Addressing violations of international criminal procedure

This chapter provides an overview of the law and practice of the ICTY, ICTR and ICC with respect to procedural violations, including how such international criminal tribunals have dealt with the unique severity of the crimes falling within their jurisdiction in this context.

The picture that emerges from such law and practice may be one of an array of responses that is available in respect of a wide range of violations. Nevertheless, the law and practice of the international criminal tribunals in this regard is still very much in development. For example, while such tribunals have referred to various rationales for responding to procedural violations, they have not yet properly identified (and expanded on) the primary rationale(s) for doing so, sometimes citing numerous rationales in the same breath, citing certain rationales but not others, or otherwise failing to explain the meaning of nebulous terms such as ‘fairness’ and ‘integrity’.

Nor is such law and practice clear on how to accommodate the public interest in the investigation and prosecution of very serious crime in responding to procedural violations. In particular, the international criminal tribunals’ law and practice is unclear on how such public interest relates to the (violated) rights of the suspect or accused. Since the seriousness of the crime(s) charged will inevitably enter the analysis in responding to procedural violations in international criminal proceedings, it is of paramount importance that international criminal tribunals come to terms with this issue.

In addition, therefore, this chapter addresses the question of how best to accommodate the various — seemingly competing — interests in international criminal proceedings when responding to procedural violations. It will be argued that, in accommodating the public interest in the investigation and prosecution of very serious crime and the rights of the suspect or accused, it is important not to divorce either from the context in which they are being exercised: (international ) criminal proceedings. By considering such interests in the context of broader objectives of (international) criminal justice, it becomes easier to reconcile seemingly competing interests and to distinguish illegitimate interests from legitimate ones.