The Right of an Accused to a Fair Trial: The Independence of the Impartiality of the International Criminal Courts

Abstract

It is a sacrosanct principle of the due process of law that the right of the accused to a fair trial should be observed. A condition precedent to that requirement is that he should be tried by an independent and impartial tribunal. Whilst the concepts of judicial independence and impartiality have been explored extensively in national jurisdictions, they have not been examined vis-à-vis the international arena. The increase in the number of international criminal tribunals corresponded with an increase in the size of the international judiciary. It is therefore vital that there remains in place, a body of uniformly applicable standards of international judicial independence and impartiality which would provide guidelines to international practice.

The research undertaken raises interesting questions, such as the sources of these principles, the mechanism of their application in the national and international arenas, in particular to international criminal courts. It explores the relationships between the national and international standards and concludes that standards of independence and impartiality are applicable as of right to international criminal proceedings and validation through international human rights instruments, statutes and jurisprudence of the international criminal tribunals is not necessary.

A comparative study has been made with national and international standards of fair trial, independence and impartiality. It is the premise of this thesis that the latter two concepts are necessary for the guarantee of the fair trial right. Jurisprudence of regional, national and international courts was explored to support this aim with particular attention focussed on the international criminal tribunal and the permanent international court. Finally, a conclusion is formed on the independence and impartiality of the international judiciary and the efficacy of the international criminal judicial system in ensuring that the right of the accused to receive a fair trial.