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Project

(How) Can International Criminal Law Safeguard Fundamental Human Rights? The Denial of the Rights to Fair Proceeding as International Crimes

Dystopian forms of justice are not a fantasy. States and non-state armed groups frequently employ unfair trials as a ‘weapon’ of war. In wartime, individuals charged for having committed a crime are therefore deprived of fundamental judicial guarantees or denied a trial altogether. Such infringements often culminate in indefinite detention and executions. For example, eastern Ukraine and Crimea have recorded serious violations of the right to a fair trial in criminal proceedings related to the ongoing armed conflict. Moreover, several non-state armed groups are infamously known for violating the most basic guarantees of a fair trial.

International criminal law considers depriving persons taking no active part in the hostilities of their judicial guarantees as a war crime, although with some differences between international and non-international armed conflicts. It can therefore hold individuals accountable for serious denials of a fair trial, providing an important instrument for the safeguarding of the right to a fair trial during armed conflicts. 

Notwithstanding this, the international crimes related to the denial of a fair trial have been largely ignored in practice: they have rarely been charged and the case law is sporadic and either inconsistent or vague. In line with the limited attention gained in court, scholars have been reluctant to address the denial of a fair trial as a war crime. As a consequence, these crimes still present interpretive issues that make their application arduous. The understanding of their underlying rules is limited, and these crimes confront challenges that have been disregarded. For instance, the interpretation of the material elements of the war crimes of denying judicial guarantees is controversial—it is unclear when a trial can be considered unfair for the purposes of substantive international criminal law. The uncertainty increases in non-international armed conflicts, as it is legitimate to wonder whether non-state armed groups should comply with the same standards of fairness imposed on states. 

The lack of a coherent and systematic legal framework to appropriately safeguard the right to a fair trial in situations of blatant violations during wartime is evident. This not only hinders the chances of effectively prosecuting the crimes, but also undermines legal certainty. In light of the alarming frequency in which dystopian forms of justice are employed in wartime, and the attention the offences are starting to receive at the International Criminal Court—most notably, with the Al Hassan case—an accurate and comprehensive investigation into the war crimes related to the denial of a fair trial is imperative and urgent.

The main objective of this research is to solve the interpretative and application difficulties posed by the war crimes related to the denial of a fair trial by building a coherent and systematic legal framework. It also aims to clarify the potential, advantages and limits of international criminal justice concerning the protection of the right to a fair trial, thereby shedding light on an instrument so far ignored. This thesis, therefore, identifies ways to protect the right to a fair trial during armed conflicts while avoiding the ‘overuse’ of the criminal tool to criminalise situations that should not amount to an international crime.

To identify the challenges posed in practice by the crimes and ‘deconstruct’ them, this research employed an empirical method based on semi-structured interviews with practitioners who had experience in interpreting and applying the war crimes of denying judicial guarantees. The doctrinal research then ‘builds upon’ these premises and ‘reconstructs’ the interpretation of the offences to address issues that emerged during the empirical research.

This research fills a critical gap on the unexplored topic of war crimes related to the denial of a fair trial and the role of international criminal justice in safeguarding the right to a fair trial in wartime. It also aims to encourage a thoughtful prosecution of the crimes and guide their future interpretation and application before national and international jurisdictions. Finally, the research has the broader ambition of contributing to the ‘rethinking’ of war crimes in light of contemporary non-international armed conflicts’ new challenges.

Date:15 Sep 2018 →  9 Feb 2024
Keywords:International criminal law, International humanitarian law, International human rights law, International crimes, International criminal tribunals, International Criminal Court, Denial of fair trial, Denial of fair proceedings, Arbitrary detention, War crimes, Al Hassan, Right to a fair trial
Disciplines:Law
Project type:PhD project