Legitimacy and Coherence
Edited by Gideon Boas, William A. Schabas and Michael P. Scharf
Chapter 4: Applied rights in international criminal law: defence counsel and the right to disclosure
To understand the content and significance of fair-trial rights, it is crucial to understand how they work in the hands of those charged with applying them: counsel for that most desperate of creatures, the defendant in international criminal proceedings. Defence counsel brings a distinctive, pragmatic and utilitarian perspective to the learned study of fair-trial rights in international criminal law. Defence counsel views rights entirely instrumentally. This chapter considers how two important rights – the rights to disclosure of the case and disclosure of the evidence – operate in practice, how they work in the defendant’s interest, and how they are applied by counsel and by tribunals. Thus ‘rights in action’ is the focus. This approach does seem intellectually unromantic at first; in his Divine Comedy, Dante might well have hesitated to admit pragmatic defence counsel to the judicial Heaven of the Sun with Gratian and the great doctors of law. But an instrumental approach to fair-trial rights is justifiable and valuable. First, a pragmatic and historical approach to human rights allows the rights to be explored and assessed, rather than simply admired.1 More importantly, international criminal justice sets itself high goals, and adopts a system of adversarial criminal procedure to validate its openness, its reliability and its justice. It arms an accused with fair-trial rights, and with representation to apply those rights. That system demands robust and adversarial deployment of the rights of defendants, and is kept healthy by such an approach. Next, a utilitarian approach serves the accused.
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