The Role and Extent of a Proportionality Analysis in the Judicial Assessment of Human Rights Limitations within International Criminal Proceedings

Copyright

Table of Contents

Acknowledgements

Abbreviations

Table of cases and statutes

Introduction: Purpose, Methodology and Scope of the Monograph

1 Purpose of the Monograph

2 Underlying Methodology

3 Scope of the Monograph

4 Outline of the Chapters

I: Conceptual Tools for Assessing Limitations upon the Exercise of Human Rights

1 Introduction

2 Justifications of Interferences with Human Rights

2.1 Internal and External Theories of Rights

2.2 Internal and External Limits on Rights

2.3 Techniques for the Resolution of Conflicts of Values

2.3.1 Conflict between Rights and Public Interest Grounds

2.3.1.1 Theory of Rights as ‘Trumps’

2.3.1.2 End-Test (Legitimate Objective) and Broad Proportionality Analysis (Suitability, Less Restrictive Means and Balancing Tests)

2.3.1.3 End-Test and Two-Prong Proportionality Model (Suitability and Less Restrictive Means Tests)

2.3.1.4 End-Test and One-Prong Proportionality Analysis (Balancing)

2.3.1.5 End-Test and Two-Prong Proportionality Model (Suitability and Balancing Tests)

2.3.1.6 End-Test and Two-Prong Proportionality Model (Less Restrictive Means and Balancing Tests)

2.3.1.7 ‘Priority to Rights’ Principle and Defijinitional Balancing

2.3.2 Conflict of Rights

2.3.2.1 Terminology

2.3.2.2 Interpretative Model: Determination of the Scope of the Conflicting Human Rights

2.3.2.3 Transposition of the End-Test and the Broad Proportionality Analysis to Conflict of Rights Situations

2.3.2.4 Hierarchy of Human Rights Principle

2.3.2.5 Mechanism of ‘Practical Concordance’

2.3.3 Neighbouring Concepts to Proportionality that are Relevant to Both Types of Conflicts of Values

2.3.3.1 Role of the Legality Principle

2.3.3.2 The ‘Essence’ of Rights Doctrine

3 Conclusion

II: Institutional and Regulatory Context Underpinning the International Criminal Courts’ Human Rights Limitation Analyses

1 Legal Basis for Human Rights Enforcement

1.1 The ICTY and ICTR

1.2 The ICC

2 Procedural Guarantees at the Investigation and Interrogation Stages

2.1 The ICTY and ICTR

2.2 The ICC

3 The Rights of the Accused

3.1 The ICTY and ICTR

3.2 The ICC

3.3 Common Considerations: Features of the Right to a Fair Trial

4 Victims’ Participation Rights

5 Substantive Human Rights

5.1 The ICTY and ICTR

5.2 The ICC

6 Absence of Derogation Clause and Presence of Limitation and Qualification Clauses within International Criminal Procedural Law

6.1 The ICTY and ICTR

6.1.1 General Framework

6.1.2 Presence of a Statutory Limitation Clause

6.1.3 Presence of Various Qualifijication Clauses

6.2 The ICC

6.2.1 General Framework

6.2.2 Presence of a Statutory Limitation Clause

6.2.3 Presence of Various Qualifijication Clauses

6.3 Commonalities

7 Role of the Legality Principle under International Criminal Procedural Law and International Criminal Law

8 Structural Difficulties in Drawing on a Hierarchy of Human Rights Model for Resolving Conflicts of Rights

9 Methods of Interpretation under International Criminal Procedural Law and International Criminal Law

10 Conclusion

III: Formation of a Generic Justificatory Framework for Assessing External Limits upon any Fundamental Right or Defence Right

1 The ICTY and ICTR

2 The ICC

3 Conclusion

IV: Implied External Limits on the Right to Self-Representation through the Assignment of Defence Counsel and of Standby Counsel

1 Introduction

2 Conceptions of the Right to Self-Representation

3 Qualification Clauses Affecting the Exercise of the Right to Self-Representation

3.1 The ICTY and ICTR

3.2 The ICC

4 Emergence of a Justificatory Framework for Reviewing Interferences with the Right to Self-Representation

4.1 Ad Hoc Tribunals’ Case-Law Prior to the Milošević Appeals Representation Decision

4.1.1 The ICTR’s Reliance on the Concepts of ‘Inherent Powers’ and ‘Waiver of Rights’ as Legal Bases and on ‘The Interests of Justice’ as an End-Test

4.1.2 The ICTY’s Limitation Process Based on Various End-Tests

4.2 The Milošević Appeals Representation Decision and the Introduction of a Proportionality Analysis

4.3 ICTR’s Case-Law Subsequent to the Milošević Appeals Representation Decision

4.4 ICTY’s Case-Law Subsequent to the Milošević Appeals Representation Decision but Pre-dating the Insertion of r 45 ter Qualification Clause into the ICTY Rules

4.4.1 Overview of Judicial Trends

4.4.2 Status of the Right to Self-Representation as a ‘Presumptive’ and as a Qualified Defence Right

4.4.3 The Emphasis on a Particular Aspect of the ‘Interests of Justice’ as an End-Test, Namely the Need to End a Substantial and Persistent Obstructive Behavior

4.4.4 The Inspiration Drawn from ECHR Authorities Unrelated to the Right to Self-Representation and the Distanciation from the HRC’s Case-Law

4.4.5 The Focus on the Less Restrictive Means Test in the Tribunal’s Proportionality Analysis

4.4.6 Different Levels of Judicial Scrutiny in the Tribunal’s Proportionality Analysis

4.4.7 ‘Proceduralisation’ of the Justificatory Framework

4.4.8 Extension of the Scope of the Right to Self- Representation and of its Corresponding Justificatory Framework to Appeals Proceedings

4.4.9 Increasing Deference to the Accused’s Preferences

4.4.10 Extension of the ‘Interests of Justice’ Criterion to Victim and Witness Protection

4.4.11 Progressive Judicial Fatigue in the Tribunal’s Review of International Human Rights Authorities

4.5 ICTY’s Case-Law Subsequent to the Insertion of a Qualification Clause into the ICTY Rules

5 Elevation of the ‘Interests of Justice’ to an Overarching Legitimate Objective and the Presence of a Mixed Conflict of Values

5.1 Manifestation of the Underlying Conflict of Rights

5.2 Manifestation of the Underlying Conflict between a Right and a Public Interest Ground

6 Recognition of a Means-Test

6.1 Suitability Test

6.2 Less Restrictive Means Test

7 Mechanism of ‘Practical Concordance’

8 Recognition of a Strict Proportionality Requirement

9 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective

10 Adoption of a Teleological Method of Interpretation

11 Confrontation of Specific Justificatory Criteria with Generic Justificatory Criteria

12 Influence of International Human Rights Law

13 Conclusion

V: Implied External Limits on the Right to Cross-Examination through Absolute Witness Anonymity and Rolling Disclosure Measures

1 Introduction

2 Terminology

3 Impact of the Pre-existing Qualification Clauses Affecting the Right to Cross-Examination on the Judicial Admission of Absolut

3.1 The ICTY and ICTR

3.2 The ICC

4 Emergence of a Justificatory Framework for Reviewing Implied External Limits on the Accused’s Right to Cross-Examination

4.1 The ICTY and the Conditional Admission of Absolute Anonymity

4.1.1 The Tadić Protective Measures Decision

4.1.2 Reinforcement of the Conditions Laid Down in the Tadić Protective Measures Decision

4.1.3 Relaxation of the Conditions Set Forth in the Tadić Protective Measures Decision

4.1.4 Progressive Retreat from the Tadić Protective Measures Decision

4.2 The ICTY’s Judicial Admission of an Intermediary Form of Implied External Limit on the Accused’s Right to Cross- Examination

4.3 The ICTR’s Judicial Admission of Implied External Limits on the Accused’s Right to Cross-Examination

4.3.1 Absence of Principled Position on the Validity of Absolute Anonymity Measures

4.3.2 The Judicial Endorsement of a Rolling Disclosure Mechanism

4.4 The ICC’s Judicial Admission of Implied External Limits on the Accused’s Right to Cross-Examination

4.4.1 Absence of Principled Position on the Validity of Absolute Anonymity Measures

4.4.2 Requests for Victim Anonymity

4.4.3 The Judicial Endorsement of a Rolling Disclosure Mechanism

5 The Legitimate Objective Requirement and the Presence of a Mixed Conflict of Values

5.1 Manifestation of the Underlying Conflict of Rights

5.2 Manifestation of a Conflict between a Human Right and a Public Interest Ground

6 Recognition of a Means-Test

6.1 Suitability Test

6.1.1 Absolute Anonymity Case-Law

6.1.2 Rolling Disclosure Case-Law

6.2 Less Restrictive Means Test

6.2.1 Absolute Anonymity Case-Law

6.2.2 Rolling Disclosure Case-Law

7 Mechanism of ‘Practical Concordance’

7.1 Absolute Anonymity Case-Law

7.2 Rolling Disclosure Case-Law

8 Recognition of a Strict Proportionality Requirement

8.1 Absolute Anonymity Case-Law

8.2 Rolling Disclosure Case-Law

9 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective

10 Adoption of a Teleological Method of Interpretation

10.1 Absolute Anonymity Case-Law

10.2 Rolling Disclosure Case-Law

11 Legal Uncertainty Generated by the Multiplicity of Justificatory Criteria

11.1 Absolute Anonymity Case-Law

11.2 Rolling Disclosure Case-Law

12 Influence of International Human Rights Law

12.1 Absolute Anonymity Case-Law

12.2 Rolling Disclosure Case-Law

13 Conclusion

VI: Implied External Limits upon the Accused’s Rights to Effective Participation in his Trial and to be Presumed Innocent

1 Introduction

2 Regulatory Framework

2.1 The Right to Efffective Participation in One’s Own Trial

2.2 The Presumption of Innocence

3 Justificatory Framework

3.1 The Right to Efffective Participation in one’s own Trial

3.2 The Presumption of Innocence

3.3 Overall Assessment

4 Mechanism of ‘Practical Concordance’

5 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective

6 Confrontation of Specific Justificatory Criteria with Generic Justificatory Criteria

7 Influence of International Human Rights Law

8 Conclusion

VII: Incidental Implied External Limits Placed upon Substantive Human Rights: The Rights to Freedom of Expression and to Privacy

1 Introduction

2 Emergence of a Justificatory Framework

2.1 Direct and Public Incitement to Commit Genocide

2.2 Contempt of Court

2.3 Restrictions on the Accused’s Conditions of Detention

2.4Inadmissibility of Evidence Obtained in Breach of Human Rights

2.5 War Correspondents’ Qualified Testimonial Privilege

3 Outline of the Specific Justificatory Criteria and Influence of International Human Rights Law

3.1 Justificatory Criteria under International Human Rights Law

3.1.1 Universal Declaration of Human Rights

3.1.2 International Covenant on Civil and Political Rights

3.1.3 European Convention on Human Rights

3.2 Direct and Public Incitement to Commit Genocide

3.3 Contempt Procedure

3.4 Restrictions on the Detainees’ Communication with the Media

3.5 Inadmissibility of Evidence Obtained in Breach of the Right to Privacy

3.6 War Correspondents’ Qualified Testimonial Privilege

4 Mechanism of ‘Practical Concordance’

5 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective

6 Confrontation of Specific Justificatory Criteria with Generic Justificatory Criteria

7 Conclusion

VIII: Implied Internal Limit Placed on the Right of Silence and Judicial Refusal to Place Any Implied Limits on the Right Not to Self-Incriminate

1 Introduction

2 Regulatory Framework

2.1 The ICTY and ICTR

2.2 The ICC

2.3 Common Considerations

3 Evolution of the International Criminal Procedural Case-Law

3.1 The ICTY and ICTR

3.1.1 Judicial Confirmation of the Express Internal Limit Afffecting the Witness’ Right not to Self-incriminate

3.1.2 Judicial Extension of the Right not to Self-incriminate to Situations Involving Psychological Coercion

3.1.3 Judicial Refusal to Place Any Implied Limit upon the Rights of Silence and Not to Self-incriminate

3.1.4 Judicial Clarification of the Implications of and of the Conditions Attached to the Waiver of the Rights of Silence and not to Self-incriminate

3.1.5 Judicial Admission of an Implied Internal Limit upon the Right of Silence

3.1.6 Statu quo in the limitation process of the right of silence

3.2 The ICC

4 Influence of International Human Rights Law

5 Conclusion

General Conclusions

1 Overview of Implied External Limits upon Human Rights Validated or Endorsed by International Criminal Courts

2 Legal Uncertainty in the International Criminal Courts’ Judicial Treatment of Human Rights Limitations

2.1 Notion of Legal Uncertainty in a Judicial Context

2.2 Legal Uncertainty in the Ad Hoc Tribunals’ Judicial Practices

2.2.1 The Coexistence of Generic and of Specific Justificatory Criteria

2.2.2 The Multiplicity of and Lack of Clarity in the Content of Specific Justificatory Criteria

2.2.3 The Normative Status Attached to Fair Trial Rights

2.2.4 Inconsistent Reliance on International Human Rights Law

2.2.5 Inconsistency in the Choice of the Interpretative Method

2.3 Legal Uncertainty in the ICC’s Judicial Practice

2.3.1 External Limitations on the Right to Self-Representation

2.3.2 Absolute Anonymity and Rolling Disclosure Mechanism

2.4 Ways to Provide More Legal Certainty in the International Criminal Courts’ Human Rights Case-Law

2.4.1 Substantive Solutions

2.4.1.1 Mutually Compatible Justificatory Criteria and Rationalization of the Various Justificatory Analyses

2.4.1.2 Coherent Normative Choices in the Conception of Human Rights

2.4.1.3 More Consistency in the Choice of the Interpretative Method

2.4.2 Institutional Solutions

2.4.2.1 Appointment of a Permanent Amicus Curiae or of a Permanent Legal Advisor

2.4.2.2 Establishment of a Specialized Human Rights Unit

2.4.2.3 Request for an Advisory Opinion from the International Court of Justice

2.4.2.4 Request for an Advisory Opinion from an International Human Rights Monitoring Body

3 Legal Bases for Placing Implied External Limits upon Those Human Rights Relevant to International Criminal Proceedings

4 Final Considerations

Bibliography

Index