Violations of Rights of the Accused at International Criminal Tribunals: The Problem of Remedy

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Introduction

International criminal tribunals pose a unique set of legal challenges, both substantive and procedural. Since the 'renaissance' of the international tribunal in the 1990s, (1) these challenges have proved fertile ground for commentary by criminal law scholars and international law scholars alike. One prominent area of scholarship has addressed the question of the protection of the rights of accused in the context of international criminal proceedings. Commentary in this area has typically addressed the normative question of which rights ought to be protected by the tribunals. Focus has centred on analyses of applicable sources of human rights law and identification of structural and political obstacles to protection, (2) with most commentators concluding that there are gaps in the existing protection and suggesting ways in which protection may be strengthened. (3)

While the 'what' has therefore been given considerable attention, few commentators have given fulsome consideration to how rights accepted as falling within the scope of the tribunal process are to be protected. This question is particularly relevant in the context of providing remedies for rights violations, an area which, I argue, raises significant issues.

This article sets aside questions of 'what'-what human rights norms apply to international criminal tribunals, what institutional means are to be applied for their guarantee-and focuses on the substantive question of 'how': how can tribunals adequately and effectively remedy rights violations in respect of individual accused? It argues that the unique situation of international criminal tribunals renders traditional remedies inadequate. As a result, principled reform is needed in order for tribunals to function effectively while, at the same time, vindicating the principles underlying due process protection.

I first identify current systemic obstacles to the provision of effective remedies within the international criminal tribunal context. I then examine the provision of remedies within a number of national jurisdictions in order to draw out underlying principles. The article focuses primarily on Canadian law but includes an overview of approaches in other jurisdictions, which show significant common ground in their underlying values. Ultimately, these principles are evaluated in light of the unique context of international criminal tribunals and used to rethink and reformulate a more effective remedy scheme in the tribunal context.

Problems in Remedying Violations of Rights of Accused

It is undisputed that, as in domestic proceedings, international tribunals must meet violations of (recognized) rights of the accused with adequate, effective remedies. (4) In practice, however, tribunals are presented with two distinct but mutually reinforcing systemic obstacles to the identification and application of such remedies in specific instances. Both obstacles stem from the unique severity of the charges with which international criminal tribunals are concerned.

The first barrier is a political one. The Barayagwiza case provides an epitomizing example of this problem: (5) Jean-Bosco Barayagwiza, considered the "lynch-pin of the conspiracy [to commit genocide against the Tutsis]," (6) was detained for an illegally lengthy period of time prior to his transfer to the ICTR. (7) Accordingly, the Appeals Chamber issued a stay of proceedings in November 1999 due to 'abuse of process'. The legitimacy of the tribunal was severely undermined in Rwandan public opinion; the Rwandan government immediately threatened to suspend cooperation with the ICTR and supported this threat by filing its own international arrest warrant and extradition request. (8) Within the space of five months, the Appeals Chamber had been reconstituted under a new President, accepted, on questionable grounds, the Prosecutor's appeal of its initial decision, (9) and overturned the decision to stay the proceedings, calling instead for an appropriate remedy to be determined after Barayagwiza" trial. …