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Fairness and Rights in International Criminal Procedure

Sophie Rigney

ISBN13: 9781474466301

Published: June 2022

Publisher: Edinburgh University Press

Country of Publication: Scotland

Format: Hardback

Price: £85.00

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Paperback edition , ISBN13 9781474466318

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9781474466332

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Calls for the realignment of fairness and the rights of the accused in procedural decision-making in international criminal trials

Examines what the jurisprudence and academic literature mean for legal procedure in practice
Weaves insights from original interviews with international criminal judges and lawyers into the analysis
Analyses primary texts from the ICTY and the ICC, including the statutes, Rules of Procedure and Evidence and Regulations
Includes case studies on disclosure, the use of adjudicated facts and the protection of witnesses – issues that are integral to the operation of rights in international criminal trials

Controversial cases such as the Karadžić trial and the Bemba acquittal have highlighted the importance of fairness in international criminal trials. Through an in-depth critical analysis of procedural decisions at the ICTY and ICC between 2008 and 2018, Sophie Rigney shows that there is a clear separation between fairness and rights in practice.

Subjects:: International Criminal Law

Contents:: Introduction: Why Fairness and Rights Matter, and What This Book Sets Out to Do; Placement of This Work in the Existing Literature; Scope and Boundaries of This Book; Structure of This Book; 1. The Particular Place of International Criminal Trials: Aims and Procedure; The Aims of International Criminal Law: Variety, Divergence and Promises Unfulfilled; The Aims of the Legal System; The Aims of the Institutions; The Aims of the Trial Process; i. Ending Impunity; ii. Meaningful Voice for Victims; iii. Truth: Legal or Historical?; A Forensic Determination of an Individual’s Guilt or Innocence: Calling for a Recalibration of the Aims of International Criminal Trials; 2. The Centrality of Rights and Fairness in International Criminal Trials; Rights in International Criminal Trials; Equality of Arms; ‘Rights’ or Interests of Others; Why Rights?; Rights and Truth; Fairness in International Criminal Trials: Centrality Accepted; Why the Centrality of Fairness is Important (Or, What Does Fairness Do?); i. Fairness as a Key Interpretive Tool of Trial Chambers; ii. Fairness as an Epistemic Enabler; iii. Fairness as a Legitimating Force; iv. Fairness as a Tool to Assist the Trial, Institution and Legal System to Meet Their Aims; 3. The incoherence of fairness in international criminal trials; What Principles Are Required to Ensure Fairness?; To whom is Fairness Owed? The Ascendancy of the ‘Shared Process-Centred Approach’; i. Rights-Centred Approach; ii. Shared Process-Centred Approach; iii. The Ascendancy of the ‘Shared Process-Centred Approach’; What Legal Protections Are Required to Ensure Fairness? Translating Fairness to a Sui Generis System; What is the Outcome of Fairness’s Incoherence?; Fairness and Rights: Central and Related, but also Separable and Separated; 4. Fairness, the Rights of the Accused and Disclosure; The Relationship between Disclosure and Fairness; The Relationship between Disclosure and The Rights of the Accused; i. The Right to Know the Case; ii. The Right to Time and Facilities to Prepare a Defence; iii. The Principle of Equality of Arms; Three Ways in Which Disclosure, Rights and Fairness are Separated in International Criminal Trials; i. Issue One: The Electronic Nature of Disclosure; ii. Issue Two: Large Volumes of Material Provided Late; iii. Fairness, Rights and Prejudice in Decision-Making; iv. The Effect of Cumulative Violations; Issue Three: Non-Disclosure at the ICC: The Role of Victims and the Use of Confidentiality Agreements by Prosecutors; i. Potential Non-Disclosure by Victims; ii. Non-Disclosure of Exculpatory Material Held by the Prosecutor; The Fractured Relationship between Disclosure, Rights and Fairness; 5. Fairness, The Rights of the accused and Use of Adjudicated Facts; Adjudicated Facts in Context: Greater Use of Written Evidence; Fairness And the Use of Written Evidence and Adjudicated Facts; The Relationship between the Use of Adjudicated Facts and the Rights of the Accused; i. The Right to Examine Witnesses; ii. The Right to Time and Facilities to Prepare a Defence; iii. The Principle of Equality of Arms; Four Issues Related to The Use of Adjudicated Facts; i. Issue One: The Use of Fairness and Rights to Extend the Application of Adjudicated Facts; ii. Issue Two: Time and Facilities to Prepare a Defence, and the Shifting of the Evidential Burden; iii. Issue Three: Judicial Reformulation of Adjudicated Facts; iv. Issue Four: Fairness and Rights in Late and Inconsistent Decisions; Fairness and Rights Disconnected in Adjudicated Facts Decisions; 6. Fairness, the Rights of the Accused and the Protection of Witnesses; The Need for Protection; Protective Measures; The Relationship Between Witness Protection and the Rights of the Accused; Fairness, Rights and Protection of Witnesses; Delayed disclosure and Redactions; i. Delayed Disclosure at the ICTY: The Timing of the Disclosure; ii. Delayed Disclosure at the ICC: Categories of Protected Persons; Written Evidence in Place of Oral Testimony; Conclusions; Conclusions: Closing the space between Fairness and Rights, and Reimaging the Future of International Criminal Law; Themes and Findings of this Book – The Space between the Photocopier and the Acquittal; Looking to the Future; Reimagination?; Bibliography; Books; Articles and Chapters in Edited Volumes; Theses; Treaties; United Nations Security Council Resolutions; Instruments; Judgments; Procedural Decisions and Orders; i. International Criminal Tribunal for the Former Yugoslavia; ii. International Criminal Court; iii. International Criminal Tribunal for Rwanda; Motions; i. International Criminal Tribunal for the Former Yugoslavia; ii. International Criminal Court; Transcripts; Reports, Comments and Letters; Internet Sources; Interviews