Description of impact
Dr McDermott’s research has had a notable impact on the development of the law relating to fairness in international criminal trials. The International Criminal Court relied directly on McDermott’s findings to retreat from past jurisprudence that held that the Prosecutor was entitled to the right to a fair trial in international criminal proceedings. Further, her research on evidence and proof has directly informed legal briefs submitted by counsel before international criminal tribunals, and has added to the broader debate on the right to a fair trial for those accused of serious international crimes.In its Judgment on the Prosecutor's appeal against the decision of Trial Chamber II entitled "Judgment pursuant to article 74 of the Statute" in the case of Prosecutor v. Ngudjolo Chui (Source 5.1), the Appeals Chamber of the International Criminal Court cited references 3.2 and 3.3 in distancing itself from previous jurisprudence that extended fair trial rights to other actors, such as the prosecution. Citing McDermott’s research, the Court found that, ‘It is commonly understood that the right to a fair trial/fair hearing in criminal proceedings, first and foremost, inures to the benefit of the accused.’
In its Status Conference of 15 January 2016 in the case of Prosecutor v. Ruto and Sang (Source 5.2), Trial Chamber V(a) of the International Criminal Court asked the defence for some references to occasions where uncorroborated hearsay evidence had been admitted. As well as providing some references to case law, the defence noted McDermott’s LJIL article (reference 3.4). The President, Judge Eboe-Osuji, noted that ‘Évidemment ce n’est pas une... ce n’est pas de la jurisprudence, parce que ça ne relève pas d’une juridiction internationale, mais s’il y est fait référence, enfin, vous pouvez faire des références à un article d’une revue de droit. Vous pouvez certainement l’utiliser comme référence.’ (‘Evidently, this is not jurisprudence, because it does not come directly from an international court, but if it is referred to, you can make reference to a law review article. You can certainly use it as a reference.’) The Ruto and Sang defence teams relied heavily on this article (reference 3.4) in arguing that the trial could not proceed on the basis of untested witness testimony (see sources 5.3 and 5.4); this argument was successful, and the charges against Ruto and Sang were dismissed in April 2016, owing to a lack of sufficient Prosecution evidence (source 5.5).
McDermott’s research has also been used as authority by defence counsel before other international criminal tribunals, such as in the Defence Appeal Brief in the high-profile case of Prosecutor v. Radovan Karadzic before the International Criminal Tribunal for the Former Yugoslavia (source 5.6), which cites reference 3.1, and by counsel before the Special Tribunal for Lebanon in the Request for Recusal of a Judge in the case of Prosecutor v. Akhbar Beirut SAL and Al Amin (source 5.7).
The research has also reframed the scholarly debate, in showing the potential of international criminal tribunals to bear a positive influence on domestic trial practice (reference 3.1, cited in inter alia, source 5.8); highlighting some of the dangers in the rebalancing of the rights of the accused (cited in sources 5.9, and 5.10), and arguing for a stricter evaluation of evidence by international criminal tribunals (cited in source 5.8).
Description of the underpinning research
Research context: Upon the UN Security Council’s establishment of the International Criminal Tribunal for the former Yugoslavia in 1994, the UN Secretary General noted that it was ‘axiomatic’ that tribunals established by the international community to try the worst crimes known to mankind (genocide, war crimes and crimes against humanity) would fully respect the rights of the accused. Over time, however, the tribunals began to face practical difficulties with ensuring the right to a fair trial, including the geographic distance from the conflicts they were adjudicating upon, witnesses’ unavailability and/or unwillingness to testify, and the cost and unwieldiness of proceedings. The commitment to setting the highest standards of fairness began to dilute. McDermott’s research has consistently argued for a reframing of the debate, focussing on the need for the tribunals to ensure that the rights of the accused are fully respected. This research has informed practice before the international criminal tribunals.Key insights and research themes:
The research centres around three core themes:
A. Setting the Highest Standards of Fairness
McDermott’s research has consistently argued (e.g. in references 3.1 and 3.2) that international criminal tribunals have a role in setting the highest standards of fairness in their procedures. In 3.1, she expanded the hypothesis to highlight the dangers of setting lower standards, and to argue that international criminal procedure can and does have an impact on domestic criminal procedure.
B. Against ‘Rebalancing’ of the Rights of the Accused
Over time, the international criminal tribunals began to hold that the right to a fair trial extended not just to the accused, but to other actors such as the prosecutor, victims and the international community (discussed further in references 3.1, chapter 4, and 3.2 and 3.3). McDermott’s research has pointed to the dangers of this approach, insofar as it can lead to a ‘balancing’ of the rights of the accused against the interests of these other actors at trial.
C. Strengthening the Evaluation of Evidence
The research has also focussed on the weakness of the evidence used in some international criminal tribunals, particularly the over-use of written witness statements in lieu of oral testimony in court (see reference 3.4, in particular). McDermott has argued against ‘holistic’ evaluations of evidence, which might be used to ignore some of the weaknesses of the evidential record in supporting a conclusion (references 3.5 and 3.6).
References to the research
1. McDermott, Fairness in International Criminal Trials (OUP, 2016).
2. McDermott, ‘Rights in Reverse: A Critical Analysis of Fair Trial Rights under International Criminal Law’ in Schabas, McDermott and Hayes, The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013) 165-180.
3. McDermott, “General Duty to Ensure the Right to a Fair and Expeditious Trial” in G. Sluiter et al. (eds.), International Criminal Procedure: Principles and Rules (OUP, 2013), pp. 770-817.
4. McDermott, ‘The Admissibility and Weight of Written Witness Testimony in International Criminal Law’ (2013) Leiden Journal of International Law 971-989.
5. McDermott, ‘Inferential Reasoning and Proof in International Criminal Trials’ (2015) Journal of International Criminal Justice 507-533.
6. McDermott, ‘Strengthening the Evaluation of Evidence in International Criminal Trials’ (2017) International Criminal Law Review (forthcoming).
General Notes
Sources to corroborate the impact1.Prosecutor v. Ngudjolo Chui, Judgment on the Prosecutor's appeal against the decision of Trial Chamber II entitled "Judgment pursuant to article 74 of the Statute, 7 April 2015, pp. 100-101, online at https://www.legal-tools.org/uploads/tx_ltpdb/doc1957802_04.pdf.
2.Prosecutor v. Ruto and Sang, Transcript, 15 January 2016, p. 62, online at https://www.legal-tools.org/uploads/tx_ltpdb/doc2196322_01.pdf.
3.Prosecutor v. Ruto and Sang, Public Redacted Version of Corrigendum to Sang Defence Response to Prosecution’s Request for the Admission of Prior Recorded Testimony of [Redacted] Witnesses, filed on 12 June 2015, 30 June 2015, online at https://www.icc-cpi.int/CourtRecords/CR2015_08534.PDF.
4.Prosecutor v. Ruto and Sang, Public Redacted Version of Sang Defence Appeal against the decision of Trial Chamber V (A) of 19 August 2015 entitled “Decision on Prosecution Request for Admission of Prior Recorded Testimony”, 13 October 2015, online at https://www.icc-cpi.int/CourtRecords/CR2015_19373.PDF.
5.Prosecutor v. Ruto and Sang, Public redacted version of Decision on Defence Applications for Judgments of Acquittal, 4 April 2016, online at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/09-01/11-2027-Red.
6.Prosecutor v. Karadzic, Radovan Karadzic’s Appeal Brief, 23 December 2016, online at https://www.legal-tools.org/uploads/tx_ltpdb/KARADZIC_-_Public__Radovan_Karadzic_s_Appeal_Brief.pdf.
7.Prosecutor v. Akhbar Beirut SAL and Al Amin, Demande de recusation du juge competent en matiere d'outrage, 11 July 2014, online at https://www.legal-tools.org/uploads/tx_ltpdb/20140723_F0033_PUBLIC_Al-Amin_Request_for_Disqualification_R25D-Lettieri_AR-FR_Joomla_06.pdf.
8.Kai Ambos, Treatise on International Criminal Law, Volume III: Procedure (OUP, 2016).
9.Sophie Rigney, ‘The Words Don’t Fit You: Recharacterisation of the Charges, Trial Fairness, and Katanga’ (2014) Melbourne Journal of International Law 515.
10.Krit Zeegers, International Criminal Tribunals and Human Rights Law: Adherence and Contextualisation (Springer, 2016).
| Impact status | Ongoing |
|---|---|
| Category of impact | Policy and Public Services, Societal |