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New IBA report reviews mechanisms to prevent and remedy injustice in international justice

The International Bar Association (IBA), within the framework of its program “International Criminal Court and International Criminal Law” (ICC & ICL), has published a new report examining the legal frameworks and practices of international criminal courts and tribunals to remedy international injustice through appeals, retrials, reviews or revisions of judgments and compensation for miscarriages of justice.

The four chapters of the report entitled “Remedying international injustice: appeals, retrials and revisions of judgments in international criminal law” are devoted to four procedural mechanisms aimed at preventing and remedying injustice in international justice.

The document examines how each remedy has evolved and been applied by international criminal courts and tribunals to date, including the permanent International Criminal Court (ICC). Drawing from this analysis, the authors of the paper make detailed recommendations to the ICC to maximise its safeguards. The IBA emphasizes that these guidelines may also be of use for other existing or future courts and tribunals.

The first chapter of the report is devoted to the appeals mechanism – the so-called first line of response to prevent injustice. The authors of the document, having examined more than 25 years of appeals practice in international justice, highlighted a number of problematic issues that the ICC needs to resolve. In particular, it is about the establishing of effective mechanisms so that the Appeals Chamber can remand issues to the original trial chamber, if necessary; ensuring that an acquitted person can be released pending a prosecution appeal; and developing conditions and criteria governing the Appeals Chamber’s discretion to order the remedy of a retrial, reflecting that it is an extraordinary measure.

The second chapter of the report examines the mechanism of retrial. The authors point out that it is essential that the new trial is fair. It should not be conducted as though there had never been a first trial, which could cause prejudice to the accused. It is particularly important that the prosecution is not given a second chance to correct errors that it made in the first trial. The IBA recommends that the ICC considers a range of measures to safeguard the rights of the accused in the possible event that it orders a retrial in the future, including developing criteria for defining the scope of the retrial; developing rules limiting the admission of new evidence by the prosecution; and ensuring victim participation and outreach to affected communities during the retrial.

The option of review of the court decision, which is discussed in the third chapter of the report, provides the possibility that a judgment can be reviewed even following the appeal process, if new information is discovered that indicates an injustice occurred. The researchers compare the procedures for revising verdicts by some international tribunals with the ICC’s revision process, which has yet to be implemented. The authors of the document provide a series of recommendations for the ICC to ensure that future applications for revision of alleged wrongful convictions are fully considered and fairly determined.

The final, fourth chapter of the report, considers the innovative ground-breaking provisions in the ICC Statute providing for compensation in the event of a miscarriage of justice.  The IBA analyzed the court’s consideration of three applications for such compensation to date and recommended measures to ensure that future compensation awards are determined coherently and consistently.

As emphasized in the IBA, this report forms part of the association’s longstanding contributions towards a just and effective system of international justice.

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