Can international criminal courts provide defendants with fair trials? The question can be approached in at least two ways. First, are the substantive rights accorded to the accused by the tribunals' statutes, rules of procedure and evidence, and case law adequate? Second, regardless of the sufficiency of the paper rights accorded the accused in the tribunals' statutes, do these international courts have the independence and coercive powers necessary to ensure fair trials? For example, can these courts make certain that the accused is able to obtain the evidence and witnesses necessary for a serious defense? Or do the courts' judges have the independence necessary to withstand political pressure from the states on which they depend? In other words, despite the good intentions of the architects of these statutes, and the rights they formalistically contain, might these courts still lack certain essential capacities that criminal courts require in order to fulfill their functions? It is on this second, crucial, but often overlooked, aspect of the fair trial problem that this article focuses. A review of tribunal case law and past practice indicates that international criminal tribunals, as presently constituted, are limited in their ability to provide defendants with fair trials, even if the statutory rights accorded the accused and the positive pronouncements made by these courts are to be consonant with fair trial standards, because the courts lack the prerequisite power, or its functional equivalent, to make those substantive rights real. In short, the disjunction between authority and control, common to international institutions, is too great to allow for consistently fair criminal adjudication. Whether the structural limitations on the tribunals are fatal, or whether their detrimental effects can be abated, remains to be seen.
Jacob K. Cogan,
International Criminal Courts and Fair Trials: Difficulties and Prospects,
Yale J. Int'l L.
Available at: https://digitalcommons.law.yale.edu/yjil/vol27/iss1/5