The right to a fair appeal in international criminal law

The Right to a Fair Appeal in International Criminal Law – Layman’s Summary

A criminal trial does not end after the first judgment of a court. A person is only finally found guilty or innocent after one or more appeals. Appeals thus have an important place in the criminal justice system. However, scholarship and legal practice have mainly focused on other phases of criminal trials and appeals have received relatively limited attention.

The main question of this study is how appeals before the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda should be organised to make sure that they are fair. To answer this question, the standards regarding appeals set by human rights law have been studied. It has also been examined how the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda have carried out their appeals.

This study adopts two main conclusions. First, the appeals conducted by the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda mainly meet the standards of human rights law. Second, certain aspects of the appeals conducted by the International Criminal Tribunals for the former Yugoslavia and Rwanda do not comply with these standards (but this conclusion does not currently apply to the International Criminal Court). Two such aspects are the following.

1. Certain judges of these tribunals have passed judgment in: (a) different phases of the same case; or (b) different but related cases on appeal. In such situations, it may appear that these judges lack impartiality.
2. A number of accused tried before these tribunals have first been acquitted by a lower chamber and then convicted by the Appeals Chamber. These persons did not have the right to appeal again. This is in principle allowed. However, the safeguards that apply in such situations have not been sufficiently implemented.

This study proposes recommendations to prevent the same problems regarding appeals to be conducted by the International Criminal Court in the future. The following recommendations are made for the two examples.

1. The rules of the International Criminal Court allow judges to withdraw from cases in which their impartiality is called into doubt. This rule should be applied to judges who consider different but interrelated cases on appeal.
2. The Appeals Chamber of the International Criminal Court may convict a person after he or she has been acquitted by a lower chamber. It does not need to provide a further right to appeal to such a person. However, two safeguards must be respected. First, such a conviction must not be based on charges or facts that were not considered by the lower court. Second, the accused must be allowed to challenge a possible conviction on appeal in an oral hearing.