THE OBSTACLES TO THE RIGHT TO A FAIR TRIAL UNDER THE INTERNATIONAL LAW: A CASE STUDY OF AL-ANFAL AND SREBRENICA GENOCIDE TRIALS
Authors: Almohawes Mohamad 
Published: September 2024

Background: The right to a fair trial is a critical part of national and international human
rights frameworks. To protect this right, the rule of law should be implemented. Currently, the
approach to trying individuals accused of grave international crimes, including genocide, is
different, which gives an impression of inequality. For instance, the person accused of the al-
Anfal genocide was tried by a national court and sentenced to the death penalty, whereas the

person accused of the Srebrenica genocide was sentenced to life imprisonment by an
international tribunal. Not to mention the lack of respect for the defendants’ rights during the
al-Anfal genocide’s trial, including the principle of due process and the right to a fair trial. The
main reason for the differing decisions in these two identical cases involving genocide arises
from their trials in different courts and under different legal frameworks. This paper addresses
the significance of these challenges for equality under international law and emphasises the
difficulties in securing fair trials by examining these examples.
Methods: This article analyses the application of the right to a fair trial for international
criminals by using doctrinal methods. Specifically, it adopts a qualitative approach to examine
relevant international statutes. To illustrate, the research chose to analyse and compare two
case studies: the trial of Ali al-Majid, the leader of the al-Anfal genocide, and Ratko Mladic,
the leader of the Srebrenica genocide. This comparison focuses on aspects such as judicial
independence and overall fairness in the trials of war criminals. It involves desk-based research
and data that are collected through the analysis of relevant literature from primary sources,
such as international law instruments and secondary sources, including books and academic
articles, about the inconsistency of fair trial standards in different judicial contexts.
Results and conclusions: Different approaches in trials for similar crimes threaten global
justice and the protection of individual rights and freedoms. One practical way to address this
issue is to bring those accused of grave international crimes, including genocide, to appear
before the International Criminal Court (ICC), providing fair trials and punishments.
However, this article demonstrates that the doctrine of state sovereignty may pose challenges
to creating a uniform framework for the prosecution of war criminals. Additional challenges
arise with the existence of different legal and political systems across the world. The article
argues that to ensure a fair trial and maintain international peace and security, it is necessary
to overcome these challenges and adopt a uniform framework for the prosecution of those
accused of grave international crimes. The ICC can be the solution. The international
community can overcome these challenges by encouraging all countries to join the Rome Statue
and give it the sole jurisdiction over grave international crimes such as genocide, war crimes,
or crimes against humanity.