Balancing Prejudice Fair Trial Rights and International Procedural Decisions Relating to Evidence

This chapter analyses whether it can be assessed if undue prejudice will be suffered, or has been suffered, when it concerns procedural matters before the International Criminal Court (ICC) relating to evidence. It discusses whether prejudice can only be suffered by the accused, or also by others, namely the Prosecutor or through their legal representatives victims. The notion of prejudice is mentioned in various provisions of the Rome Statute and the Rules of Procedure and Evidence. The concept of prejudice has been referred to in many ICC decisions, including explanations of what must be understood as undue prejudice, or what remedies may be taken to prevent an act from becoming unduly prejudicial. In assessing whether any such ‘undue prejudice’ would occur in a particular circumstance, one must differentiate between prejudice and mere inconvenience. Lawful actions can cause the same form and level of inconvenience to the defence as would be the case with actions that may be found to be unduly prejudicial.