The question "Can international criminal courts provide defendants with fair trials?" is one that has barely been posed, let alone answered. The realm of international criminal justice is distinguished from domestic criminal justice not simply because accountability and sovereignty weigh heavier in this context, but also because of the absence of an effective counterweight to check these interests. One approach to the fair trial issue focuses on the rights delineated in the tribunals' statutes, rules of procedure and evidence, and case law. A second approach to the problem of fair trials asks, instead, whether these international courts have the independence and coercive powers necessary to ensure fair trials, regardless of the sufficiency of the paper rights accorded the accused in the tribunals' statutes. It is this second crucial, but often overlooked, aspect of the fair trial problem that this paper addresses.
The disjunction between authority and control, common to international institutions, is too great to allow for consistently fair criminal adjudication. Whether the structural limitations on the tribunals are fatal, or whether their detrimental effects can be abated, remains to be seen. Part I of this Article introduces the problem. Part II of this Article identifies the basic fair trial rights at risk. Part III begins to explain why this may be so by describing how international criminal tribunals obtain the essentials of their existence through state cooperation. Parts IV and V explore how this cooperation regime has affected the ability of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda to provide defendants with fair trials. Part VI evaluates whether the International Criminal Court is an improvement and outlines a number of possible ways to counter the fair-trial-limiting tendencies that plague international tribunals.
Jacob Katz Cogan, International Criminal Courts and Fair Trials: Difficulties and Prospects, 27 Yale J. Int'l L. 111 (2002).