Neither Here nor There

Oxford University Press eBooks, pp. 67–88

Abstract

Abstract This chapter argues that international tribunals minimize the need to accurately determine the defendant’s guilt by routinely ‘balancing away’ defence rights vis-à-vis other values that are deemed more important, such as ‘combating impunity’ or acknowledging the suffering of the victims. It identifies four different types of such balancing: foundational, procedural, institutional, and systemic. Foundational balancing concerns the (mis)use of the sources of international law. Procedural balancing primarily involves de-emphasizing the importance of defence rights by elevating the (assumed) rights of other actors in the system. Institutional balancing relates to the structural position of the defence at international tribunals. And systemic balancing focuses on how the collective nature of international crimes requires international tribunals to rely on substantive doctrines that make it more difficult to accurately assess the criminal responsibility of individual defendants. Those four types of balancing, this chapter suggests, relegate defendants to the margins of the trial process, significantly increasing the likelihood of unjust verdicts.

Authors 1

1. Dov Jacobs corresponding Aachen Grotius Centre

   Leiden University

   Affiliation as printed

   Grotius Centre, Leiden University