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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


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 6: Parameters of Procedure


Having developed an assumption of fairness, the thesis will now explain—from a socio-legal perspective—that there is a nexus between the level of fairness and the legitimacy of the ICC and its court procedure.1282 The author agrees to the fact that the nature between comparative law and sociology is a topic that would not be on the agenda on a day-to-day legal comparison1283 but ‘this does not mean that [such a] communication or comparison is impossible.’1284 As Chapter 1 has alleged, the thesis is looking for a fresh and coherent approach that first, contributes to the question of fairness in international criminal proceedings and second, explains why the level of fairness should be raised at the ICC. The references made to common and civil law traditions at the end of Chapter 5 were not meant to differentiate the two traditions from one another. Rather, the explanations tried to locate flaws in the ICC’s procedure and the thesis now has to explain why such flaws may be detrimental for the ICC. The idea is to overcome diversities and to create an ideal that strengthens the ICC’s role in the world of international criminal justice.1285

Professor Luhmann has examined procedure as a social institution and provided answers as to how procedure itself can be a legitimizing mechanism. To this end, he mentions two important parameters that are crucial to establish legitimacy through the procedures of the Court. On the one hand, there is an internal variable of...

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