Special Rules for Special Courts? - The United Nations International Criminal Courts from a Human Rights Perspective

Abstract: The International Criminal Tribunals for the Former Yugoslavia and for Rwanda symbolise the commitment of the international community to put an end to impunity and to reintroduce justice and due process where it has long been denied. With the addition of the Special Court for Sierra Leone and the International Criminal Court international criminal justice has developed into a permanent feature of international law. Common to all international criminal courts is a commitment to the highest human rights standards and to the rule of law and due process. This paper explores international criminal procedure from a human rights perspective. It focuses on the specific guarantees that form the basis of the right to a fair trial in international human rights law and compares the protection offered to accused persons under the two systems of law. A number of areas are identified where the international courts fall short of providing full protection for the rights of the accused. In spite of clear human rights provisions to the contrary it is the general rule to keep the accused in detention throughout the proceedings even though international trials are often very lengthy. Ultimately, the time the accused spends in detention is so long it might amount to a violation of the right to be presumed innocent. A closer look at the Special Court for Sierra Leone further reveals several areas where the conduct of chambers and prosecution unnecessarily slowed down the proceedings, potentially impinging on the right of the accused to be tried within reasonable time. The impartiality of judges is also investigated, as is their relationship with and independence from other international actors such as the UN and individual states. A pattern emerges where the ambition to save funds and to achieve results in the form of convictions has taken a toll on efficiency. Last minute efforts to preserve the interests of the accused lead to longer trials and ends up increasing costs. Ultimately the credibility of the entire process is at risk.