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- Title
Denial of Fair Trial as an International Crime: Precedent for Pleading and Proving it under the Rome Statute.
- Authors
DePiazza, Jennifer
- Abstract
In the Mali Situation, the Office of the Prosecutor of the International Criminal Court (ICC OTP) is investigating, for the first time, allegations of denial of fair trial as an international crime. Denial of fair trial is also implicated in other situations under preliminary examination. Denial of fair trial manifests in two forms. First, it can result from a trial that did not afford the judicial guarantees required by applicable international law, and second, it can result from the absence of a trial. With a view to assisting the ICC OTP in the novel international criminal law exercise of examining such conduct, as well as laying a foundation for further academic discussion, this article canvases a handful of cases from the SecondWorldWar ç rare precedents in which prosecutors pleaded and proved denial of fair trial in its first form. It also examines the Duch case before the Extraordinary Chambers in the Courts of Cambodia, the first modern-day precedent of prosecuting authorities pleading and proving denial of fair trial in its second form. In so doing, the article provides insight on pleading denial of fair trial as a crime against humanity and as a war crime, as a systemic crime and as a crime against a small number of victims. It also provides insight on different approaches to evidence, with prosecutors sometimes relying upon evidence of the details of individual trial proceedings to prove denial of fair trial and other times relying upon evidence of the system as such being incapable of delivering fair trials. The article concludes with thoughts on what the ICC OTP might need to do differently than prosecutors in other jurisdictions in pleading and proving this crime under the Rome Statute.
- Subjects
INTERNATIONAL crimes; FAIR trial; PLEADING; STATUTES; JURISDICTION (Roman law)
- Publication
Journal of International Criminal Justice, 2017, Vol 15, Issue 2, p257
- ISSN
1478-1387
- Publication type
Article
- DOI
10.1093/jicj/mqx011