Research Handbooks in International Law series
Edited by Bartram S. Brown
Chapter 11: Protecting the fair trial rights of the accused in international criminal law
: comparison of the International Criminal Court and the military commissions in Guantánamo David Weissbrodt and Kristin K. Zinsmaster INTRODUCTION The United States government has been reluctant to ratify the Rome Statute of the International Criminal Court1 (ICC) for a number of reasons,2 including concerns about the absence of fair procedures. Instead of using the ICC for trying individuals who have arguably committed war crimes and other criminal offenses during the War on Terror, the US government has established military commissions to try ‘unlawful enemy combatants’.3 This chapter compares the fairness of the procedures afforded by the ICC and the US military commissions in an effort to examine the larger issue of the fundamental right to a fair trial.4 The concept of a fair trial is ‘rather amorphous’, but included within it are ‘several more concrete, clear-cut guarantees’, without any of which, fair proceedings are impossible.5 Specific international fair trial standards have been established in such treaties and instruments as the Universal Declaration of Human Rights,6 common article 3 of the Geneva 1 Rome Statute of the International Criminal Court, 2187 UNTS 90, entered into force 1 July 2002. See John B. Bellinger, Legal Advisor, ‘The United States and the International Criminal Court: Where We’ve Been and Where We’re Going’, Remarks to the DePaul University College of Law, 25 April 2008, available at www.state.gov/s/l/rls/104053.htm (pointing out Congress’ early concerns that accused persons would be denied fair trial rights by an international tribunal); Supplemental Appropriations Act for Further Recovery...
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