Despite its centrality to international criminal trials, there is no coherent understanding of fairness. In some respects, this is unsurprising – fairness is a normative question, and so any attempt to measure or assess fairness is ‘a normative judgement’ which will probably be contested. Fairness seems to lack the ability to be quantified, and ‘there are no clear indicators’ of levels of fairness. Nonetheless, this chapter attempts to set out a taxonomy of the factors contributing to the conceptual incoherence of fairness. As Yvonne McDermott notes, fairness questions have been answered in a ‘piecemeal fashion’, and there is a ‘lack of an overarching theory guiding the procedural fairness of trials’, which has resulted in a failure of international criminal law to set the standard for fairness. The present chapter intends to lay out the various perspectives on, and challenges to, fairness in an attempt to provide greater conceptual clarity.

I argue that there is a conceptual incoherence surrounding the concept of fairness, for three main reasons: a conflict over what principles are constitutive of fairness; a conflict over who should be the key beneficiary of fairness in trials; and a conflict around how to ensure fairness in a sui generis procedural system (where there is a lack of agreement around translating the traditional inquisitorial and adversarial approaches to a hybrid system). In other words, there is a lack of shared understanding around what fairness includes, whom fairness is owed to, and how fairness can be assured. In relation to each of these three points, a diversity of opinions shows that there is little coherence regarding what fairness requires. The different approaches on these questions are all related to the links between fairness and rights in the trial setting. I argue that there is a growing disconnect between fairness and the rights of the accused in international criminal trials, which emerges from, and adds further to, the conceptual incoherence of fairness.

A. WHAT PRINCIPLES ARE REQUIRED TO ENSURE FAIRNESS?

Beyond the rights of the accused (which we have already seen to be closely linked to fairness), what else does fairness entail?