The War Crimes of Denying Judicial Guarantees and the Uncertainties Surrounding their Material Elements

In July 2020, the International Criminal Court (ICC) has opened the trial in the Al Hassan case. For the first time in the history of international criminal justice, a defendant is being tried with the charge of war crime of denying a fair trial in the context of a non-international armed conflict. The war crime of denying a fair trial prohibits states and non-state armed groups to deprive prisoners of war and civilians of certain minimum judicial guarantees, both in international and non-international armed conflicts. The offence is, however, regulated by a ‘tangle’ of ambiguous provisions. These provisions present interpretative and practical issues which have not received sufficient consideration so far. Most notably, the actus reus of the crime raises a range of interpretative doubts and is of cumbersome application. The objective of the article is to identify the issues posed by the actus reus of the war crime of denying a fair trial to warn against the pitfalls the interpretation of the offence hides and trigger the debate on the problems it raises.

Jaar van publicatie:2021

Toegankelijkheid:Open