Violations of rights of the accused at international criminal tribunals: the problem of remedy.

AuthorNaymark, Daniel
PositionEssay

Introduction

International criminal tribunals pose a unique set of legal challenges, both substantive and procedural. Since the 'renaissance' of the international tribunal in the 1990s, (1) these challenges have proved fertile ground for commentary by criminal law scholars and international law scholars alike. One prominent area of scholarship has addressed the question of the protection of the rights of accused in the context of international criminal proceedings. Commentary in this area has typically addressed the normative question of which rights ought to be protected by the tribunals. Focus has centred on analyses of applicable sources of human rights law and identification of structural and political obstacles to protection, (2) with most commentators concluding that there are gaps in the existing protection and suggesting ways in which protection may be strengthened. (3)

While the 'what' has therefore been given considerable attention, few commentators have given fulsome consideration to how rights accepted as falling within the scope of the tribunal process are to be protected. This question is particularly relevant in the context of providing remedies for rights violations, an area which, I argue, raises significant issues.

This article sets aside questions of 'what'-what human rights norms apply to international criminal tribunals, what institutional means are to be applied for their guarantee-and focuses on the substantive question of 'how': how can tribunals adequately and effectively remedy rights violations in respect of individual accused? It argues that the unique situation of international criminal tribunals renders traditional remedies inadequate. As a result, principled reform is needed in order for tribunals to function effectively while, at the same time, vindicating the principles underlying due process protection.

I first identify current systemic obstacles to the provision of effective remedies within the international criminal tribunal context. I then examine the provision of remedies within a number of national jurisdictions in order to draw out underlying principles. The article focuses primarily on Canadian law but includes an overview of approaches in other jurisdictions, which show significant common ground in their underlying values. Ultimately, these principles are evaluated in light of the unique context of international criminal tribunals and used to rethink and reformulate a more effective remedy scheme in the tribunal context.

Problems in Remedying Violations of Rights of Accused

It is undisputed that, as in domestic proceedings, international tribunals must meet violations of (recognized) rights of the accused with adequate, effective remedies. (4) In practice, however, tribunals are presented with two distinct but mutually reinforcing systemic obstacles to the identification and application of such remedies in specific instances. Both obstacles stem from the unique severity of the charges with which international criminal tribunals are concerned.

The first barrier is a political one. The Barayagwiza case provides an epitomizing example of this problem: (5) Jean-Bosco Barayagwiza, considered the "lynch-pin of the conspiracy [to commit genocide against the Tutsis]," (6) was detained for an illegally lengthy period of time prior to his transfer to the ICTR. (7) Accordingly, the Appeals Chamber issued a stay of proceedings in November 1999 due to 'abuse of process'. The legitimacy of the tribunal was severely undermined in Rwandan public opinion; the Rwandan government immediately threatened to suspend cooperation with the ICTR and supported this threat by filing its own international arrest warrant and extradition request. (8) Within the space of five months, the Appeals Chamber had been reconstituted under a new President, accepted, on questionable grounds, the Prosecutor's appeal of its initial decision, (9) and overturned the decision to stay the proceedings, calling instead for an appropriate remedy to be determined after Barayagwiza" trial. (10)

This chain of events illustrates the potential force of political opposition to any meaningful remedy when the accused is regarded by an entire society as a villain of the highest order. Such opposition can do more than undermine the reputation of tribunals; it can erode the support among stakeholders necessary for the establishment and continued functioning of such highly politicized institutions. Momeni put it succinctly in commenting on the Barayagwiza crisis:

When the Tribunal puts itself in situations where it is faced with non-cooperation from Rwanda, and forces the Appeals Chamber to render decisions with negative implications for the reconciliation process, it damages not only its own reputation, but also hampers the pursuit of international justice by extension. (11) The second obstacle to adequate and effective remedy is a substantive legal one. In establishing remedies, the seriousness of the allegations against an accused inevitably enters the analysis. In the case of international criminal tribunals, where allegations can include crimes against humanity and war crimes, their consideration makes the implementation of effective remedies difficult. Sometimes, this difficulty arises due to an explicit requirement that, when considering the appropriate remedy, judges must balance the gravity of the violation against the gravity of the charges. (12) Such a requirement entails that the more serious the alleged offence, the higher the level of tolerable human rights abuse against the accused. For serious breaches of international humanitarian law, it is extremely difficult to justify throwing out a case no matter what abuse the accused has suffered, either directly through a setting aside of jurisdiction or indirectly through the exclusion of evidence necessary to prove the charges. (13)

The seriousness of the charges may also enter the remedy analysis indirectly as, for example, ultimately occurred in Barayagwiza. (14) As previously noted, the Appeals Chamber in the second Barayagwiza decision held that a remedy for Barayagwiza's illegal detention was to be determined following his trial. Specifically, it ruled that Barayagwiza was to receive financial compensation in the event of his acquittal and a sentence reduction in the case of conviction. (15) Accordingly, in sentencing Barayagwiza following his conviction three years later, the Trial Chamber reduced his sentence from life to 35 years. (16) One can question the significance of this reduction, as it entailed Barayagwiza's imprisonment into his 80s--quite likely a life sentence in effect. (17) This judgment illustrates that, at least in respect of sentence reduction, it is difficult to impose a practically meaningful remedy when the accused is convicted on charges infinitely more serious than those carrying maximum sentences in domestic criminal law schemes. Where is the practical remedy in sentencing an accused found to be responsible for the deaths of 500,000 people as if he had only been responsible for the deaths of 400,000 people, for example?

Principles Underlying Remedies for Violations of Rights of the Accused

Part of the difficulty in determining the applicability of international human rights law to international criminal tribunals lies in the fact that the body of law has been developed with state actors in mind. As a result, commentators such as Sluiter have found it necessary to break down, rethink and reformulate human rights law in order to adapt it to the tribunal context. (18) A similar approach is required with respect to determining appropriate remedies for violation of rights of accused; as the above discussion has shown, there are serious barriers to tribunals' application of the remedies available to domestic courts. To this end, this section will elaborate the underlying principles behind remedies for due process violations and attempt to reformulate them into remedies applicable to international criminal tribunals, having regard to both the nature and the objectives of tribunals. In elucidating these principles, reference will be made to Canadian laws and jurisprudence, which provide a nuanced example of due process protection and one whose principles translate well to the tribunal context. This examination will be supplemented by an overview of approaches in other jurisdictions, which reveals surprisingly consistent underlying principles.

Remedies for Due Process Violations in Canada

The Canadian Charter of Rights and Freedoms sets out all constitutionally protected civil and political rights of individuals in Canada. (19) Section 24 details the remedies available for a breach of a Charter provision. S. 24(1) is an extremely broad general provision entitling those whose rights have been violated to seek judicial remedy. General principles attached to this provision are that remedies should be responsive, (20) effective and meaningful. (21) The Canadian Supreme Court has also stressed the importance of a flexible judicial approach to remedies in order to meet evolving challenges and circumstances. (22)

In Canada, as in other jurisdictions, there are two specific remedies that typically apply in cases of due process violation: exclusion of evidence and stay of proceedings. The former is specifically provided for under s. 24(2), which is worth reproducing here:

Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT