):  
International Criminal Court ◽  
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.

Pre-Conviction Detention before the International Criminal Court: Compliance or Fragmentation?

2010 ◽  
Vol 9 (2) ◽  
pp. 295-311 ◽  
Author(s):  
Sergey Golubok
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Criminal Proceedings ◽  
Human Right ◽  
Personal Liberty ◽  
International Criminal Tribunals ◽  
The Right

AbstractThis article analyses nascent case law of the International Criminal Court on provisional detention at the investigation stage and in the course of trial (together referred to as “pre-conviction detention”) vis-à-vis the standards developed in the jurisprudence of the European Court of Human Rights, being a reflection of “internationally recognized human rights” to which the ICC, according to its Statute, must adhere. At least several instances of presumed inconsistencies are detected. It is argued that international criminal tribunals should above all comply with standards set by international human rights law for domestic criminal proceedings, in particular when the most fundamental and basic human right ‐ the right to personal liberty ‐ is affected. Failure to comply entails a serious risk of hazardous fragmentation.

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.

The Activity of Lawyers in the International Criminal Court: Theoretical and Practical Aspects

2021 ◽  
Vol 8 (3) ◽  
pp. 67-72
Author(s):  
Daria A. Sedova
Keyword(s):  
World War Ii ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
World Order ◽  
Criminal Court ◽  
Criminal Proceedings ◽  
Or Groups ◽  
The Status ◽  
Entire History

In the entire history of mankind, a large number of acts of violence and aggression have been committed. Over the past 50 years alone, there have been more than 400 interstate and intrastate conflicts that have claimed the lives of millions of people. Increasingly, there has been an urgent need to protect the violated rights of individuals. The idea of creating a single international body for the protection of human rights has been discussed more than once. For the first time, the idea of creating an international judicial body was expressed in 1948 by the UN General Assembly after the Nuremberg and Tokyo trials at the end of World War II, which issue has been discussed at the United Nations ever since. However, efforts to create such a mechanism have not been successful, despite the need for a permanent criminal court to prosecute and punish those who commit the most serious crimes. In 1998, this idea was realized. The International Criminal Court (ICC) has sought ways to establish a world order with a fair resolution of conflicts. It has long been recognized, the verdict of the Nuremberg Tribunal noted, that international law imposes duties and obligations on specific individuals as well as on the state. [] Crimes against international law are committed by people, not by abstract categories, and only by punishing individuals who commit such crimes can the provisions of international law be respected. To date, the ICC is successfully coping with the task of punishing those persons or groups of persons who have committed the international crimes listed in the Rome Statute. It would seem that the balance between good and evil has been found. The crime has been committed and the criminal punished. But it is important to note that the procedural issues have not been resolved as well as that of punishing criminals. An urgent matter today is the status of defenders of the accused in international criminal proceedings. This question requires not only a doctrinal, but also a practical understanding.

scholarly journals Victim’s Right of Access to International Criminal Courts

2016 ◽  
Vol 10 (1) ◽  
pp. 279
Author(s):  
Fazlollah Foroughi ◽  
Zahra Dastan
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
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.

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

2020 ◽  
Vol 62 (3) ◽  
pp. 235-247
Author(s):  
Paul Bassett
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
The Right

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?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
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.

Systematic and Casuistic Approaches to the Role of Victims in Criminal Proceedings Before the International Criminal Court

2009 ◽  
Vol 12 (4) ◽  
pp. 513-528
Author(s):  
Hééctor Oláásolo
Keyword(s):  
Present Article ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Criminal Proceedings ◽  
Specific Manner ◽  
Critical Issues

The scope of victims' participation at the investigation stage of a situation and throughout case-related proceedings is today one of the critical issues before the ICC. The key provision on this matter is Article 68(3) of the Rome Statute. This provision entrusts the ICC Chambers with the discretion to determine (i) when victims can participate in ICC proceedings and (ii) the specific manner in which such participation can take place. The present article, which is written against the backdrop of the first Review Conference scheduled for next year pursuant to Article 121(1) of the Rome Statute, focuses on the systematic and casuistic approaches adopted so far by different ICC chambers in shaping, pursuant to Article 68(3) of the Statute, the role of victims at the investigation stage of a situation and in case-related proceedings.

Expediting the ICC Criminal Process: Striking the Right Balance between the ICC and States Parties

2018 ◽  
Vol 18 (3) ◽  
pp. 383-425
Author(s):  
Hirad Abtahi ◽  
Shehzad Charania
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
Common Goal ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
State Involvement ◽  
Rules Of Procedure ◽  
The Right

When establishing the ICC, the sole permanent international criminal court, States ensured that they would play a legislative role larger and more direct than the ad hoc and hybrid courts and tribunals. States Parties have, however, acknowledged that, given the time they spend interpreting and applying the ICC legal framework, the judges are uniquely placed to identify and propose measures designed to expedite the criminal process. Accordingly, the ICC has followed a dual track. First, it has pursued an amendment track, which requires States Parties’ direct approval of ICC proposed amendments to the Rules of Procedure and Evidence. Second, it has implemented practices changes that do not require State involvement. This interactive process between the Court and States Parties reflects their common goal to expedite the criminal proceedings. The future of this process will rely on striking the right equilibrium between the respective roles of States Parties and the Court.

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

2000 ◽  
Vol 13 (4) ◽  
pp. 949-984 ◽  
Author(s):  
Stuart Beresford ◽  
Hafida Lahiouel
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Legal Assistance ◽  
Human Rights Law ◽  
International Criminal Tribunals ◽  
International Obligations ◽  
The Right

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.

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