Dialectical tensions in the jurisprudence of the International Criminal Court : fair process, the demands for justice and the expectations of the international community

Van der Burg, Anthea (2020-03)

Thesis (LLD)--Stellenbosch University, 2020.


ENGLISH ABSTRACT: The fundamental question, which the notion of fair trial rights imposes is to what extent can a trial be fair to those accused of the most heinous crimes affecting the whole of humanity? In attempting to find an answer, this dissertation explores the general human rights instruments, the Rome Statute and the selected case law at the ICC; including six judgments Lubanga, Katanga, Bemba, Gbagbo, Ble Goude and Ntaganda. The dissertation therefore sought, on the one hand, to assess the extent to which fair trial principles have been applied in case law and secondly, to assess in light of the growing jurisprudence of the ICC, to what extent one can say that fair trial rights are protected at the ICC, given the competing demands of the international community, the victims of the most serious crimes under international law, and the accused. The dissertation is testing a proposition: The International Criminal Court, as a criminal court, should have the realistic but defensible focus of ending impunity via an accused-centred procedural regime that also, but not primarily, gives content and effect to the other competing interests of victim’s rights and the demands of the international community. The dialectical tensions between the rights of the accused, the participation of victims and the interests of the international community are explored through the case law analysis. The Rome Statute as the founding instrument of the ICC projects the ICC (wrongly) as primarily a human rights court with a broad mandate to end impunity and enhance world peace. In reality, the ICC is, of course, a criminal court with one paramount task: to determine, via fair criminal trials, whether accused persons are guilty of crimes within the jurisdiction of the ICC. It is argued that more emphasis or at least a balanced approach should be applied between the interests of victims and those of the accused. In many instances (as illustrated in this dissertation) the court has unfortunately not succeeded in protecting the fair trial rights of the accused nor ensured that there is equality of arms within trial proceedings.


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