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This program was co-sponsored by International Courts and Tribunals Interest Group, Human Rights Interest Group, Transitional Justice and Rule of Law Interest Group, and the International Criminal Law Interest Group. The panel was moderated by Michelle Brady (Rule of Law Unit, Office for Democratic Institutions, Organization for Security and Cooperation in Europe). Mark Ellis (International Bar Association), Marie O’Leary (Office of Public Counsel for Defense, International Criminal Court), Kimberly Prost (Chef du Cabinet to the President, International Criminal Court) and Michele Roberts (National Basketball Players’ Association) were the panelists.
The panel explored the right to a fair trial in the United States judicial system as well as how this right is actualized in an international context. Michele Roberts shared observations of how fair trials in the United States are. On paper, Ms. Roberts noted, U.S. courts are “the best on the planet.” Probable cause, the right to a speedy trial, the right to effective counsel, presumption of innocence, and the burden of proof being on the government are all constitutional protections that, on paper, guarantee the right to a fair trial.
In practice, however, these rights are not always actualized. For example, the right to a speedy trial does not always mean a defendant will have his or her day in court expeditiously. Ms. Roberts stated, “There are not always enough judicial bodies to try the number of bodies [in the criminal justice system].” Ms. Roberts’ overall perspective was that there is a struggle outside of the United States to have protections codified. This effort should not stop at codification, though. The practical problems relating to implementation must also be addressed.
Marie O’Leary characterized the presumption of innocence as the “cornerstone” of the right to a fair trial. It’s seen in Article 66 of the Rome Statute and has a long history extending to biblical times. Giving the example of the Kenyan defendants before the International Criminal Court, Ms. O’Leary referenced how the media described the cases as having “collapsed.” This description presumed the case was solid and fell apart primarily because of non-cooperation. It should be considered, though, that the case may have fallen apart because of a lack of evidence. Ms. O’Leary also highlighted the need for all nations to support human rights protections for defendants given human rights protections are at the heart of the body of International Law and without them, procedural and substantive gains may prove insufficient.
Kimberly Prost began her comments by noting the International Criminal Court is not a human rights court. The Rome Statute created a system to address grievances as opposed to a “super court.” She highlighted that national systems, even with all their foibles, have primacy. She then went on to address that given there are many legal traditions that comprise international law, it also may be difficult to determine exactly what constitutes a fair trial. The biggest challenge Prost identified was the differing views amongst judges of what constitutes zealous representation. She closed with, “Everyone has to leave their traditions at the courtroom door. We have to develop a cohesive international law tradition.”
The first audience question asked whether it would be better to focus on emboldening domestic courts so fair trials can be carried out at the national level. This question was asked with African judicial systems in mind. Michael’s response was that while this question was in line with the concept of positive complementarity, it creates a North-South divide that may not be helpful. Another audience question dealt with whether victim’s counsel at the International Criminal Court could have a negative impact on defendants’ rights being protected. Panelists stated the importance of having victim’s counsel but the need for judges to be diligent in respecting defendants’ right to a fair trial in this system.
Overall, the panelists provided a lively discussion on what the right to a fair trial entails domestically and internationally. Examples of the difficulty in actualizing these rights for defendants were addressed. The call to continue to advocate for defendants’ right to a fair trial regardless of public perception were fully discussed by panelists and the audience.
Tamara V. Lewis is a BASIL and International Law Fellow.