This book examines two of the most fundamental precepts of international criminal justice: fairness and the rights of the accused. These two ideas – and the relationship between them – are central, contested and misunderstood. What exactly is ‘fairness’? How do we know whether or not a trial is ‘fair’? Can a trial still be ‘fair’ if the rights of the accused are undermined? This book particularly examines procedural decisions made in recent trials at the International Criminal Court (ICC) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). The primary question in this book is, how are fairness and the rights of the accused connected in procedural decision-making in contemporary international criminal trials? Trial Chambers have a responsibility to ‘ensure that a trial is fair and expeditious and conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’. Fairness, rights and procedure are therefore closely aligned. However, I show that in making decisions about how these trials are run, Trial Chambers routinely invoke the idea of fairness – in order to justify decisions that may undermine the rights of the accused. Thus, although fairness and rights are supposed to be closely related, in fact, we can observe a distancing between them in judicial decisions. This book ultimately calls for a renewed close association between fairness and the rights of the accused, particularly when making determinations on matters of procedure in international criminal trials.

Despite the interconnectivity of fairness, rights and procedure, in this book, I argue that they are also rightly conceived of as separate and separable aspects of international criminal trials. It is important to examine each of fairness, rights and procedure as discrete entities to properly appreciate how they are connected and their significance (both separately and collectively) to international criminal trials. Fairness is the overriding requirement of international criminal trials. Fairness is given content by the rights of the accused, and these rights are operationalised and ensured by procedure. However, fairness consists of more than the rights of the accused – but, as I demonstrate, there is little agreement about precisely what else this entails. In this book, the rights of the accused are examined as procedural rights (gained by virtue of being an accused in a criminal process) rather than human rights.