Melbourne Law School - Theses

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Start date: 2010 × End date: 2022 × Type: PhD thesis × Subject: international criminal law × Author: Rigney, Sophie ×

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    Fairness, the rights of the accused, and procedure in international criminal trials
    Rigney, Sophie ( 2015)
    This thesis examines the relationships between fairness, the rights of the accused, and procedure in contemporary international criminal trials. I argue that while fairness and rights are closely related in principle, by examining procedural decision-making in contemporary international criminal trials and the implications of these decisions, we observe a distancing between fairness and rights. This thesis ultimately calls for a renewed close association between fairness and the rights of the accused, particularly when making determinations on matters of procedure in international criminal trials. This thesis asks, ‘how are fairness and the rights of the accused connected in procedural decision-making in contemporary international criminal trials?’ I argue that fairness, rights, and procedure are three separate but interconnected aspects of international criminal trials. I explore these relationships through two case studies: the rules and practices of disclosure, and determinations on the use of adjudicated facts. I particularly examine practice at the ICC and the ICTY, and this thesis examines contemporary trials, as the cases analysed were in trial between the years 2008–14. This thesis engages with ongoing debates in the existing scholarship, particularly to address questions of the political and ideological underpinnings of international criminal law and procedure, and the flaws, limits, and potential of this legal system. I undertake a factual and normative analysis of fairness, rights, and procedure in international criminal trials. I examine how fairness and rights are located in this system of law; what fairness and rights are considered capable of achieving; and how fairness and rights connect the individual accused to the legal system. I also use the primary texts of the ICTY and ICC (the statutes, Rules of Procedure and Evidence, and Regulations), as well as selected procedural motions and decisions at both trial and appellate level in contemporary international criminal trials, held at the ICTY and ICC. I examine this law and related motions and decisions, to understand how fairness and rights are addressed in the international criminal procedural framework. I analyse both the relevant Chamber’s approach, and the effect of the decisions. In doing so, I have asked: ‘how has the Chamber addressed fairness concerns?’; ‘how has the Chamber accounted for the rights of the accused?’; and ‘what have been the implications of this decision for the rights of the accused?’ These documents permit an analysis of what procedural questions have arisen, and how they have been resolved, in relation to both fairness and rights. This ultimately facilitates an analysis of how fairness, rights, and procedure interact. This thesis ultimately calls for a renewed close alignment between fairness and rights in procedural decision-making in international criminal trials. I offer normative arguments for why fairness and rights should be closely linked, and reflections on the implications of this thesis for the future of international criminal trials.