CHAPTER ONE

GENERAL INTRODUCTION

• Background to the Study

The Second World War which was fought from 1939 – 1945 caused some of the most heinous crimes and wide scale destruction and atrocities ever witnessed in human history. Mankind therefore saw the compelling and imperative need for accountability from those who perpetrate crimes that violate international law. That is to say core crimes that shock the conscience of humanity otherwise referred to as the crimes of crimes or capital crimes.  It first started with the historical trials that saw the establishment of the Nuremberg trials that were aimed at holding the Nazi regime accountable for the mass extermination of Jews in Europe[1], the Tokyo[2] trials that targeted the military regime in Japan and the Yokohama trials of the far east that were put in place by the Allied powers with the assistance of the United Nations Organization. Then came the ad-hoc tribunals that were set up in the 1990s and 2000s. On the 25 of May 1993, the UN Security Council adopted resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (ICTY)[3] as war rages on in that country. It was to try and sanction those responsible for mass killing of Bosnian Muslims, Croats, Kosovo Albanians as well as abuses against ethnic Serbs in the Balkans. In November 1994 the UN Security Council created the International Criminal Tribunal for Rwanda (ICTR)[4] through resolution 955 to prosecute and sanction those who perpetrated genocide and other International Crimes during the instability in that country and other states of the great lake region. The Special Court for Sierra Leone set up in 2002 following UN Security Council resolution 1315 to try those responsible for the decade-long civil war in that country from 1991 to 2002.[5]

The Special Court for Lebanon and the Extra-Ordinary Chamber for Cambodia.[6] These ad-hoc tribunals contributed immensely to the development of International Criminal Law and the protection and guarantee of the rights of accuseds. International Criminal Law is highly influenced by the imperfect Nuremberg and Tokyo Military Tribunals which addressed war crimes, crimes against peace and crimes against humanity committed during the Second World War. These tribunals laid the foundation of International Criminal Justice. The principles developed by the historical tribunals are still relevant today and are used by more recent international tribunals.

The ad hoc tribunals provided some guarantees for the protection of the rights of accused in their founding instruments and their Rules of Procedure and Evidence including other associated legal texts but same were still found wanting.

The advent of the International Criminal Court (ICC) on the 1^st of July 2002 marked a significant historic milestone in the pursuit of International Criminal Justice and accountability. Created on the 17 of July 1998 its founding instrument; the Rome Statute was adopted by over 120 sates of the world. It is the first Permanent International Criminal Court with international legal personality to prosecute and sanction individuals who perpetrate the most heinous and gruesome crimes that shock the conscience of humanity. The advent of the court was greeted with such a euphoria. Its mandate, function and jurisdiction are enshrined in the preamble to its statute and in articles 1 and 5 of same. Article 5 spells out the jurisdiction of the court as comprising of the crime of genocide, crimes against humanity, war crimes and the crime of aggression.[7]

An accused person is one of the principal parties in a criminal trial. He is the one against whom an action is brought by the prosecutor. As such he has legal and legitimate rights accorded to him by both legal and human rights instruments that are geared towards guaranteeing a fair and equitable trial, protecting his dignity and integrity as a human being, respecting his rights to privacy, rights to presumption of innocence, right to remain silent without the silence being imputed as guilt or used in the determination of innocence, right to counsel, right to be informed of the case against him, right to bail, right to an interpreter, right against torture, right to life, etc. The above legal, human and legitimate rights are very fundamental as they are enshrined in legal and human rights bodies and instruments and their non-respect is sanctioned by an absolute nullity of the entire proceedings and the judgment thereof. Besides, the accused can bring an enforceable action in appropriate circumstances for their non-respect and can equally claim a legal redress as a holder of such rights.[8]

The prime aim of the justiciability of the rights of the accused in International Criminal law is to avoid arbitrary and unjust proceedings that would occasioned a miscarriage of justice thereby constituting an affront to its dispensation. The origin of the rights of accused could be traced as far back as in the days of Aristotle who was a proponent of a fair trial which is a frame work right on which other rights converge. To Aristotle, these rights were aimed at attaining formal justice. That is to say doing what is right in all circumstances. In order to expound on the concept, Aristotle emphasized the necessity of treating like cases alike. The rights of the accused became very prominent after the Second World War with the birth of the International Criminal Law.

That was when International Criminal Law became institutionalized and International organizations such as the United Nations saw the need to promote, protect and guarantee the rights of man (the rights of accused inclusive) so as to avoid or mitigate the occurrence of another calamity or universal disaster such as the Second World War. International Human Rights Law is therefore a post Second World War phenomenon and many organizations conventions, treaties, declarations including national laws embraced its enactment. Examples include; the UN Charter,[9] the UN Declaration on Human Rights, the UN Convention on the Rights of as Child (UNCRC), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights, the UN Convention for the Protection of People with Disabilities, the UN Convention against Torture, the UN Convention on the Elimination of all forms of Racial Discrimination etc. Fair trial rights in particular are contained in article 4 of the International Covenant on Civil and Political rights (ICCPR), article 40 of the convention on the rights of the child (UNCRC) and article 13 of the Convention on the Rights of Persons with Disabilities (UNCRPD).

The topic focuses on the justiciability of the rights of accused persons under the International Criminal Court. BLACK’S LAW DICTIONARY 12^th Edition[10] defines justiciability as the suitability of a matter for legal determination by a court of law.  When a matter is justiciable, it means that it creates enforceable rights to the right’s holder. That is to say the non-respect or non-application of that right accords a right for redress to the affected party which is legally enforceable. Justifiable rights are therefore legally enforceable and not mere aspirations.

“Rights” on their parts are legal, social or ethnical entitlements or freedoms. They define what is allowed or owed to an individual(s) according to a legal system, social convention or ethnical theory. The most fundamental in the instant case are legal and human rights. The redress (justiciability) for the violation of the rights of accused persons before the International Criminal Court could be judicial as well as quasi-judicial, though the quasi-judicial means exerts a lesser impact given that the International Criminal Court is a legal institution with an independent existence.[11] Its statute contemplates some rights of action for violation of the rights of accuseds. That is because failing to provide a redress for violation of such rights would amount to human rights violation which the court seeks to protect and prevent. While accused persons are guaranteed certain vital rights to ensure a fair trial, protect their human dignity, and maintain their integrity, these rights are not absolute and could be subject to certain limitations within the law. That is to say the limitations are provided for and regulated by the law and only the law. These limitations are based on the need to balance the rights of the accused with other considerations like public safety, security, immediate necessity, public morals and the legitimate right of other parties.

The importance and essence of safeguarding the rights of accused persons is reflected and enshrined in the court’s founding instruments; the Rome Statue,[12] the Rules of Procedure and Evidence of the court, the Regulations of the Court as well as associated legal texts. The International Criminal Court holds strongly to the cardinal International Criminal Law principle that an accused is presumed innocent until found guilty during a regular and impartial trial wherein he shall be guaranteed all necessary means to his defense.[13]

Article 66(1) of the Rome Statue replicates the above principle. The International Criminal Court was formed with a mandate and purpose to try international crimes in

fairness so as to dispense formal and equitable justice.[14] In so doing, the court is expected to inter alia, effectively guarantee the rights of accused persons standing trial before it because a strong and powerful defense is a vital component of a fair trial. This leads us to ask the question; how effective are the rights of accused persons protected, promoted and guaranteed by the International Criminal Court? The research assumes that the rights of accused persons are not fully protected and guaranteed by the International Criminal Court

. To ascertain this hypothesis, the research will use the doctrinal methods of research to carry out its findings.

• Statement of the Problem

An accused person (suspect and defendant inclusive) is a principal party in the criminal trial. He is the person that has been indicted by the Prosecutor to appear before the court or tribunal to answer a charge or charges against him. It is against him that the prosecutor has to discharge the burden of proof beyond reasonable doubts so s to secure a conviction. For that to be done the accused has to be well equipped so as to effectively defend himself since a strong and vibrant defense is a vital component for the dispensation and attainment of formal justice. The International Criminal Court is quite aware of this crucial fact. That is why the accused person before the court is granted a good number of fundamental rights that are legally enforceable when violated. These legal and legitimate rights run through the entire judicial process from indictment, arrest, investigation, through the trial, conviction, sentencing and appeal. The importance of the rights of accused persons in the International Criminal Law is to avoid arbitrary, summary and unjust proceedings that would occasion a miscarriage of justice. If the rights of the accused persons are not justiciable, it will jeopardize the International Criminal Law and the International Criminal Justice System.

The founding instruments of the International Criminal Court, the Rules of Procedure and Evidence before the court, as well as other legal texts and associated sources assert the strict respect of the rights of accused persons during the entire judicial process. Most of these rights are provided and regulated by article 67 of the Rome Statute captioned “Rights of Accused”. Many more are found in articles 54, 60(4), 61(1), 61(3), 61(7)(b)(c), 61(9)(10), 63, 64(2), 64(6)(c), 64(7), 64(8), 65(1) and 66(1). Article 21 of same sanctions the scope of the sources of law applicable to the court’s jurisdiction and is very instructive. For the International Criminal Court to meet its purpose and mandate, it must see into it that these rights are justiciable. That is to say they are legally enforceable and not mere aspirations. That was the position of the law in the Prosecution V Mathieu Ngudjolo Chui.[15]

Apart from the founding instruments of the International Criminal Court, its Rules of Evidence and Procedure, we equally have international bodies and instruments as well as International Organizations that clearly provide and regulate the rights of accused persons during the trial process.

They include the United Nations Charter, the Universal Declaration of Human Rights (articles 10 and 11 thereof). The International Covenant on Civil and Political Rights (article 14 thereof), the UN Convention on the Rights of the Child (article 40 thereof),[16] the UN Convention on the Rights of Persons with Disabilities (article 13), the International Covenant on Economic, Social and Cultural rights[17] that championed the abolition of the death penalty which would have constituted a major threat to the accused’s right to life, the UN Convention on the Elimination of all forms of Racial Discrimination, the UN Convention for the Elimination of all forms of Discrimination against Women, the European Convention on Human Right (ECHR article 6)that provides and regulates a wide range of rights of accused such as the right to life, the right to a fair trial, the right to be heard, the right to be represented by counsel, the right to presumption of innocence etc, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, the UN Convention against Torture that decries cruel degrading and inhuman treatment of accused persons worldwide. The International Criminal Court is motivated and inspired by the spirit of Human Rights Law in these international bodies and institutions as they are emphatic on the rights of the accused persons and their justiciability during the trial process. We equally have motivations from courts and tribunals like the European Court of Human Rights, the Inter-American Court of Human Rights, the African Court of human Rights, the International Criminal Tribunal for former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone that have in their precedent motivated the justiciability of the rights of the accused persons.

 The course of time has raised salient concerns pertaining to the justiciability of the rights of accused persons under the International Criminal Court as instances of unfairness, prolong trials, prolong detention, acquittal and discharge after prolong detention and hearing have been occasioned. These occurrences have cast doubts on the justiciability of the rights of accused persons and how redress could be sought when the rights of accused are violated under the International Criminal Court.            

• Research Question
  • Main research Question

How justiciable are the rights of accused persons under the International Criminal Court?

• Specific Question

• What are the guarantees for the justiciability of the rights of accused persons under the International Criminal Court?
• What are the mechanisms aimed at ensuring the justiciability of the rights of accused persons?
• What are the limits to justiciability of the rights of accused persons under the International Criminal Court?
• What can be done to ensure effective justiciability of the rights of accused persons?
  • Research Hypothesis

This research assumes that, the rights of accused persons are not effectively justiciable under the International Criminal Court.

• Objectives of the Study
  • Main Objective

To critically examine the justiciability of the rights of accused persons under the International Criminal Court.

• Specific Objectives

• To examine the guarantees for the justiciability of the rights of accused persons under the International Criminal Court.
• To examine the mechanisms aimed at ensuring the justiciability of the rights of accused persons under the International Criminal Court.
• To discuss the limits to the justiciability to the rights of accused persons under the International Criminal Court.
• To propose recommendations to ensure effective justiciability of the rights of the accused persons.

                           [1]The Nuremberg Trials: https://museums.nuermberg.de, https://www.ebsco.com, https://encyclopedia.ushmn.org, https://en.wikipedia.org, https://www.nationalww2museum.org

[2]Tokyo Trials:https://www.nationalww2museum.org,https://www.netflix.com, https://en.wikipedia.org.

[3] The International Criminal Tribunal for former Yugoslavia: https://www.icty.org, https://www.justiceinfo.net, https://hmd.org.uk, https://2009-2017.state.gov.

[4] The International Criminal Tribunal for Rwanda: https://unictr.irmct.org, https://en.wikipedia.org, https://legal.un.org, https://2009-2017.state.gov, https://rscsl.org, https://hybridjustice.com, https://www.legal.tools.org, https://2001-2009.state.gov, https://iaca.journal.org, https://www.hrw.org, https://www.asf.be.

[5] Mark Tran, Background: International Criminal Court, THE GUIDIAN (Jan. 26, 2019) https://www.theguidian.com/world/2009/Jan.26/international-criminal-court[https://perma.cc/6LPM-F226]

[6] The Extra-Ordinary Chambers in the Court of Cambodia: https://www.eccc.gov.kh, https://eja.org, https://en.wikipedia.org, https://www.toaep.org, https://www.hurights.or.jp, https://casebook.icrc.org, https://www.jstor.org, https://digitallibrary.un.org, https://hmd.org.uk, https://issuelab.org.

[7] COALITION FOR THE INTERNATIONAL CRIMINAL COURT http//icc now.org/?mod=icc history [https://perma.cc/SD S8-X5KF]

[8] Stuart Ford, The impact of the Ad Hoc Tribunals on the International Criminal Court in THE LEGACY OF AD HOC TRIBUNALS IN INTERNATIONAL CRIMINAL LAW  307 – 09 (Milena Sterio & Michael P. Scharf:2019).

[9] The United Nations Charter: https://www.un.org

[10] BLACK’S LAW DICTIONARY 12^th Edition

[11] The International Criminal Court: https://www.icc-cpi.int, htttps://en.wikipedia.org, https://www.hrw.org, https://legal.un.org.

[12] The Rome Statute of the International Criminal Court, the Rules of Evidence and Procedure before the court

[13] Robert et al: An Introduction to International Criminal Law and Procedure. 5^th Edition, Cambridge University Press 2024

[14] M. Cherif Bassiouni: Introduction to International Criminal Law 2^nd Edition 2012 “Martinus Nijhoff Publisher”

[15] The Prosecutor V Mathieu Ngudjolo Chui. case N^o ICC 01/04-02/12

[16] The Convention on the Rights of the Child: https://www.ohchr.org

[17] International Covenant on Economic, Social and Cultural Rights: https://www.ohchr.org