Examining the right of an accused to confront prosecution witnesses under international criminal law: comparative analysis
This article seeks an understanding of the development of and marriage between the right of an accused to confrontation (‘RtC’) and the obligation of ICTs to protect witnesses (the ‘OPW’) under international criminal law (‘ICL’). To achieve this purpose, the article probes a wide variety of legal ju...
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| Medienart: | Elektronisch Aufsatz |
| Sprache: | Englisch |
| Veröffentlicht: |
2016
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| In: |
African journal of law and criminology
Jahr: 2016, Band: 6, Heft: 1, Seiten: 97-119 |
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| Verfügbarkeit prüfen: | HBZ Gateway |
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| Zusammenfassung: | This article seeks an understanding of the development of and marriage between the right of an accused to confrontation (‘RtC’) and the obligation of ICTs to protect witnesses (the ‘OPW’) under international criminal law (‘ICL’). To achieve this purpose, the article probes a wide variety of legal jurisprudence, drawing clues from the applicable legal standards of the ICC, being the intended permanent court. As such, the study X-rays the statutes and Rules of Procedure and Evidence of the ICC and other ICTs, such as those of the ICTY, ICTR and SCSL, as well as their application by the appropriate court vis a vis striking a balance between the RtC and the OPW. On a related note, the article furthers inquiry, in this regard, into the provisions of International Human Rights Instruments, such as the European Convention on Human Rights, 1950 (‘ECHR’) and the International Covenant on Civil and Political Rights, 1966 (‘ICCPR’), and how the provisions have been applied before the European Court on Human Rights (‘ECrHR’) and United Nations Human Rights Committee (‘UNHRC’) respectively. This article argues that ICTs, being institutions established and nurtured by, and saddled with the responsibility of fostering, the rule of law, are bound to uphold such IHRS to the letter and draw necessary inspiration from the ECrHR jurisprudence in this regard, without any undue resilience on the ‘exceptional circumstances’ claims of ICTs’ trials. On the whole, this article gravitates towards the ideal that the RtC is fundamental to every criminal trial. The right, having been described as ‘minimum guarantee’ cannot suffer any further dilution. Any attempt to undermine this minimum legal standard, irrespective of whether the OPW is in context, will characterize such trial as ‘unfair’. The article recommends that in striking any balance between these conflicting interests, ICTs must constantly bear in mind its primary essence of existence and prioritize the rights of an accused over those of prosecution witnesses, because, aside the fact that in the eyes of the law the RtC is uncompromisable, the preference at law leans more on ‘the innocence of the guilty’ rather than ‘the guilt of the innocent’. |
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| ISSN: | 2045-8525 |
