Rights in Reverse: A Critical Analysis of Fair Trial Rights under International Criminal Law

Authored by: Yvonne McDermott

The Ashgate Research Companion to International Criminal Law

Print publication date:  May  2013
Online publication date:  March  2016

Print ISBN: 9781409419181
eBook ISBN: 9781315613062
Adobe ISBN: 9781317043157


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This chapter examines two key issues which have arisen as regards the international criminal tribunals’ interpretation of the right to a fair trial, namely the parties to whom rights at trial attach, and the right to trial without undue delay. The chapter argues that the tribunals’ extension of fair trial rights to other actors at trial, but particularly the prosecutor, is unnecessary and unhelpful. It also reveals that the defendant’s right to a speedy trial has been used as a bar to the exercise of other rights in some circumstances, whilst in other situations a breach of the right to trial without undue delay has proven almost impossible to assert. These issues ought not to be viewed in a vacuum, but rather as symptomatic of a wider deficiency in international criminal law. They illustrate the piecemeal fashion in which questions on the fundaments of fairness in international criminal law have been answered, the lack of an overarching theory guiding the procedural fairness of trials, and international criminal law’s resultant failure to serve a standard-setting function for the fairness of trials. 2 1

The author would like to thank Patricia Sellers, Ian Scobbie, William A. Schabas, Joe Powderly, Niamh Hayes and participants at the Irish Centre for Human Rights annual doctoral seminar 2011 for their valuable comments on an earlier draft.


The potential of international criminal procedure to set the highest standards for the fairness of trials, and its failure to do so, is addressed in part by the present author in ‘Double Speak and Double Standards: Does the Jurisprudence on Retrial following Acquittal under International Criminal Law Spell the End of the Double Jeopardy Rule?’ in D Keane and Y McDermott (eds) The Challenge of Human Rights: Past, Present and Future (Edward Elgar, Cheltenham 2012) 176. For an interesting analysis of international criminal procedure’s potential in advancing the rule of law in post-conflict societies, see J-D Ohlin, ‘A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law’ (2009) 14 UCLA J Int’l L & Foreign Affairs 77, 103.

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