The Prosecutor’s Right to a Fair Trial in International Criminal Court

Abstract

This article examines the extension of fair trial rights to actors beyond theaccused in the International criminal procedure’s standard-settingfunction. It will show that the prosecutor has, on occasion, been held topossess specific procedural entitlements that were designed and set out in humanrights instruments and international criminal statutes with only the accused inmind. The extension of procedural guarantees such as the right to legalrepresentation and the right to trial without undue delay to other parties with aninterest in the outcome of proceedings, such as victims and the internationalcommunity, has also be discussed.

In addition, this article considers the need to have a balance among the rights of theaccused with the rights of witnesses, in particular where the witness’s life orsafety is at risk. This balancing exercise will be seen justifying because itinvolves a balancing of two individual’s human rights — the accused’s right to afair trial on one hand and the witness’s right to life or liberty on the other. Bycontrast, the balancing exercise which courts have occasionally entered into, inpursuit of equilibrium between the ‘prosecutor’s rights’ and the ‘accused’s rights’is fundamentally flawed, because the alleged procedural rights of the prosecutorhave no basis in customary international law. The prosecution does possesscertain interests laid down in the statutes, designed to ensure that its case is putbefore the court in a coherent and complete manner, but it shall be argued thatthese interests should not be balanced with the rights of the accused, which oughtto stand at the apex of any considerations by the court. As shall be seen in some ofthe examples discussed in this article, the impact of these extensions on the rightsof the accused have been far from theoretical.