Towards a new trial theory : procedural and evidentiary fairness in the context of unsettled practice in international criminal proceedings
Creators: name: MacCarrick, GF
Publisher: name: University Of Tasmania
Year: 2023

description: This treatise deconstructs the international criminal trial process, in an effort to disentangle, and therefore understand, how the essential components, relate to one another. This dissertation will examine on a bifurcated basis, the manner in which the dominant common law and civil law trial models have influenced the theoretical and methodological operation and development of international criminal proceedings, and the relative impact this has had upon the imperative to meet with the international standard of procedural fairness. It is contended that whilst peripheral jurisdictional idiosyncrasies can be synchronised into a general methodology, deep and abiding theoretical tensions have locked the evolution of the international criminal trial process in a transitional phase. Moreover, it is only through an agreed and appropriate theoretical framework, which informs the trial and brings about a genuinely sui generis system of criminal proceedings (with its own internal logic), that the international model can be said to successfully promote the guarantees of a fair trial. The study begins by describing what is meant by procedural fairness and analyses this notion in the context of the civil and common law criminal systems, and looks at the contribution of human rights law in shaping the concept. The thesis then takes a comparative look at the balance struck between common and civil law aspects in the procedural and evidentiary regimes applied in international criminal proceedings; commencing with the post war trials in Nuremberg and Tokyo, extending to contemporary ad hoc tribunals and concluding with the permanent criminal justice institution; the International Criminal Court. It is concluded that if the international criminal trial process is to safeguard the rights of the accused, it must be grounded in a common theoretical underpinning which describes its objectives and purposes. It is argued that the present tolerance of conflicted processes that hang loosely together needs refinement and that a theoretical framework will reduce ambivalence by aligning the conflicting expectations. Whilst the current transitional phase has allowed the crude workings of the essential mechanisms of the trial, the process must now move from describing the key components, towards a normative description that not only offers theoretical insight but also assists in reconciling competing, sometimes even incompatible, elements of the new model. The only way out of this present malaise is the development of a new trial theory. A sharper appreciation of the epistemology of the international legal process and a deeper understanding of comparative criminal justice and its impact upon the international trial, and more specifically an appreciation of how these influences translate in practice, is a vital step towards the formulation of a new trial theory. Finally, this thesis takes the unorthodox step of appending field research by way of a case study which seeks to illustrate and evaluate the synthesis and tensions in the context of a specific case. The trial of Prosecutor v Jose Cardoso Fereira (known as the Lolotoe trial), before the Special Panel for Serious Crimes in the jurisdiction of East Timor, (in which the author appeared as assigned defence counsel), is evaluated to demonstrate the disjuncture that exists between conjecture and actual practice. What becomes evident is that despite the process of internationalisation, significant procedural safeguards and filters on the quality of evidence presented are discretionary, if not totally absent, from the case study trial. This serves to illustrate the point that a common trial theory is key to informing discretionary practices and the missing ingredient in genuine procedural synthesis.