Although fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings before the courts of the seat of arbitration on the grounds of unequal treatment, and before human rights bodies such as the European Court of Human Rights. Moreover, it has always been difficult to reconcile contractual freedom and the advantages offered by arbitration with equal treatment and fair trial claims. This article demonstrates the existence of a set of general principles concerning the meaning and content of equal treatment, which are consistent with its commercial (and civil procedure) and human rights dimensions. The basis of this conclusion is Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as consistently interpreted and adapted by local laws and judgments, arbitral statutes and determinations by the European Court of Human Rights.

Over the past two decades, there have been significant legal developments aimed at securing and enhancing the participation of vulnerable witnesses in criminal trials. Yet, there remains relatively little regard for the fact that many defendants, including those who are not deemed to be vulnerable, are unable to participate in criminal proceedings in a meaningful sense. This paper aims to address two questions. First, why should defendants have participatory rights and be capable of meaningful participation in criminal proceedings? Second, why has it proven so difficult to attain meaningful participation of defendants? It is contended that barriers to meaningful communication between the defendant and the court could be dismantled without great difficulty, but continue to exist because due regard is not given to the normative rationales for participatory rights and defendant participation.

The retention and use of the death penalty, especially the mandatory death penalty, continues to be an issue of controversy and concern in Africa and elsewhere. Accordingly, African states are slowly but increasingly moving away from the death penalty, with many of them abolishing it either de facto or de jure, or limiting its use, with some finding its mandatory application to be unlawful. This article considers the recent Supreme Court of Kenya decision that declared the mandatory nature of the death penalty as provided for under the country's Penal Code to be unconstitutional. However, it argues that, while declaring the mandatory death penalty to be unconstitutional is commendable and a promising step on the path towards the abolition of the death penalty, the death penalty remains available as a punishment, with serious human rights implications if procedural safeguards are not followed.

The Monsanto International Tribunal, a creation of civil society, sat at The Hague in October 2016. In its “Advisory Opinion” of 18 April 2017, this popular tribunal assessed Monsanto’s conduct under international law with regard to the right to a healthy environment, the right to food, the right to health, scientific freedom, as well as war crimes and ecocide. This article analyzes that opinion and situates it in its international legal context. Given that Monsanto did not participate in the proceedings, the question of a fair trial — which can have a decisive impact on the content of the opinion — is the first issue examined. In regard to the opinion itself, the findings are measured: the Tribunal concluded that Monsanto clearly violated human rights, but not international criminal law under existing legal standards. Given that, the Tribunal suggested two measures to redress the imbalance of the international legal order: on the one hand, to establish a hierarchy in favour of human rights and, on the other hand, to make companies direct bearers of international obligations deriving from these rights.

How to understand and deal with the principle of mutual trust, its emanations, interpretations, and imperatives has in recent years become one of the central and most critical issues in the development of the Area of Freedom Security and Justice (AFSJ). Civil justice may be the dark horse with respect to mutual trust among the policy areas of the AFSJ in the sense that it may show useful but hitherto hidden possibilities and have an un-tipped winning strategy. In particular, the balancing safeguards in legislation, the importance of which have been confirmed in case law, are important to ensure the fundamental right to a fair trial. However, that does not mean that mutual trust does not pose challenges in the context of civil justice. Hence, it remains important to focus on how—normatively, and by which regulatory means—to support mutual trust as well as how to balance, and perhaps limit, its implementation in order to enhance its legitimacy. In addition, the recent pressures towards harmonisation need to be carefully analysed.

The use of proportionality and balancing by the European Court of Human Rights (ECtHR) is inconsistent and does not provide clear guidelines from which policies can be drafted that could strike a fair balance between individual rights and public interests while not impairing the essence of the rights at stake. While ad hoc and unprincipled balancing may be justified on the theoretical level, on the practical level a policymaker seeking to understand which infringements constitute clear violations of the European Convention on Human Rights (ECHR) is left confused. This article adds clarity to this state of bewilderment by breaking down several aspects of the ECHR rights to a fair trial into clear-cut ‘red lines’, or minimum thresholds of protection. Overstepping those could result in a violation of the right concerned. Identifying these red lines is intended to assist legislators and policymakers in drafting laws and policies that conform with the obligations of their states under the ECHR, and to instruct policymakers outside the member states of the Council of Europe. Because of its unique characteristics, as well as the volume and breadth of its case law, the jurisprudence of the ECtHR can be a lodestone for the consolidation of an international human rights community based on shared values. The unique contribution of this article is the assessment of ECtHR jurisprudence not only on its own merits, but also in comparison with the jurisprudence of other international courts.

This article introduces some quantitative and qualitative analysis on the use of written witness statements in lieu of oral testimony at trial to assess in practice the impact of the rules on the admissibility of written witness testimony before the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone. It traces pieces of evidence admitted under the newer, more liberal, rules on written witness testimony from admissibility to judgment, to establish what impact, if any, these rules have had in practice and whether the critique that such rules might jeopardize fair-trial standards has been realized. The analysis illustrates that the newer rules on admissibility are used with relative infrequency in some tribunals, but that the admission of such statements could raise the question of equality of arms in others, given that the more liberal rules on written statements tend to be used more frequently by the prosecution than by the defence. It will be shown that some chambers have continued to emphasize the importance of oral testimony and have taken a very cautious approach when weighing written testimony, whilst others have suggested that written testimony that was not subject to full cross-examination should not, in principle, be given less weight than oral testimony. The ‘totality of the evidence’ approach in weighing the evidence will be analysed from a practical standpoint, and it will be shown that recent Appeals Chamber jurisprudence suggests that trial chambers may need to take a more particularized approach to pieces of evidence in the future.

This article examines the legal characterization of the full-face veil worn by female users of Canadian government services. Considering how various Western states perceive full-face veils, we suggest that legally defining this piece of clothing as a “religious object” is key to guaranteeing freedom of conscience and religion by the courts. By drawing on constitutional law and legal theory, we examine the legal treatment of this religious object within the analytical framework of the Supreme Court of Canada in the NS case.

The transfer of intermediate and lower rank indictees from the International Criminal Tribunals for the Former Yugoslavia and Rwanda to competent national jurisdictions is a central component of the so-called completion strategy. When the ad hoc Tribunals contemplate the referral of a case, however, they find themselves hemmed in from two sides. On the one hand, a decision to refer a case will appear justified only if there are strong reasons to believe that national proceedings will be conducted in accordance with international due process standards. On the other hand, the risk that national authorities deny or minimise the responsibility of transferred indictees must be avoided. These two exigencies were given positive expression in the Rules of Procedure and Evidence of both Tribunals, under Rule 11bis. This paves the way for a comparison between Rule 11bis case law and human rights jurisprudence concerning potential violations. For the purposes of this article, comparative analysis provides the basis for asserting that, when the ad hoc Tribunals decide whether or not to refer a case under Rule 11bis, they are bound by human rights standards which go beyond the right to receive a fair trial and are stricter than those normally applicable to a state which is about to extradite or expel an individual.

This article discusses the possibility of the International Criminal Court's taking domestic investigations and prosecutions of crimes within its jurisdiction where states are unwilling genuinely to investigate or prosecute such crimes. In particular sustaining the admissibility of a case on the basis of the lack of impartiality or independence of national proceedings is subject to analysis. Whereas the lack of this due process guarantee is expressly considered in the Rome Statute as a ground for admissibility where it is meant to shield a person from criminal responsibility, it is not equally clear that a case can be declared admissible where domestic proceedings are or were unfairly conducted to the prejudice of the person concerned. On an analysis of the wording of the Statute, its object and purpose, and its ‘preparatory works’, the possibility of the Court's taking on domestic proceedings on the basis of their being intentionally unfair to the prejudice of a suspect or accused does not appear to have a strong legal basis. However, recent developments at the ICTY and the ICTR show the importance of such a possibility to the fulfilment of the mission entrusted to the ad hoc tribunals. This circumstance brings about crucial questions about the role of the International Criminal Court in the enforcement of international justice and its contribution to international peace and security.

In July 2001 the Human Rights Committee of the International Covenant on Civil and Political Rights issued a General Comment on the possibility of member states derogating from human rights in case of emergency. Basing its analysis on the issue of limitation of fair trial rights during a state of emergency, this article suggests a critical analysis of the reasoning, rather than the conclusions, of the Committee. Expanding arguments developed by monitoring bodies of the American and European Conventions on Human Rights, the author suggests alternative reasoning according to which the right to a fair trial is inalienable. She argues in particular that this right constitutes a guarantee necessary to the effective enjoyment of all human rights, the preservation of legality in a democratic society, and the effectiveness of the principle of separation of powers.

The success of the International Criminal Tribunal of the former Yugoslavia in fulfilling its mandate turns on the justness of the decisions it renders. To ensure that its judgements are accepted by the international community as just decisions the Tribunal is directed by the Report of the Secretary-General to adhere fully in its criminal proceedings to internationally recognized human rights standards. This directive suggests that the Tribunal should adhere to the interpretation of human rights principles as understood by other jurisdictions. However, in some instances the Tribunal has, by virtue of its statutory requirements, been unable to follow those standards as understood by other jurisdictions and it has justifiably adopted a contextual approach to the application of certain human rights principles to its criminal proceedings. In other instances, however, the Tribunal has purported to adhere fully to certain human rights principles as adopted by other jurisdictions. This has occurred with respect to the Tribunal's adherence to the principle of equality of arms. In this instance, however, the Tribunal's purported adherence to that principle has led to a situation where that adherence has had a negative effect on the justness of the decisions it has rendered. In the following it is argued that with respect to the application of the principle of equality of arms the Tribunal should adopt a contextual approach if the decisions it renders are to be just decisions and are to have the appearance of being just decisions.