Balancing the Rights of the Accused and Victims Rights in International Law - Dissertation Example

?Research Proposal Topic: Command Responsibility: Balancing the Rights of the Accused and Victims’ Rights in International Law Introduction The rightto a fair trial is firmly entrenched in a majority of state laws and is thus encapsulated in international customary law under the doctrine of opinion juris.1 The right to a fair trial is codified by Article 14 of the UN’s International Covenant on Civil and Political Rights 1976 (ICCPR).2 The right to a fair trial includes the presumption of innocence, the right to be present at the trial, the right to heard by a fair and impartial tribunal of fact and the right to a trial “without undue delay”.3 Other rights include the right to sufficient facilities and time to prepare a defence as well as the right to be fully informed of the charges against him/her, to be represented by legal counsel and to examine witnesses.4 Vastly similar rights are contained in Article 67 of the Rome Statute of the International Criminal Court 1998 (ICC).5 The rights of the accused in terms of procedural fairness in international criminal proceedings go back to the formation of the International Military Tribunal which was established in Nuremberg following the Second World War. The logic behind the right to a fair trial was implicit in the creation of complicity under the doctrine of command responsibility. Justice Robert Jackson in his opening statement at the Nuremberg Trials essentially reasoned that the International Military Tribunal would confer upon the accused persons, the due process that they refused to confer upon their victims.6 The right to a fair trial is not absolute however, as there are circumstances where that right may be “derogated from in certain circumstances”.7 This paper focuses on the recent trends in international criminal law in which there is an initiative for balancing the rights of the accused against victims’ rights under the doctrine of command responsibility. In doing so, it appears that there may not be a right to a fair trial at all, as the rights of the victims to participate in these trials effectively deny the accused a trial without delay, erases the right to be presumed innocent and quite often denies the accused the right to receive effective or satisfactory notice of the charges against him/her.8 The initiative to elevate the rights of victims over the right of the accused was a method by which the International Criminal Court addressed concerns on the part of civilians in zones under conflict and non-governmental organizations. These concerns took the position that the ad hoc international criminal tribunals for Yugoslavia and Rwanda had neglected the input of victims by not permitting their participation in the trials and the appellate process. The International Criminal Tribunal addressed those concerns by making the concerns of victims a priority and by focusing more intently on restorative justice.9 The International Criminal Court is primarily founded on the objective that the administration of justice means justice not only for those who commit international crimes, but also for the victims.10 The Preamble to the ICC informs that: During this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.11 Trumbull notes that the reference to victims in the ICC’s preamble is not an accident. In fact, Trumbull goes farther to state, that this reference to victims was intentional and aimed at ensuring that the rights of victims occupy a “high priority”.12 Under the authority of the ICC, the International Criminal Court has made good on the prioritizing of victims’ rights primarily by permitting victims the right to participate in the criminal proceedings. In this regard, victims have the right to express their opinions relative to the authorization of an investigation, whether or not a case is admissible and any other matter that impacts their own interests.13 The ICC and the International Court, Rules of Procedure and Evidence 2000 contain a number of rules function to deny the accused person a right to a fair trial.14 For example, Rule 76 provides that the accused is entitled to pre-trial disclosure of previous statements and the witnesses’ names: Subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for in the Statute and rules 81 and 82.15 The protection and privacy of victims and witnesses will most likely arise in cases where the accused is charged under the doctrine of command responsibility.16 In conflict zones victims and witnesses are always under a fear of revenge, not only against them but against their loved ones. Moreover there is always a risk of intimidation of prosecution witnesses, whether they are witnesses or not. Feyter, Parmentier and Bossuyt also explain that: It should be noted that in many cases, the state apparatus is not strong enough or present enough at the local level, in order to prevent this kind of violence. And even if it were, victims often lack confidence in security forces…in the judiciary… and in the new government in general.17 It is therefore reasonable to expect that victims and witnesses in cases where the accused is charged and tried under the doctrine of command responsibility, there is a high degree of risk that the witnesses and victims may not be willing to cooperate with the prosecution. Therefore, at international criminal law, when prosecutors seek to prosecute state-sponsored atrocities, have an incentive for prioritizing the rights of victims. The concept of command responsibility at international law immediately draws attention to the abuse of power and its corresponding victimization. The doctrine of command responsibility informs that those in authority have specific obligations and therefore certain responsibilities to safeguard against international crimes on the part of their subordinates.18 When subordinates commit international crimes against civilians, protection of those civilians will obviously be a serious concern, particularly when those in responsible positions of authority are on trial for failing to safeguard against the commission of those crimes. This research study examines the prioritization of victims’ rights in international law and the extent to which this trend compromises the right of the accused to a fair trial. The emphasis is on the rights of victims and the rights of the accused under the doctrine of command responsibility. The main question under investigation is whether or not the elevation of the rights of victims to such an extent that the rights of the accused charged and tried under the doctrine of command responsibility is justified. The primary research question is therefore: Are the rights of the accused charged with international crimes under the doctrine of command responsibility unfairly compromised in favour of safeguarding the rights and interests of their alleged victims? This research question will necessarily involve an investigation of the doctrine of command responsibility, the rights of the accused at international criminal law and the recent tendency to safeguard and promote the interests and rights of the victims. A number of secondary research questions arise and they are: What are the rights of the accused in international criminal law? This question will be investigated by an examination of the development of international law following the Second World War to the present. What are the rights and interests of the victim in international criminal law? The question will be investigated by an examination of the developments in international criminal law relative to the rights and interests of victims. The primary emphasis is on the International Criminal Court and the international criminal tribunals of Rwanda and Yugoslavia and the Special Court for Sierra Leone. What is the doctrine of command responsibility? The doctrine of command responsibility will be examined from the period covering the Nuremberg and Tokyo International Military Tribunals following the Second World War and to the present, with particular emphasis on the International Criminal Court. The application of the doctrine of command responsibility will also be examined on a national level. The manner in which the doctrine of command responsibility is applied in Russia, the EU and the US will be examined and compared to developments in international law. Significance of the Study The administration of justice at international law is not an easy task. It involves the prosecution of persons for unconventional criminal acts such as genocide, sexual slavery and “brutal mutilations”.19 Involving the victims is entirely important because quite often crimes of this nature are more often than not facilitated by virtue of joint enterprise and the doctrine of command responsibility together with victims’ cooperation, ensures that blame is distributed as it should be.20 Protecting the rights of the accused to due process and in particular, the right to a fair trial in circumstances where the doctrine of command responsibility means that the victim’s cooperation may not be possible. This study is significant for critically examining how the rights of the accused and the rights of the victims can be more fairly balanced so as to ensure that the administration of justice is fair to both sides. Aims and Objectives This research study has as its objective the identification of the rights of the accused and the rights of victims and the consequences of compromising the rights of the accused. The idea is to identify whether or not retributive justice is more suited to the ends of justice in international criminal law where the doctrine of command responsibility arises. This research study will therefore attempt to make some suggestions for how the rights of victims can best be protected while preserving the accused person’s right to a fair trial in international criminal law. Research Methodology and Design Research Methodology This is a legal research study and commences with an examination of secondary sources for gathering and analysing the facts: the rights of the accused, the rights of victims and command responsibility in international criminal law. This research study starts out this way as a means of gathering background information and to identify the terms and to set a target for the research. The examination of secondary sources will also point toward black letter law including fundamental statutes and the relevant case law. The secondary resources are comprised of textbooks, articles/journals and internet resources. The second phase of the research is conducted by an examination of primary resources. These resources will identify the law as it is and how it is applied. In this regard, primary resources are cases, statutes and rules. The statutes for the most part are international conventions such as the Rome Statute of the International Criminal Court 1998. Research Design This research is organized and presented as follows: Chapter One: The rights of the accused and the doctrine of command responsibility during the First World War with particular emphasis on the Leipzig Trial and the Llandovery Castle Case will be examined. The rights of the accused and the doctrine of command responsibility during the trials held by the International Military Tribunals at Nuremberg and Tokyo following the Second World war will be examined. While the emphasis in on the Yamashita case, other cases will be analysed. Chapter Two: This chapter examines the period between the International Military Tribunals of Tokyo and Nuremberg and the just prior to the creation of the ICTY and the ICTR. Particular attention is paid to the work of the ILC and the Eichmann Case and the Calley Case and the emergence of victims’ rights in the absence of an international criminal tribunal. The national laws relative to command responsibility will be examined by evaluating the position in the US, the UK, France, the USSR and the Federation of Russia. The idea is to identify how these national laws contributed to the development of the doctrine of command responsibility in international criminal law. Chapter Three: This chapter turns attention to the rights of the accused and the doctrine of command responsibility under the auspices of the ICTY and the ICTR Charters and their application in cases. The treatment of the rights of the accused and the doctrine of command responsibility by the Special Court for Sierra Leone and other international courts will also be examined. Chapter Four: The rights of the accused, victims’ rights and the doctrine of command responsibility under the Rome Statute for the International Criminal Court and the interpretation by the International Criminal Court will be examined in this chapter. Important cases will therefore be examined including the Prosecutor v Jean-Pierre Bemba Gombo. Chapter Five: This chapter presents the findings and conclusions including recommendations for the balancing of the accused rights and the rights of victims in cases where liability is founded on the basis of the doctrine of command responsibility. Bibliography Journals/Articles Bembour, M. and Haslam, E. ‘Silencing Hearings? Victim-Witnesses at War Crimes Trials.’ (2004) 15(1) European Journal of International Law, 151-177. Danner, A. and Martinez, J. ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law.’ (2005) 93 California Law Review, 75-168. Haslam, E. ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience? (2004) The Permanent International Criminal Court: Legal and Policy Issues, 315-334. Johnson, S. ‘Victim Participation in the International Criminal Court: Neither Victims nor Executioners: The Dilemma of Victim Participation and the Defendant’s Right to a Fair Trial at the International Criminal Court.’ (Winter 2010)16 ILSA J Int’l and Comp L 489-511. Robinson, P. ‘The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY.’ (2009)3 Berkeley Journal L Int’l, L. Publicist, 1-11. Trumbull IV, C. ‘The Victims of Victim Participation in International Criminal Proceedings.’ (Summer 2008) 29 Michigan Journal of International Law, 777-826. van Bowen, T. ‘Victims’ Rights and Interests in the International Criminal Court.’ Cited in J. Doria; H. Gasser and M. Bassiouni (Eds) The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko. (BRLL 2009) Textbooks Aust, A. Handbook of International Law. (Cambridge: Cambridge University Press, 2010). Feyter, K.; Parmentier, S. and Bossuyt, M. Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations. (Intersentia 2005). Knoops, G. Defenses in Contemporary International Criminal Law. (Koninklijke Brill, 2008). McDonald, K. Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, (Kluwer Law International 2000). Statutes International Covenant on Civil and Political Rights 1976. International Court, Rules of Procedure and Evidence 2000. Rome Statute of the International Criminal Court 1998. Internet Sources Summation for the Prosecution by Justice Robert Jackson, Nuremberg 26 July 1945. http://law2.umkc.edu/faculty/projects/ftrials/nuremberg/Jacksonclose.htm (Retrieved 11 March 2011). Read More