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A Fair Trial at the International Criminal Court? Human Rights Standards and Legitimacy

Procedural Fairness in the Context of Disclosure of Evidence and the Right to Have Witnesses Examined

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Elmar Widder

This book approaches the question of whether or not the court procedure at the International Criminal Court (ICC) can be regarded as fair from two angles: First, does the ICC provide a fair trial according to the accepted standards of international human rights law? Secondly, is it substantively fair so as to establish the legitimacy of the court on a sound footing? Practitioners and academics are increasingly conscious of the need for an approach to evidence which spans civil law and common law traditions, national and international law. This is what this monograph does, in meticulous detail, for the law of confrontation and disclosure.

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Chapter 5: The International Criminal Court

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Having scrutinized from a human rights perspective the two main component sections of the fair trial, i.e. the disclosure of evidence and the right to have witnesses examined, Chapter 5 will now compare these results against the procedural framework of the ICC. The outcome will provide answers as to the first part of the hypothesis, namely whether or not the Rome Statue and its Rules of Procedure and Evidence comply with empirical human rights law. Furthermore, Chapter 5 will revisit one of the important questions raised in Chapter 4, that is, whether Articles 54 (1) (a) and 67 (2) of the Rome Statute and the Prosecutor’s obligation not only to actively search for incriminating but also exonerating evidence resolved the friction of how the defence gathers its exculpatory material. The strife about the disclosure of evidence raised serious concerns as to whether a fair trial was guaranteed in the ICC’s first case of Lubanga and until today, it is not a hundred percent clear regarding what has to be disclosed to the Pre-Trial Chambers before the confirmation of charges hearing takes place. In the case of Lubanga, for example, Trial Chamber I considered the approach of the prosecution with regards to the disclosure of evidence as a ‘wholesale and serious abuse,’1006 and in the case of Katanga and Ngudjolo, Single Judge Steiner described the prosecution’s methods as ‘reckless investigative techniques.’1007

For the sake of coherence with previous chapters, the second part of this chapter will...

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