Internationalised criminal trial and access to justice

International Criminal Law Review

Volumn 2, Issue 3, 2002, Pages 237-259

  Findlay, Mark ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

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EID: 34248078350     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181202401057187     Document Type: Article

References (79)

1. See L. Sunga, The Emerging System of International Criminal Law: Developments in codification and implementation, 1997;
2. also, P. Reichel, Comparative Criminal Justice Systems: A topical approach, 1999.
3. For this see M. Findlay, Synthesis in Trial Procedures? The experience of the international criminal tribunals, 50/I International and Comparative Law Quarterly 2001, pp. 26-53.
4. For a discussion of this, see P. Arnell, The Proper Law of the Crime in International Law Revisited, 9/1 Nottingham Law Journal, 2000, pp. 39-52.
5. For an expansion of these themes, see M. Findlay, The Cost of Globalised Crime: New levels of control, International Journal of Comparative Criminology, 2002 (forthcoming).
6. Also, see A. Ashworth, Article 6 and the Fairness of Trials, Crim. L. R., 1999, pp. 261-272.
7. see J. Bell, "The French Pre-Trial System" in C. Walker & K. Starmer (eds.) Miscarriages of Justice: A review of justice in error, 1999, chap 17.
8. S. Freccero, 'An Introduction to the New Criminal Procedure', 21 American Journal of Criminal Law, 1994, pp. 345-383.
9. See, for instance, the High Court's comments in respect of indigenous land title, in Mabo v State of Queensland (1992) 66 ALJR 408.
10. Exemplified by the International Criminal Tribunal for the former Yugoslavia (in The Hague), and moves towards an international criminal court see, "A Permanent International Criminal Court" at www.undp.org/missions/netherlands/ICC.htm.
11. Also W. Schabas, An Introduction to the International Criminal Court, 2001.
12. See I. Dennis, Human Rights and Evidence in Adversarial Criminal Procedure: the advancement of international standards, in J. Nijboer & Reijntjes (eds.), Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence, 1997, pp. 523-532.
13. For a discussion of the domestic source of certain international criminal trials beyond the international tribunal structure see G. K. McDonald & O. Swaak Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law: the experience of international and national courts, 2000, and D. Woodhouse (ed.), The Pinochet Case: a legal and constitutional analysis, 2000.
14. Such as the need to try war criminals identified as a consequence of more regular global military interventions such as Bosnia and Serbia. See D. Cotić, A Critical Study of the International Tribunal for the former Yugoslavia, 5/2-3 Criminal Law Forum, 1994, pp. 223-236. Also note the recent US opposition to the establishment of an International Criminal Court is founded on the American view of an inextricable connection between any such court and the mandate and interests of the UN Security Council.
15. Driven as they are by the foreign policy concerns of the United States and Western Europe, even more than those of world agencies such as the United Nations. See R. Goldstone, Justice as a Tool for Peace-making: truth commissions and international criminal tribunals, 28/3 New York University Journal of International Law and Politics, 1996, pp. 485-503.
16. For a discussion of the place of civil and common law procedures within recent war crimes trials, see T. McCormack & J. Simpson, The Law of War Crimes: National and international approaches, 1997.
17. See M. Schaif, The Politics Behind the U. S. Opposition to the International Criminal Court, New England International and Comparative Law Annual, 1998. Also the resistance to this trend takes on an expedient and politicised format particularly after September 11.
18. See T. Meron, War Crimes Law Comes of Age, 1999.
19. See D. Schaffer, Address Before the Southern Californian Working Group on the International Criminal Court, http://www.pbs.org/wgbh/pages/frontline/ shows/karadzig/genocide/iccus.html 1998.
20. see also, G. Ulmen, Just Wars or Just Enemies, in 109 Telos, 1996, pp. 99-112.
21. See D. Robinson, Trials, Tribulations and Triumphs: Major developments in 1997 at the International Criminal Tribunal for the former Yugoslavia, XXXV Canadian Yearbook of International Criminal Law, 1997, pp. 179-213.
22. See V. Tochilovsky, Trial in International Criminal Jurisdictions: Battle or scrutiny, 6/1 European Journal of Crime, Criminal Law and Criminal Justice, 1998, pp. 55-59.
23. See, for instance. D. Nsereko, Rules of Procedure and Evidence of the International Tribunal for the former Yugoslavia, 5/2-3 Criminal Law Forum, 1994, pp. 507-555.
24. See M. Findlay, Fair Trial and the Rights Dimension of International Trial Procedure (unpublished paper).
25. One such is J. Hatchard, B. Huber & R. Vogler, Comparative Criminal Procedure, 1996.
26. See F. King & A. La Rosa, International Criminal Tribunal for the former Yugoslavia: current Survey - the jurisprudence of the Yugoslavia Tribunal: 1994-1996, 8/1 European Journal of International Law, 1997, pp. 123-179.
27. For a sophisticated examination of the relationship between these broad procedural styles, see K. Zweigert & H. Kötz, Introduction to Comparative Law, 1998.
28. For an analysis of the inextricable association between methods of legal regulation, and domestic and global political interests, see M. Findlay, The Globalisation of Crime, 1999, chap. 1.
29. For instance, it might be argued that the Yugoslav and Rwanda tribunals are more the creatures of American military justice models, than of common law or civil law courts - see J. Cockayne, Procedural and Processual Synthesis in International Tribunals (unpublished paper), 2001.
30. For a comprehensive analysis of the influence of rights paradigms over emerging international criminal procedure and its accommodations, see D. Amann, Harmonic Convergence? Constitutional criminal procedure in an international context, 75/3 Indiana Law Journal 2000, pp. 810-873.
31. H. Woolf, Access to Justice: the final report to the Lord Chancellor on the civil justice system in England and Wales, 1996.
32. M. Bohlander & M. Findlay, "The Use of Domestic Sources as a Basis for International Criminal Law Principles - An exchange of civilities in the search for a common denominator" (forthcoming).
33. V. Morris & M. Scharf, An Insiders Guide to the International Criminal Tribunal for the former Yugoslavia, 1995, pp. 222 and following.
34. See CPP Arts 60, 648.
35. Rome Statute of the International Criminal Court (ICC Stat.) Art. 21(2).
36. ICC Stat. Art. 21(1).
37. ICTY Stat. Art. 21(3).
38. See also the ICC Stat. Art. 67(1) (g).
39. ICTY Stat. Art. 21(3) (g).
40. The right to the unsworn "dock statement" has been removed (which is contrary to the proposed protection in the ICC - ICC Stat. Art. 67(1) (h)). Judges are also given some restricted opportunity to make adverse comment on an accused's refusal to answer questions in certain circumstances. See for instance, the Criminal Justice and Public Order Act 1994 ss. 34, 36, 37.
41. For a wider discussion of these issues see, Murray v DPP (1992) 97 Cr. App. Rep. 151;
42. R v Martinez-Tobon (1994) 2 All E. R. 90.
43. For a discussion of this in the context of Article 6 of the European Convention, see Saunders v UK (1977) 23 E. H. R. R. 313.
44. ICTY (RPE) Rule 90 (E) (as amended).
45. This is taken even further from the civil law tradition when the ICC statute protects against the imposition on the accused of "any reversal of the burden of proof, or any onus of rebuttal" - ICC Stat. Art. 67(1) (i).
46. See, for instance, the Magistrates Courts Act 1980, (Eng) s.101;
47. Misuse of Drugs Act 1971, (Eng) s.27(2);
48. Public Order Act 1986, (Eng) s.6(5).
49. ICTY Stat. Art. 12.
50. ICTY Stat. Art. 13.
51. For research examining whether the decisions of the International Court of Justice are influenced by the selection process used for that court, see F. Brown Weiss, "Judicial Independence and Impartiality", in L. Damrosch (ed.) The International Court of Justice at a Crossroads, 1987.
52. For instance, ICTY Stat. Art. 7. Another indicator of this is the limitation on the jurisdiction of these tribunals only over "natural persons".
53. See A. Norrie, Crime, History and Reason, 2001.
54. Such as is done in Article 6 of the European Convention, and ICC Stat. Art. 67.
55. See R. Cotterrell, The Sociology of Law, an introduction, 1992.
56. As discussed in A. Ashworth, Article 6 and the Fairness of Trials, Crim. L. R., 1999, pp. 261-272.
57. In England, for instance, see Criminal Justice (Mode of Trial) Bill 1999.
58. N. B. ICC Stat. Art. 64;
59. ICTY Stat. Art. 20 (for a discussion of in camera conditions see, Rules of Procedure and Evidence of the ICC, Rules 74, 87).
60. Also, see J. Cockayne, Procedural and Processual Synthesis in International Tribunals: Part III; Victims and witnesses, (unpublished paper), 2001.
61. See ICC Stat. Arts. 75 & 79 and the establishment of a trust fund for the benefit of victims.
62. ICTY Stat. Art. 22.
63. ICTY Stat. Art. 23.
64. ICTY Stat. Arts. 25 & 26.
65. For instance, in the ICC Stat. Arts 56-69.
66. ICC Stat. Art. 56(1) b).
67. ICTY (RPE) Rule 66 (A).
68. ICTY (RPE) Rule 66 (C).
69. ICTY (RPE) Rule 67 (A) (ii) indicates that the consequence of a failure to disclose limits the right of the accused to utilise the special defence insofar as he cannot call evidence in support beyond his personal testimony.
70. ICTY (RPE) Rule 67 (C).
71. ICTY (RPE) Rule 68.
72. ICTY (RPE) Rule 70 - Matters not Subject to Disclosure.
73. If such information is required for disclosure, the person providing confidential information cannot be compelled as a witness to answer questions which he declines on the basis of confidentiality - ICTY (RPE) Rule 70 (D).
74. ICTY (RPE) Rule 90 (E). Interestingly, this stands in opposition to rights charters such as the International Covenant on Civil and Political Rights.
75. See how this stands against the protections espoused in ICTY (RPE) Rule 95.
76. ICC Stat. Art. 14.
77. For a detailed exploration of this in the context of comparative trial research, see M. Findlay & R. Henham, "Methodology and the Comparative Contextual Analysis of Trial Process: A preliminary study" at , 2002.
78. See the case of Prosecutor v. Tadic (Case No. IT-94-1-AR72).
79. See B. Zupančić, Access to Courts as a Human Right According to the European Convention on Human Rights, 9/2 Nottingham Law Journal, 2000, pp. 1-16.