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Title: A fair trial at the International Criminal Court? : human rights standards and legitimacy
Author: Widder, Elmar Richard
ISNI:       0000 0004 5917 9236
Awarding Body: University of Hull
Current Institution: University of Hull
Date of Award: 2015
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Can the procedure at the International Criminal Court be regarded as fair? And why is the level of fairness important for the ICC’s legitimacy? This thesis argues that the right to a fair trial is an indispensable prerequisite for international tribunals and that the ICC’s level of procedural fairness can be improved despite the Prosecutor’s obligation to search for inculpatory and exculpatory evidence equally. Questions of procedural fairness typically involve the principle of equality of arms and the right to adversarial proceedings. My argument is different. In a comprehensive analysis, I create a yardstick drawn from regional human rights decisions and the Human Rights Committee and measure the ICC’s procedure against this yardstick. The upshot is that the ICC’s procedure does not violate any procedural human rights law. Rather than being a cause for complacency, however, this apparently favourable result reveals an important limitation of existing legal standards of fairness: they do not take sufficient account of the importance of the investigative process as an integral part of a fair trial procedure. My argument draws on the work of Niklas Luhmann and Ronald Dworkin to argue that a weak level of fairness may lead to a loss of the ICC’s legitimacy, and that an adequate account of fairness must find a middle ground between an exclusive concern with procedural rights on the one hand or accuracy of outcomes on the other. An alternative is needed to a Prosecutor, who is required, on the one hand, to carry out investigations impartially and, on the other hand, to become a trial party at some point of the procedure. Having considered the option of a Co-Investigative Judge, this thesis concludes that fair trial procedures at the ICC can be improved through the setting-up of an Investigation Oversight Office and explains why such an office would achieve an enhancement in terms of fairness, procedural impartiality and expeditious trials.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Law