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4 - Procedure and Fairness in a Decentralized System

Published online by Cambridge University Press:  20 April 2018

Jonathan Hafetz
Affiliation:
Seton Hall University, New Jersey
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Summary

This chapter explores how fair trial standards can develop within what remains a largely decentralized system of international criminal justice. The chapter outlines the different roles procedure plays within this system. It explains that while the multiplicity of tribunals at the national and international level creates a greater risk of deviation from due process requirements, it also provides opportunities for entrenching those requirements across different societies. The chapter examines the potential for the ICC to advance fair trial safeguards through its complementarity framework as well as the obstacles to pursuing this goal. It also examines how due process safeguards have factored into decisions by the ICTY and ICTR (and their successor residual mechanism) on whether to refer cases to national jurisdictions. The chapter then turns to hybrid tribunals. It explains the ways in which hybrid tribunals have developed procedural safeguards, such as by creating models for independent defense counsel offices, and their comparative advantages in embedding those safeguards within domestic legal systems. But it also discusses some potential risks posed by hybrid tribunals, which include both shielding powerful officials from criminal responsibility and relaxing fair trial standards, in a quest for vengeance.
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Chapter
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Punishing Atrocities through a Fair Trial
International Criminal Law from Nuremberg to the Age of Global Terrorism
, pp. 109 - 141
Publisher: Cambridge University Press
Print publication year: 2018

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