Journal Article

Reflections on Fairness in International Criminal Justice

Mirjan Damaška

in Journal of International Criminal Justice

Volume 10, issue 3, pages 611-620
Published in print July 2012 | ISSN: 1478-1387
Published online June 2012 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mqs037
Reflections on Fairness in International Criminal Justice

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While international criminal procedure should be governed by standards of fairness, this does not necessarily imply that fairness demands are to be identical to the ones applicable in domestic proceedings. The context within which international criminal courts and tribunals operate should be taken into account. Whereas domestic criminal courts are usually backed by coercive powers of the state and display comparatively weak libido puniendi, international tribunals, conversely, lack a similar institutional framework but are guided by strong punitive impulses, contingent upon the seriousness of international crimes and international tribunals’ function as ‘moral teachers’. Against the backdrop of these differences, it is inevitable ‘procedural fairness’ is to be contextually assessed. The need for speedy trials and the ‘exclusionary rule’, for example, must be weighed against the complexity of cases and the difficulties of obtaining evidence, while the right of the accused to defend himself must be balanced against the consideration that the accused should not use the trial process for propagandistic purposes. At the same time, the author argues, fairness in international criminal proceedings might also require that states, whose nationals are on trial, are allowed to intervene as amicus curiae, as the outcome of the trial might profoundly affect a national sense of guilt.

Journal Article.  4474 words. 

Subjects: Criminal Law ; International Law

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