Human Rights of Victims and Witnesses in International Court

 

TITLE:

A study of the steadiness of fundamental human rights between the interest of victims/witnesses and defendants under the International criminal court proceeding.

INTRODUCTION:

In recent years there has been an increasing interest in relation to the steadiness of fundamental human rights between the interest of victims/witnesses and defendants under international court proceedings. The Universal Declaration of Human rights the mother of all treaties and convention under Article 10 stipulates that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations of any criminal charge against him”[1]. Similarly, the European convention of Human rights Article 6 parleys the right to fair trial of everyone charged with a criminal offence[2].Fundamental Human rights is a very imperative feature in criminal trials and respected by all states without discrimination, however, it is a dilemma due to the fact that over the years victims or witnesses have had their rights upheld over that of the defendants’ rights during one point or another during international criminal court proceedings, specifically the ICC, ICTR AND ICTY. This indeed is a predicament due to the fact that Fundamental human rights has a universal protection and proclaimed by states all over the world. The purpose of the research seeks to investigate whether indeed there is a steadiness of fundamental rights between the interest of victims/witnesses and defendants under international court proceedings. The steadiness of the rights of victims/ witnesses and defendants will be critically analysed in relation to the international criminal courts namely the international criminal court (ICC), the international tribunal for Rwanda (ICTR) and International tribunal of former Yugoslavia(ICTY).

THE OBJECTIVE OF THE STUDY

The above aim will be accomplished by achieving the succeeding research objectives:

1. To critically investigate what actually constitutes as a fair trial in international criminal court proceedings.
2. To critically identify and analyse how fundamental rights of defendants have been upheld or declined during international criminal court proceedings.
3. To critically identify and analyse how fundamental rights of victims/witnesses have been upheld or declined during international criminal court proceedings.
4. To make recommendations as to how the international criminal courts can balance the rights of victims /witnesses and defendants during international criminal court proceedings.

LITERATURE REVIEW:

In order to do a critical summary and assessment of the variety of prevailing materials that deals with knowledge and understanding to the research project, the literature review will offer a milieu or background and to provide an understanding to preceding work by viewing the fairness in international criminal trials, the impact of the rights of victims /witnesses in international criminal court proceedings, the protection of accused in international criminal court proceedings and then finally the conflict between the rights of the victims and the rights of the accused.

FAIRNESS IN INTERNATIONAL CRIMINAL TRIALS.

Where interests of dissimilar trial applicants meet head on, who ought to be the main total attention of fair trial concerns in international criminal trials?[3] The right to a fair trial is a standard of international human rights law intended to safeguard individuals from the illegal and arbitrary limitation or denial of other primary rights and freedoms, the greatest outstanding of which are the right to life and liberty of the person[4].The fair trial problem can be discussed in  two methods.’ First, are the substantive rights conferred to the defendant sufficient? This method centres on the rights set forth in the tribunals’ statutes, rules of procedure and evidence, and case law, for instance, the right to oppose witnesses or the right to lawyer.  The solution to this part of the fair trial inquiry is complex by the exceptional arrangements of these courts, which are mended in sync from the civil law and common law legal systems.

Also, there are essential problems in taking legal action in these categories of crimes, which, according to some,’ might call for odd trial procedures, at least from the viewpoint of domestic legitimate norms.’ The next method to the problem of fair trials requests, in its place, whether these international courts have the liberation and coercive authorities essential to safeguard fair trials, irrespective of the adequacy of the paper rights rendered the defendant in the tribunals’ statutes[5].

THE IMPACT OF THE RIGHTS OF VICTIMS/WITNESSES IN INTERNATIONAL CRIMINAL COURT PROCEEDINGS.

According to researchers “considering victims,” interests has been construed as ‘the taking into forethought the opinions and concerns of victims in the furtherance of the judicial practices. As victims endure harm as a consequence of crimes it is recognised that they have interests in criminal proceedings against those liable. Exactly how victims’ interests are thought through is reliant on the procedural rules to which they can represent their opinions and interest, likewise more essentially in how those interests are thought out by verdict makers, in the case of the courts, judges. Consequently, the contemplation of victims’ wellbeing in this scope can be cut down to two ideas of procedural and substantive justice for victims. Procedural justice involves impartiality of treatment in procedures. With respects to victims, this encompasses their involvement in proceedings, influence on judgements, and capacity to form results. Treating victims with reverence can improve their satisfaction with criminal proceedings. Substantive justice denotes the results of judicial instruments. For victims this encompasses rectifying their hurt and the reasons of victimisation, bringing about three main rights in connection with results: truth; justice; and compensations. Procedural and substantive justice balance each other to safeguard a more operative redress for victims’ harm. Involvement permits victims to tender their interests in judicial proceedings so that they have an influence on judges’ decision-making procedure, which consecutively can assist to safeguard results more successfully answer to their desires. Even though permitting victims to voice out their needs and interests is imperative, it does not call for their opinions to take over judges’ choices, just that they are weighed and taken into account in determining justice[6].The crucial problem with this explanation is that often during criminal court proceeding victims interest as well their needs affects the judge’s decisions in determining justice. What about the defendants, do their rights in terms of needs and interest affect or have an impact in the judge decision in determining justice. It is indeed a puzzle because although the victim’s interest will not dominate the judge’s decisions it will have an impact regardless of how high or low the impact is.

PROTECTION OF THE RIGHTS OF THE ACCUSED IN INTERNATIONAL CRIMINAL COURT PROCEEDINGS

The safeguard of the rights of the accused rests habitually in the interest of all civilised systems of law. All legal systems make possible certain principles for the rights of the accused. Those rights is the assurance that if criminal proceedings are held no wrong will be done to the suspected criminal and his right to a fair trial will be guaranteed. Those concepts, is established in the human rights law, have been embraced together on the national and universal level[7].As Judge Richard May and Marieke Wierda argue, “the object and purpose of the modern tribunals are to contribute to the restoration and maintenance of peace and security in the former Yugoslavia and Rwanda”. This is to be accomplished through shepherding fair and prompt trials’.  But what in fact does it point to that a trial necessities to be fair? This phrase is, often used within the provisions of human rights law, be made up of of different components[8].

THE CONFLICT BETWEEN THE RIGHTS OF THE VICTIMS/WITNESSES AND THE RIGHTS OF DEFENDANTS

According to researchers, it is believed that In order to safeguard that the participation of victims does not turn out to be harmful to the rights of the accused, it is vital that the models and the limits of victim involvement in international criminal trials are appropriately acknowledged because of the rights of defendants. Any struggle amongst the rights of victims and the rights of defendants has to be the aim of a flawless harmonizing that must be performed in the enlightenment that the all-embracing purpose of criminal procedure is to grasp a verdict of guilt or innocence at the same time as protecting at the utmost level the rights of those exposed to the proceedings (i.e. the suspect and the accused). The contemporary criminal procedure is founded on the supposition that it is “better that ten guilty person’s escape than that one innocent suffers”. The harmonizing of victim participation alongside the rights of the accused should be stimulated by some procedural doctrines of an authoritative nature, which signify the support of international criminal procedure: the presumption of innocence, the right to a fair hearing in full equality, the right to an prompt trial, the right to challenge and divulge evidence, and so on[9].

Increasingly, the research community believes that there has to be some set of procedural principles in order to balance the victim’s participation in the rights of the accused, what other procedural principles the international court needs in order to balance the victim’s participation rights and that of the accused. The gap is still visible we don’t necessary need any procedural principles in order to balance the rights. Rights are rights everyone is entitled to, it does not distinguish between persons. It is important to trace these rights to prove that rights need not be set in any procedural principles they have already been established by law instruments. This research study will prove that there is no need to have any set guidelines for international criminal courts to follow. The research will prove that the right to fair trail already exists so there will be no need to formulate any new procedural principles the courts only need to refer to them and this would resolve any conflict or tension during criminal proceedings.

THE PROPOSED METHODOLOGY

The proposed approach to the research project is doctrinal legal research method. Doctrinal legal research is committed to the making of legal ‘doctrines’ as a result of the inquiry of legal rules. In the thick of the common law jurisdictions, legal rules remain to be embedded within statutes and cases. They clear up doubts in the midst of rules and attribute them in a reasonable and comprehensible structure and denominated by their connection to other rules. The methods of doctrinal research are portrayed by the study of legal texts and, for this purpose, it is habitually termed as ‘black-letter law’. Doctrinal research is consequently committed to the uncovering and progress of legal doctrines for publication in textbooks or journal articles and its research inquiries take the form of probing ‘what is the law?’ in precise matters[10].Similarly, the benefit of doctrinal research is that it is the orderly laying down of the law in precise context, it clears up obscurities within rules, and it places them in a sound and clear structure to describe their relationship to other rules. Doctrinal legal research is consequently involved with the finding and advancement of legal doctrines and it sheds light on the nature of a law[11]

In order to address the objectives namely to critically investigate what actually constitutes as a fair trial in international criminal court proceedings, to critically identify and analyse how fundamental rights of defendants have been upheld or declined during international criminal court proceedings ,to critically identify and analyse how  fundamental rights of victims/witnesses have been upheld or declined during international criminal court proceedings and To make recommendations as to how the international criminal courts can balance the rights of victims /witnesses and defendants during international criminal court proceedings doctrinal legal research method will be used. Primary and secondary Sources such as books, journals/articles, statutes and cases will be used to carry out in-depth investigations of the various objectives. The sources will help bring out “what is the law” on the matter” and then appropriate recommendations can be made on how to improve the steadiness of fundamental human rights between the interest of victims/witnesses and defendants under the International criminal court proceeding.  This approach clears up any vagueness in the law and also shed light on the nature of the law on the matters above.

DISSERTATION OUTLINE

Abstract
Dedication
Acknowledgement
Chapter 1	Introduction
Chapter 2	Literature Review
Chapter 3	Methodology
Chapter 4	Results
CHAPTER 5	Recommendation and References

MY PERSONAL WORK PLAN:

MONTHS	MAY	JUNE	JULY	AUGUST	SEPTEMBER	OCTOBER
Topic Approval	  √
Aims and Objectives	√
Literature Review	    √
METHODOLOGY Approach and analysis	√
Results Discussion and Conclusion	√
References and Acknowledgements	√
Submission to tutor	√

Bibliography

Azam MM and Open Book Publishers., Intellectual Property and Public Health in the Developing World (Open Book Publishers 2016)

Chynoweth P, ‘Legal Research’ (2008) <http://www.sps.ed.ac.uk/__data/assets/pdf_file/0005/66542/Legal_Research_Chynoweth_-_Salford_Uni..pdf> accessed 4 January 2017

Cogan JK, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’ (2016) 27 Yale Journal of International Law Article <http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1171&context=yjil> accessed 6 January 2017

ECHR, ‘European Convention on Human Rights’ (2014) <http://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 30 December 2016

Kremens K, ‘The Protection of the Accused in International Criminal Law according to the Human Rights Law standard1’ (2011) 1 Wroclaw Review of Law, Administration & Economics

Moffett L, ‘Meaningful and Effective? Considering Victims’ Interests through Participation at the International Criminal Court’ (2015) 26 Criminal Law Forum 255

Rigney S, ‘”The Words Don”t Fit You’: Recharacterisation of the Charges, Trial Fairness, and Katanga’ (2014) VOL15(1) Melbourne Journal of International Law <http://law.unimelb.edu.au/mjil/issues/issue-archive/151> accessed 4 January 2017

‘Universal Declaration of Human Rights’ <http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 30 December 2016

‘WHAT IS A FAIR TRIAL? A Basic Guide to Legal Standards and Practice Lawyers Committee for Human Rights’ (2000) <https://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf> accessed 6 January 2017

Zappala S, ‘The Rights of Victims v. The Rights of the Accused’ (2010) 8 Journal of International Criminal Justice 137

Citations, Quotes & Annotations

‘Universal Declaration of Human Rights’ <http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 30 December 2016

‘Universal Declaration of Human Rights’ p1 – p8 <http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 30 December 2016.

“Article 10Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him” ‘Universal Declaration of Human Rights’ p1 – p8 <http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 30 December 2016.

Zappala S, ‘The Rights of Victims v. The Rights of the Accused’ (2010) 8 Journal of International Criminal Justice 137

“better that ten guilty person’s escape than that one innocent suffers” S Zappala, ‘The Rights of Victims v. The Rights of the Accused’ (2010) 8 Journal of International Criminal Justice 137, p137 – p164.

[1] Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”‘Universal Declaration of Human Rights’ p1 – p8 <http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 30 December 2016.

[2] ECHR, ‘European Convention on Human Rights’ (2014) <http://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 30 December 2016

[3] Sophie Rigney, ‘”The Words Don”t Fit You’: Recharacterisation of the Charges, Trial Fairness, and Katanga’ (2014) VOL15(1) Melbourne Journal of International Law <http://law.unimelb.edu.au/mjil/issues/issue-archive/151> accessed 4 January 2017.

[4] ‘WHAT IS A FAIR TRIAL? A Basic Guide to Legal Standards and Practice Lawyers Committee for Human Rights’ (2000) <https://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf> accessed 6 January 2017.

[5] Jacob Katz Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’ (2016) 27 Yale Journal of International Law Article <http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1171&context=yjil> accessed 6 January 2017.

[6] Luke Moffett, ‘Meaningful and Effective? Considering Victims’ Interests through Participation at the International Criminal Court’ (2015) 26 Criminal Law Forum 255.

[7] Karolina Kremens, ‘The Protection of the Accused in International Criminal Law according to the Human Rights Law standard1’ (2011) 1 Wroclaw Review of Law, Administration & Economics.

[8] As Judge Richard May and Marieke Wierda argue, ‘the object and purpose of the modern tribunals are to contribute to the restoration and maintenance of peace and security in the former Yugoslavia and Rwanda”Karolina Kremens, ‘The Protection of the Accused in International Criminal Law according to the Human Rights Law standard1’ (2011) 1 Wroclaw Review of Law, Administration & Economics p26 – p48.

[9] “better that ten guilty person’s escape than that one innocent suffer”S Zappala, ‘The Rights of Victims v. The Rights of the Accused’ (2010) 8 Journal of International Criminal Justice 137, p137 – p164.

[10] Paul Chynoweth, ‘Legal Research’ (2008) <http://www.sps.ed.ac.uk/__data/assets/pdf_file/0005/66542/Legal_Research_Chynoweth_-_Salford_Uni..pdf> accessed 4 January 2017.

[11] Mohammad Monirul Azam and Open Book Publishers., Intellectual Property and Public Health in the Developing World (Open Book Publishers 2016).