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Submit a 5-7 page, APA formatted paper that addresses the following:

  • Beginning on page 222 of the text, review and examine the issue of Rights in Prison as related to due process and human rights.
    • Locate and examine the case of Talley v. Stephens (information also located in footnote 302) and provide a synopsis of the facts of this case, the issues addressed and the holding of the Court.
    • Then go to page 233 and compare and contrast this case and the decision to the ICCPR and the Inter-American Convention on Human Rights.
    • Upon completion provide your opinion as to the Courts decision and the requirements of the aforementioned international requirements.
  • Beginning on page 228 of the textbook, read the discussion on the issue of Customary International Law of Human Rights as United States Law.
    • Review the information presented pertaining to Article 6 of the United States Constitution, and the discussion about treaties as the supreme law of the land. (Refer to footnotes on page 336 for some additional information.)
    • Based on the information in the text, the footnotes, and research you conduct pertaining to this issue, describe the current official legal position of the United States pertaining to Customary International Law and Article 6 of the United States Constitution.

Due Process and International Terrorism

Studies in Intercultural Human Rights

Editor-in-Chief

Siegfried Wiessner St. Thomas University

Board of Editors

W. Michael Reisman, Yale University • Mahnoush H. Arsanjani, United

Nations • Nora Demleitner, Hofstra University • Christof Heyns, University

of Pretoria • Eckart Klein, University of Potsdam • Kalliopi Koufa,

University of Thessaloniki • Makau Mutua, State University of New

York at Buffalo • Martin Nettesheim, University of Tübingen; University

of California at Berkeley • Thomas Oppermann, University 0f

Tübingen • Herbert Petzold, Former Registrar, European Court of Human

Rights • Martin Scheinin, European University Institute, Florence

VOlUME 1

This series offers pathbreaking studies in the dynamic field of intercultural human rights. Its primary aim is to publish volumes which offer interdisciplinary analysis of global societal problems, review past legal responses, and develop solutions which maximize access by all to the realization of universal human aspirations. Other original studies in the field of human rights are also considered for inclusion.

Due Process and International Terrorism

by

Roza Pati

lEIDEN • bOSTON 2009

ISSN: 1876-9861 ISbN: 978 90 04 17238 8

Copyright 2009 by Koninklijke brill NV, leiden, The Netherlands. Koninklijke brill nv incorporates the imprints brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP.

http://www.brill.nl

All rights reserved. No part of this publication may be reproduced, stored in a retrieval sys- tem, or transmitted in any form or by any means, electronic, mechanical, photocopying, mi- crofilming, recording or otherwise, without written permission from the Publisher.

Authorization to photocopy items for internal or personal use is granted by brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA.

Fees are subject to change.

printed in the netherlands.

This book is printed on acid-free paper.

Table of Contents

Preface ix

Acknowledgments xi

CHAPTER I Delimitation of the Problem 1 A. Due Process in Criminal Proceedings 1 B. Defining States of Emergency 14 C. Terrorist Acts as Grounds for a State of Emergency 24

CHAPTER II Criminal Due Process Guarantees in Peacetime: The International legal Regime 31

A. Human Rights Treaties 38 1. The International Covenant on Civil and Political Rights and the

Jurisprudence of the Human Rights Committee 38 a. Due Process before Trial 42 b. Due Process during Trial 52 c. Due Process in Appeal 69

2. The European Convention on Human Rights and Fundamental Free- doms and the Jurisprudence of the European Court of Human Rights 72 a. Due Process before Trial 74 b. Due Process during Trial 82 c. Due Process in Appeal 96

3. The Inter-American Convention on Human Rights and the Jurispru- dence of the Commission and the Court 97 a. Due Process before Trial 97 b. Due Process during Trial 100 c. Due Process in Appeal 103

4. The African Charter on Human and Peoples’ Rights and the Jurispru- dence of the African Commission on Human and Peoples’ Rights 104 a. Due Process before Trial 104 b. Due Process during Trial 106 c. Due Process in Appeal 112

Table of Contentsvi

B. Customary International Law and General Principles of Law 112 1. Due Process in Customary International Human Rights Law 113

a. The Universal Declaration on Human Rights 113 b. General Principles of Law Recognized by the Community of

Nations 117 c. Déni de justice: International Minimum Standard of Diplomatic

Protection 120 C. Due Process in Proceedings before International Criminal Tribunals 124

1. The International Military Tribunals in Nuremberg and Tokyo 125 a. The IMT at Nuremberg 125 b. The IMT at Tokyo 130 c. Appraisal of both Tribunals 131 b. The International Criminal Tribunal for the former Yugoslavia

and the International Criminal Tribunal for Rwanda 135 c. The International Criminal Court 144

CHAPTER III Domestic Criminal Due Process Guarantees: A Case Study of the United States of America 167

A. Overview 167 B. Due Process before Trial 171

1. The Prohibition against Unreasonable Search and Seizure 171 2. Arrest 174 3. Pre-Trial Detention and Bail 176 4. Pre-Trial Investigation 179

a. The Privilege against Self-Incrimination 179 b. Miranda 181 c. The Exclusionary Rule 184

5. Grand Jury Review 186 6. The Right to Be Clearly Informed of Charges in Indictment or Infor-

mation 189 7. The Presumption of Innocence 190 8. The Prohibition of Double Jeopardy 190 9. Plea Bargaining 193

C. Rights to and in Trial 197 1. Trial by Jury 198 2. The Right to an Impartial, Independent and Competent Tribunal 201 3. The Right to a Speedy and Public Trial 205 4. The Right to Counsel 208 5. The Adversarial Process: Equality of Arms 211 6. Discovery Rights 212 7. The Right to an Interpreter 213 8. Sentencing 213

a. The Prohibition of Cruel and Unusual Punishments 213 b. Proportionality 214 c. The Death Penalty and Death Row 215

Table of Contents vii

d. The Execution of Juveniles 219 D. Rights in Prison 222 E. Habeas Corpus 226 F. Right to Appeal 227 G. Customary International Law of Human Rights as United States Law 228

CHAPTER IV Criminal Due Process in Times of Emergency and Terrorism: The International legal Regime and Comparative Perspectives 235

A. Treaty Law and Jurisprudence 240 1. The International Covenant on Civil and Political Rights, Article 4, and

the Jurisprudence of the Human Rights Committee 240 2. The European Convention on Human Rights and Fundamental Free-

doms, Article 15, and the Jurisprudence of the European Commission and Court of Human Rights 255

3. The Inter-American Convention on Human Rights, Article 27, and the Jurisprudence of the Inter-American Commission and Court of Hu- man Rights 265

4. The African Convention on Human and Peoples’ Rights and the Juris- prudence of the African Commission on Human and Peoples’ Rights 273

B. Customary International Law 274 C. The Community of Nations’ Responses to Terrorism 278

1. The Response of the International Community as a Whole 278 a. Before September 11, 2001 278 b. After September 11, 2001 282

2. The Response of the International Community as Individual States 288

CHAPTER V Domestic Criminal Due Process in Times of Emergency and Terrorism: The United States of America 295

A. States of Emergency and the Constitution Prior to 9/11: Ex parte Milligan (Civil War), Ex parte Quirin (World War II), and Youngstown Steel (Korea) 295

B. U.S. Anti-Terrorism Measures After September 11, 2001 314 1. Overview 314 2. The U.S.A. PATRIOT Act 316 3. Detention, Treatment and Adjudication of Persons Designated En-

emy Combatants in the Global War on Terror 326 a. President Bush’s 2001 Military Order on Detention, Treatment,

and Trial of Certain Non-Citizens in the War Against Terrorism 327 b. Detention of Persons Designated Enemy Combatants in the

Global War on Terror 331 aa. The Status of Guantánamo Detainees 333 bb. Rasul v. Bush and Hamdi v. Rumsfeld 339 cc. Combatant Status Review Tribunals and Administrative

Review Boards 346 dd. Post-Rasul Habeas Corpus Litigation 352 ee. The Detainee Treatment Act of 2005 356

Table of Contentsviii

ff. The Military Commissions Act of 2006 358 gg. Boumediene v. Bush 360 hh. Detention Post-Boumediene 368

c. Treatment of Persons Designated Enemy Combatants in the Global War on Terror 372 aa. Torture and Inhuman Treatment 372 bb. Extraordinary Renditions 380 cc. Extrajudicial Targeted Killings 384

d. Adjudication of Suspected Enemy Combatants in the Global War on Terror: The Role of Military Commissions 386 aa. Department of Defense Military Commission Order No. 1:

Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism 386

bb. Hamdan v. Rumsfeld 395 cc. The Military Commissions Act of 2006 404 dd. The Manual for Military Commissions of January 2007 408 ee. Practice Under the Military Commissions Act 414

CHAPTER VI Appraisal of Domestic Measures under International law 425 A. The Applicable Legal Regime: General Framework 425 B. Application of International Law to the U.S. Global War on Terror 431

1. General Considerations 431 2. The Global War on Terror: A State of Emergency? 432 3. Application of the Substantive Emergency Human Rights Regime 436

a. Indefinite Detention to Prevent Future Acts of Terrorism or to Investigate Past Such Acts 438

b. Extrajudicial Targeted Killings 446 c. Torture and Cruel, Inhuman or Degrading Treatment 447 d. Adjudication before Military Commissions 454

CHAPTER VII Discussion of Alternatives and Recommendation of Solutions in the Global Common Interest 461

Select bibliography 477

Index 503

Preface

This book should be read by everyone who is interested to know more about the nar- row borderline separating legally acceptable from unacceptable measures or acts in the fight against international terrorism. However, the book does not present easy so- lutions. It is not written by an author who has closed her eyes and mind vis-à-vis the danger for State and society emerging from terrorism. Certainly, the perspective that Roza Pati presents, clearly reflects her background: on the one hand, her grandfather was extra-judicially executed in the 1950s in Albania, hence her commitment to due process; on the other hand, she was an elected Member of Parliament and a member of the Cabinet, as the Secretary of State for Youth and Women in Albania, during the beginning of the democratization process of this country in the 1990s. She experi- enced a number of upheavals in the newly established democracy, and understands the responsibility of the State towards liberty of the individual, but also towards peace and security of its population and the democratic society. Consequently, she is seeing both sides of the medal. She fully appreciates the seriousness of the situation.

She does not belong to those who just bluntly, and more often than not, arrogantly, deliver their judgment. She gives the State what it needs to fulfill its protective func- tions, but by the same token she draws a line, which the State must never cross. The “cardinal principles of liberty,” as Justice Davis had already put it nearly 150 years ago in the famous Milligan case (1866), must always be preserved. Torture as well as the creation of “black holes” where individuals are detained without having the chance of judicial supervision negate the right to recognition everywhere as a person before the law, a fundamental guarantee inherent in human beings’ dignity.

Additionally, the book teaches us another important lesson. A society, firmly founded on the ideas of liberty, separation of powers and the rule of law will always be strong enough to regain its balance, even if the borderline mentioned above was overstepped, be it with good or bad intent.

Roza Pati’s literate and profoundly researched study leaves the reader in a thought- ful mood. One recognizes the imperfection of our world, and is encouraged to strive for the better. The author and what she has to say deserve attention.

Eckart Klein Potsdam, Germany

Acknowledgements

This book is an updated version of my doctoral dissertation entitled Criminal Due Process Guarantees and International Terrorism as a State of Emergency: An In- ternational Legal Analysis, submitted to the University of Potsdam Faculty of Law, Germany. It includes events up to October 15, 2008.

My first and deepest gratitude goes to my Doktorvater, Prof. Dr. iur. Eckart Klein, whose unfailing support, consummate expertise, and intellectual guidance accompa- nied this scholarly journey with exemplary critical dedication and encouragement. I owe abiding appreciation to Prof. Dr. iur. Siegfried Wiessner, the Editor-in-Chief of the Studies in Intercultural Human Rights, a series which this book has the excep- tional honor to inaugurate. His academic rigor, his commitment to a world order of human dignity, and his challenge to excel were essential sources of inspiration. I am also grateful to Prof. Dr. Michael Reisman for his most gracious comments on my book, and for the invaluable time he dedicated to reading my manuscript.

At Universität Potsdam, Juristische Fakultät, I give special thanks to PD Dr. iur. Norman Weiß for reading my manuscript and offering his valuable comments, as well as to Prof. Dr. iur. Andreas Musil, who chaired my rigorosum committee.

I am also grateful to St. Thomas University School of Law, the place of my stud- ies, my teaching, and my continuing academic work, for the superb conditions it has created for my research and writing. The rich collection of its law library and the skillful professionalism of its staff were indispensable to the success of my doctoral endeavor.

Last but not least, I remain forever indebted to my dear family whose uncondi- tional support, understanding and love surrounded me in all the long days, months, years – the countless hours of work. I could have never been able to succeed in this project without their unselfish encouragement, generous care, warm wishes, bless- ings and prayers.

I respectfully bow to all of the above, since by them, as Horace would rhyme, I was taught how best my pearls to thread…

Roza Pati Miami, U.S.A.

CHAPTER I Delimitation of the Problem

Fiat justitia ne pereat mundus*

A. Due Process in Criminal Proceedings

Humanity is engulfed in “a new order of threat.”� It is living in the age of a global battle against terrorism, a war, as it is often called, that it did not necessarily choose to fight. 21st century civilization is living in a bizarre “world where the name of God is some- times associated with vengeance or even a duty of hatred and violence.”� Barely one day passes by without bomb blasts somewhere on this planet, and their innocent vic- tims making the headline news. Communities keep counting their dead. In the midst of this turmoil, society, in all of its layers, reacts and passes judgments of right and wrong, both morally and legally. These reactions not only differ from one individual to another, but, most of the time, they also diverge from group to group. Undoubt- edly, one of these layers of society, the law makers and the legal profession, bears a heavy burden in that struggle. Torn between the ends of public security and effec- tive administration of justice on one side, and the interests of the individual justly or unjustly accused on the other side, they become key actors in the search for fruitful approaches to adequately regulate the natural imbalance of power in criminal pro- ceedings, this confrontation of the lone accused with the vast machinery of the state. While most of society’s sentiments and apprehension, augmented by the media, rest with the victims in fear of the heightened potency of terrorism,� the legal profession

* Latin for “Let justice be done lest the world should perish.” G. W. F. Hegel, Grundlinien der Philosophie des Rechts [Elements of the Philosophy of Right] (1821), para. 130. This formulation appropriately adjusts the Latin maxim fiat justitia ruat coelum which means “Let justice be done, though the heavens fall.”

1 C. Warbrick, Emergency Powers and Human Rights: The UK Experience, in Legal In- struments in the Fight against International Terrorism: A Transatlantic Dialogue 361, 392 (C. Fijnaut, J. Wouters & F. Naert eds., 2004).

2 Supreme Pontiff Benedict XVI, Deus Caritas Est: Encyclical Letter to the Bishops, Priests and Deacons, Men and Women Religious and All the Lay Faithful on Christian Love, Vatican, Dec. 25, 2005, available at http://www.vatican.va/holy_father/benedict_xvi/en- cyclicals/index_en.htm .

3 For comments on a victim-oriented approach as a contributing factor to potential denial of due process, and the influence of media as an important agent in this respect, see Susan Marks & Andrew Clapham, International Human Rights Lexicon 160 (2005). See also Peter Judson Richards, Extraordinary Justice: Military Tribu-

2 Chapter I

has to be fully preoccupied not only with the victim, but also with the victimizer. This seeming paradox, that might baffle the lay person, does in fact constitute the axis of a lawyers’ work in a democratic society, where the standards of conduct are “the law” for all, where the rights, be they grounded in natural law� or granted by positive law, belong to all, and where the lawyers’ job and professional duty is to achieve justice for their clients through effective legal representation, in the process adding a measure of justice to society.�

Due process of law is one of these rights, which is as important as it is most easily and most extensively violated. In order to be able to evaluate the process due an ac- cused in today’s war against terror, one should first know the basic legal guarantees, both domestic and international, as well as the standards that have already been set in this regard and the evolving trends and tendencies. It is widely accepted that justice can only be served through fair trials, and the prejudgment of guilt should be curbed at its inception. No matter how dedicated the justice system is in its search for truth, the legal process is run by humans, and thus cannot help but yield imperfections and deficiencies. The modern-day community, on a global scale, has, by and large, moved forward to accept and develop procedures that may benefit any accused, even the guilty one, and as it does so, it looks at the judicial infirmities of the past, which tell cautionary stories for the present and the future.

Once a crime has been reported or even suspected, and depending on its prima facie nature, type and scale, it immediately might become the central focus of interest of the political, social, and, most of all, the legal community. However, often in dis-

nals in Historical and International Context 187-188 (2007). Professor Scha- bas notes that “whereas in the past human rights law sought to protect the human rights of the accused without real regard to guilt or innocence, it is now torn by another ex- treme, one that is oriented towards the victim and that thrives upon conviction.” William A. Schabas, Balancing the Rights of the Accused with the Imperatives of Accountability, in From Sovereign Impunity to International Accountability: The Search for Justice in a World of States 154, 165 (Ramesh Thakur & Peter Malcontent eds., 2004).

4 Rights essentially do not derive from the state or any other external authority, conse- quently may not be taken away. They “derive from the inherent dignity of the human person,” as noted in the Helsinki Final Act, Principle VII. Thus, any official behavior that affronts human dignity should be considered a violation of the rights of the person. With- in the topic of our discussion, for example, it is incompatible with respect for inherent human dignity to punish detained persons by psychological or physical means that would humiliate them by ridiculing their beliefs, their origins or their way of life, or to deny them the capacity to assert claims to basic rights. For a detailed analysis of human dignity as a normative concept, the meaning of the inherent dignity of the human person, the conduct incompatible with it, as well as the relation of human dignity to human rights, see Oscar Schachter, Human Dignity as a Normative Concept, in Human Rights Law 101-107 (Philip Alston ed., 1996). See also Eckart Klein, Human Dignity in German Law, in The Concept of Human Dignity in Human Rights Discourse 145-159 (David Kretzmer & Eckart Klein eds., 2002).

5 Anthony D’Amato, On the Connection between Law and Justice, in Philosophy of Law 19, 20 (Joel Feinberg & Hyman Gross eds., 5th ed. 1995).

3The Problem

tinction from the rest of society, the legal community is simultaneously demanding of justice being served and of defendants’ rights being respected. The latter constitutes the central demand on a true public order of human dignity, based on the liberty of the individual.

A broad array of issues and concerns regarding guarantees of due process of law in criminal proceedings arises right from the start of the reported crime or its initial suspicion, and incessantly shifts on up to the final point in case of a conviction, the serving of the sentence by the offender. The individual’s vulnerabilities both in the in- vestigative and in the adjudicative phase are numerous, and awareness of this critical exposure would likely yield the process due and a fair outcome, when it is undisput- edly based on the laws of a country, human rights treaties and customary internation- al law. But this legal process, like any other part of life, has its own shortcomings.

The parties involved in the pre-trial phase, particularly the individual and the po- lice, might have different stories to tell. The defendant might have been arbitrarily ar- rested and detained or held incommunicado; he might not have been told the reasons for his arrest; in a U.S. context, he might have been unaware of the Miranda rights; he might have been refused his one phone call; his habeas corpus right might have been violated; his home could have been searched without a warrant; he could have been tortured at the police station; he could have been subjected to inhumane conditions during his detention. Later on, if a plea bargain is not entered into, in the legal sys- tems where this procedure is available, the defendant will face trial, hoping for equal access to and equality before the court, in a speedy, fair and public hearing.

In a democratic system, trial procedures are very comprehensive, and concerns for, as well as aspirations to, natural or substantive justice override many other con- siderations of the legal system. However, at this stage, further vulnerabilities await the accused. Concerns about trial by a jury, where available, by a judge or by a mixed bench come to the fore, followed suit by the apprehension regarding his incrimina- tion; his access to files of the prosecutor, to facilities and time to prepare his de- fense, to a translator/interpreter if needed; the possibility of cross-examination of witnesses; obedience or not to rules of evidence protecting him; capped by issues of a competent, independent and impartial tribunal, which refrains from the retroac- tive application of criminal laws, avoids double jeopardy, etc. The process, and the problématique of its fairness, continues with post-trial issues in the appeals phase. Is the appellate review going to be timely and genuine? Is there going to be a new trial in case of a gross miscarriage of justice? A new venue, if needed? Will there be compensation if the defendant has already suffered punishment as the result of a miscarriage of justice?

All of these questions and concerns constitute the institutional framework, the crucible within which to appraise the due process of law in a democratic society. They demand that, no matter how deliberative and reflective the process might be, no stone be left unturned to both capture and evaluate all of the aspects of this no- tion and their consequences, while searching for the truth and for justice. Before we address the notion of due process of modern times, however, we ought to look for its meaning and its roots: What, in essence, is due process? How did the concept of “due

4 Chapter I

process of law” come into being? What, in history, were the issues and vulnerabilities that brought about its legal paradigms of today?

Due process, a seemingly uncomplicated phrase, has come to have contested meanings. While those meanings are suggestive, they are hardly self-explanatory.� Se- mantically,� the word “process” has everyone in agreement; however, the word “due” has constantly been seen as the vague part of the concept. While its basic meaning as defined by the dictionary is “owed,”� the interpretation of what it entails in the con- text of a criminal proceeding has taken centuries to be developed. As with any other ambiguous or controversial term, “due process of law” remains a concept that cannot be described in one single phrase, nor has it been easy to arrive at the understanding that the legal community, municipal or international, have today of due process of law.� Judges and lawyers have struggled over centuries to give content to the phrase. They have at times reached certain standards, some of which persisted over time and some of which did not endure for long, in the never-resting, meandering stream of decisions. This history leads us to believe that it would be naïve to assume that now its meaning is ascertained for good.

In many respects, the enumeration of what is “owed” to the accused in the process of trial and punishment resembles a miniature general code of criminal procedure.�0 Many of the components of what is “owed” were first to find expression not only in

6 John V. Orth, Due Process of Law: A Brief History (2003), at Preface X. 7 As it will be seen in the course of this book, the semantic approach would not help us

much. Dworkin was right to object to conventionalism, as a semantics approach, which seeks the nature of something by means of describing the thing’s most obvious features, and then identifying those which are most essential, in explaining how the word is used. He calls this approach the “semantic sting.” See J.G. Riddall, Jurisprudence 99 (1999). Dworkin picks up this issue again when he writes about originalism and fidelity to the Constitution. He argues that some interpreters wrongly perceive fidelity to the Constitu- tion to be fidelity to its text. Addressing “textualists” such as Justice Scalia, he states that in interpreting the very same text he would reach “radically different conclusions” from theirs. In some circumstances, he writes, it could be justified to disregard fidelity to the text, and to be aware of the distinction between the semantic intention of the framers and their political or expectation intention. The Eighth Amendment’s prohibition of “cruel and unusual punishment,” for example, may reflect the punishments that were judged cruel by the “popular opinion of their day,” but maybe the correct standards of “cruel” in popular opinion in the U.S. today might come to include, say, capital punishment, which he then would consider unconstitutional. See Ronald Dworkin, Justice in Robes 118- 135 (2006).

8 Samuel Johnson, A Dictionary of The English Language (11th ed. 1779). 9 The scope of due process expanded with the shift of interests of power and law: first it

was all about landed property, then other intangible interests appeared, then agreements and contracts, then the focus became civil rights, etc., and due process developed not only as a right to procedural fairness, but also as a substantive guarantee. For a detailed history of this development of due process, see David J. Bodenhamer, Fair Trial: Rights of the Accused in American History (1992).

10 Id. at 5.

5The Problem

codes or legislative actions but also through wearisome processes of pre-trial and trials, in the detention stations as well as in the courtrooms of several legal tradi- tions. Understandably, this led to dissimilar standards. It is exactly the differences rather than the commonalities that bring about the need for a check of municipal due process against a minimum floor of guarantees, particularly in criminal proceed- ings, that have been agreed upon internationally. From a jurisprudential perspective, another point of debate could be its reference to a process of law which is owed to the accused because of it being granted by “the law of the land,” thus reflecting a positivist stance, or rather because it is fair, right and just for a human to be entitled to an in- herent right to due process of law, evidencing a natural law, dignity-based approach, drawing on and reaffirming the ethical dimension of this right.��

Any crime represents a threat to stability and it is in society’s interest, through its government, to maintain order through punishment of any misdeeds.�� However, it is also in the interest of the community to abide by the requirements of fairness in its search for truth and justice, bearing in mind that human rights are owed by States to all individuals within their jurisdiction. The representation of justice served comes to us, sometimes, through images of brutal processes and draconian punishments.

11 All three documents constituting the International Bill of Rights in their preamble para- graphs recognize “the inherent dignity and … the equal and inalienable rights of all mem- bers of the human family”. The same holds true for regional conventions of human rights protection. So, the American Convention on Human Rights expressly notes “that the essential rights of man are not derived from one’s being a national of a certain State, but are based upon attributes of the human personality.” The African Charter on Human and Peoples’ Rights, also in the preamble recognizes “that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection.” Courts have followed suit. The Inter-American Court of Human Rights in its Advisory Opinion on Habeas Corpus in Emergency Situations, for example, states that the rights protected by the Convention cannot, per se, be suspended even in emergency situ- ations, because they are “inherent to man.” See Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations (arts. 27(2), 25(1) and 7(6), Advisory Opinion OC-8/87, 30 January 1987, Series A, No. 8, at 37, para. 18.

12 The world’s first democracy condemned to death the world’s most renowned philoso- pher, Socrates, because of his nonconformist attitude, some two and a half thousand years ago. A properly constituted court, a jury of some 500 peers, equal time for prosecu- tor and defense, a death penalty executed by asking Socrates to drink poison and walk until his feet grew heavy and cold – images of early justice or injustice in action. Socrates’ famous humorous answer to his student Apollodorus who was saddened that the teacher was put to death unjustly echoes today: “My beloved Apollodorus, would you prefer to see me put to death justly?” For a historical account of fairness or unfairness of trials, con- victions of the guilty or the innocent, see Brian Harris, State Trials from Socrates to Nuremberg 165-174 (2006).

6 Chapter I

In the England of Henry II,�� the accused had to go through an ordeal�� in order to prove his innocence or guilt. The oath�� in trial was also part of the system based on the principle of the law that “denial is always stronger than accusation.”�� Since the communities were not prepared to pay for the cost of keeping prisons, it was easier and cheaper to execute or mutilate someone for having committed a bad crime. Gib- bets and whipping posts were the symbols of the legal system of those times. The people believed in their fairness of establishing guilt or innocence in a judicial mat- ter, because of their prevalent belief of God’s presence and active intervention in earthly affairs and that God’s judgment was at hand and immediate.�� Before that,

13 King Henry II ruled England from 1154 to 1189. Of great importance in his reign was a series of the legal reforms which are considered to be the origins of common law due to their routine nature and wide applicability. For a detailed analysis of these legal reforms, the reconstruction of legal framework of English feudalism, the opinions of several legal historians on the actions taken by Henry II, as well as the influence they had in centu- ries to follow, see Joseph Biancalana, For Want of Justice: Legal Reforms of Henry II, 88 Colum. L. Rev. 433 (1988).

14 Henry II sent out his own judges from London to listen to cases throughout all of Eng- land’s counties. The accused would have to go through one of these three ordeals: Ordeal by fire: an accused person held a red hot iron bar and walked three paces. His hand was then bandaged and left for three days. If the wound was getting better after three days, he was innocent. If the wound had clearly not got any better, he was guilty. Ordeal by water: an accused person was tied up and thrown into water. If he floated he was guilty of the crime he was accused of. Ordeal by combat was used by noblemen who had been accused of something. They would fight in combat with their accuser. Whoever won was right. Whoever lost was usually dead at the end of the fight. Available at http://www. historylearningsite.co.uk/medieval_law_and_ order.htm .

15 In most cases, the defendant would be allowed to bring forward an oath to prove his in- nocence. This was achieved with the aid of oath-helpers, the number of which depended on the nature and severity of the charge involved. The oath-helpers would know the facts behind the case as well as anyone else, which is why there was no need for them to give evidence. The defendant swore: “By the Lord, I am guiltless both of deed and instigation of the crime with which N charges me”, and the oath-helpers simply swore in support of this: “By the Lord, the oath is pure and not false that M swore”. Usually, that was enough, and the defendant walked away free. A man who was known to be guilty would have a hard job getting together the requisite number of oath-helpers. Also, the plaintiff would not grant the oath because a defendant might not be considered ‘oath-worthy.’ In this case, as well as in the case when he had failed to find enough oath-helpers, the defendant, who would not want to admit guilt, might have had to go to the ordeal, the judgment of God. Available at http://www.regia.org/law.htm.

16 This was a principle of law in Anglo-Saxon England but it continued to exist as a “relic” even in the Leges Henrici Primi. Biancalana, supra note 13, at 457.

17 The ordeal was performed in a ritual manner. A priest was usually present to invoke God’s power and to bless the implements employed in the ordeal. In one typical formula, the priest asked God “to bless and sanctify this fiery iron, which is used in the just exami- nation of doubtful issues.” Priests would also inform the accused, “If you are innocent of this charge … you may confidently receive this iron in your hand and the Lord, the just judge, will free you.” The ritual element of the judicial ordeal emphasized the judgment

7The Problem

during the reign of Henry I, the Leges Henrici Primi�� recorded some procedures that bear resemblance to some elements of due process. Thus, an unjust judgment, which was probably based on a wrong assignment of the burden or mode of proof,�� bore grounds for bringing a case to “a judge of higher standing and wisdom,”�0 in case the process did not allow the defendant enough time to have his lord present, to pre- pare a defense, to seek counsel of his friends and relatives, or because judgment was rendered in the excused absence of a party.�� Later, after the use of ordeals waned, mostly because in 1215 the Church banned the participation of clergy in them,�� but also because of the revival of Roman Law in the twelfth century, increase of literacy and trust in written documents, the establishment of guilt or innocence was vastly

of God over the judgment of men. This ended when the Church felt its spiritual mission compromised by the involvement of priests in supervising ordeals. In 1215, the Fourth Lateran Council forbade priests from participating, and their absence made it impossible for the ordeal to continue as a formal legal procedure. Available at http://wps.ablong- man.com/long_levack_west_1/0,8723,1123922-,00.html .

18 Leges Henrici Primi c. 43, 4 (L. J. Downer ed. & trans. 1972). 19 Biancalana, supra note 16. 20 Leges Henrici Primi, supra note 18, c.33, 2. 21 Biancalana, supra note 16. 22 Canon 18 of The Canons of the Fourth Lateran Council of 1215 states: “No cleric may

pronounce a sentence of death, or execute such a sentence, or be present at its execu- tion. If anyone in consequence of this prohibition (hujusmodi occasione statuti) should presume to inflict damage on churches or injury on ecclesiastical persons, let him be restrained by ecclesiastical censure. Nor may any cleric write or dictate letters destined for the execution of such a sentence. Wherefore, in the chanceries of the princes let this matter be committed to laymen and not to clerics. Neither may a cleric act as judge in the case of the Rotarii, archers, or other men of this kind devoted to the shedding of blood. No subdeacon, deacon, or priest shall practice that part of surgery involving burning and cutting. Neither shall anyone in judicial tests or ordeals by hot or cold water or hot iron bestow any blessing; the earlier prohibitions in regard to dueling remain in force.” Available at http://www.fordham.edu/halsall/basis/lateran4.html (last visited on June 4, 2006).

8 Chapter I

trusted to a jury of peers,�� and even to torture�� to obtain a declaration of guilt from

23 Juries were developed at least as early as the Dark Ages in England. The Anglo-Saxons passed on the system to the modern age; however, they may have been influenced by the customs of the Danes or earlier Saxon tradition. John Makdisi’s theory is that trial by jury traces its origin directly to Islamic legal institutions. John A. Makdisi, The Islamic Origins of the Common Law, 77 N.C. L. Rev. 1635, 1713-1731 (1999). The English king Ethelred the Unready set up an early legal system through the Wantage Code of Ethelred, one provi- sion of which stated that the twelve leading thegns (minor nobles) of each wapentake (a small district) were required to swear that they would investigate crimes without a bias. These juries differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves. King Henry II took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. Unlike the modern jury, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the “grand jury” through his Assize of Clarendon. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred to a “justice in eyre,” a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a trial by ordeal. When the trial by ordeal collapsed, the juries under the assizes began deciding guilt as well as providing accusations. Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. Many English colonies adopted the jury trial system including the United States. Available at http://www.fordham.edu/ halsall/source/aclarendon.html (last visited October 28, 2007); also http://en.wikipedia.org/wiki/Jury_trial (last visited May 30, 2006).

24 In Continental Europe, judicial torture became the law of proof, while in England, where the jury trial was the rule, alternative ways were also present. The common law courts initially took the view that an accused person was not obliged to submit to trial by jury. It had started as an alternative to trial by ordeal which an accused could choose. Even with the abolition of trial by ordeal that remained the case. Submitting to the authority of the court was voluntary but there was no alternative form of trial. Clearly such an easy way of avoiding due process presented a bit of an obstacle to the “administration of justice.” And like continental torture, the English devised a method of compelling assent. Following the passing of the Statute of Westminster 1275 those charged with capital offences who refused to plead were subjected to peine forte et dure. This involved the placing of pro- gressively heavier stones on the chest until a plea was entered or the accused person died. Although peine forte et dure was strictly speaking not judicial torture – i.e. not designed to elicit evidence and was more akin to a punishment – it demonstrates that the English were no less inclined than their continental counterparts to use compellingly painful methods when procedure got in the way of process. Peine forte et dure was abolished by statute in 1772. In addition, although torture to gather evidence was never systemati- cally employed in England, the Privy Council and the Crown, when sedition threatened between 1540 and 1640, issued a total of 81 warrants authorizing the use of torture. 52 of the cases involved crimes against the State and torture was most commonly applied to extract information about accomplices. However, 22 cases concerned ordinary felonies and the primary purpose in these cases was to extract confessions. And although Sir Edward Coke was proud that the common law did not permit torture, he was prepared,

9The Problem

the accused. In the same year, King John signed the Magna Carta, and in its Chapter 39, which is considered to be one of the most influential clauses, the trial by jury be- came an implied right:

No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land.��

The Magna Carta has been celebrated as the “palladium of English/British liberty,” a legal statement of enduring influence in the jurisprudence of not only common law countries, and it is often seen as the origin of the entitlement to “due process of law.”�� The Great Charter “assumed legal parity among all free men to an exceptional degree.”�� Still, the point has been made, that the Magna Carta itself did not contain the words “due process,” that “free men” was a restricted category, and that it provides

on a number of occasions, to serve as a commissioner to torture under the Royal war- rants. See D. Jardine, A Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth (1837), available at http://www. spr-consilio.com/campbellsmith6.htm (last visited on June 4, 2006).

25 This translation stems from Justice Scalia’s concurring opinion in Pacific Mutual v. Ha- slip, 499 U.S. 1, 28 (1991) (Scalia, J.). In its original Latin, chapter 39 reads: Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre. Available at http://www. magnacartaplus.org/ mag- nacarta/latin.htm#latin-text.

Andrew T. Hyman, in The Little Word “Due,” 38 Akron L. Rev. 1 n. 16 (2005) elucidates the history of its translation from the Latin original by the courts. The Magna Carta was written in Latin, and the word “vel” between “legale judicium parium suorum”[“Judgment of his Peers”] and “legem terre” [“Law of the Land”] has sometimes been translated as “or” (e.g. in Pacific Mutual v. Haslip, as cited supra) and sometimes as “and” (see, e. g., Duncan v. Louisiana, 391 U.S. 145, 169 (1968) (Black, J., concurring). New York’s constitutional convention of 1777 addressed this issue: Gilbert Livingston successfully proposed a clause along the lines of the Magna Carta, which was then amended to change “and the judg- ment of his peers” to “or the judgment of his peers.” See 1 Charles Z. Lincoln, Consti- tutional History of New York 522 (1906). The Virginia Declaration of Rights of 1776 also guaranteed, in section VIII, that “no man be deprived of his liberty, except by the law of the land or the judgement of his peers.” Available at http://www.yale.edu/ lawweb/ avalon/virginia.htm. Jon Roland comments: “These usages suggest that ‘law of the land’ is distinguished from jury verdicts. However, in the Fifth and Fourteenth Amendments it is apparent that ‘law of the land’ and ‘judgment of his peers’ have been combined in the phrase ‘due process.’” Jon Roland, Due Process, in 1 Encyclopedia of American Civil Liberties 456, 457 (Paul Finkelman ed., 2006).

26 Harry Evans, Bad King John and the Australian Constitution, Commemorating the 700th anniversary of the 1297 issue of Magna Carta, Occasional Lecture 17 October 1997, avail- able at http://www.aph.gov.au/ senate/ pubs/occa_lect/flyers/171097.htm.

27 J.C. Holt, Magna Carta 278 (2nd ed. 1992).

10 Chapter I

that “free men are not to be dealt with except in accordance with law.”�� Harry Evans has stated, drawing on U.S. Supreme Court jurisprudence: “According to law simply means in accordance with whatever the law provides; due process of law implies what the law should provide.”�� Still, the obligation of treatment according to the law of the land was a great innovation, and it has taken on the meaning of treatment in accordance with the common law, including due process.�0

The phrase “due process of law” as well as the removal of the restrictions of the guarantee to “free men” are, however, to be found first in a statute of Edward III of the year 1354. This enactment, entitled “Liberty of the Subject,” reads, in relevant part:

[N]o man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.��

Though these guarantees were lost sight of temporarily, the Magna Carta and, to a lesser degree, this statute came back with renewed importance as seventeenth cen- tury monarchs trespassed on English liberties.�� The drafters of the American Bill of Rights chose the phrase “due process of law,”�� making it an American axiom.

Key elements of the legal guarantee of due process have also been derived from several other distinct principles of law, mostly of Roman law origin, such as nemo iudex in propria causa (no man should be judge in his own cause, which can be con- strued to be related to the impartiality of the judiciary); res judicata (a case decided should not be relitigated: parallel to double jeopardy prohibition in criminal law); au- diatur et altera pars (may the other party also be heard, analogous to equality of arms and cross-examination); nullum crimen, nulla poena sine lege (no crime, no penalty without a law, stating that the penal law cannot be enacted retroactively); nemo te- netur seipsum accusare (no one is bound to accuse himself ) or its variation accusare

28 Evans, supra note 26. 29 Id. 30 In the Latin text of the Magna Carta, as the language was used then, we find the phrase

“legem terre,” which means “Law of the Land.” It was Sir Edward Coke, a most influential author of commentaries on English statutes, a contemporary of Sir Francis Bacon and Shakespeare, who wrote that “law of the land” in the Magna Carta “meant common law,” the ancient, customary laws, and other enacted laws, “and the common law required due process.” Edward Coke, Institutes of the Laws of England 2:50 (London, 1648).

31 Cited in Evans, supra note 26; see also Roland, supra note 25, at 456. 32 Orth, supra note 6, at 7 (2003). The 1628 Petition of Right stated: “… no freeman may be

taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.” See also Evans, supra note 26 (noting that the Petition of Right also cited the 1354 statute separately).

33 The U.S. Constitution, in the Fifth Amendment, followed by the Fourteenth, mandates that “no person shall … be deprived of life, liberty, or property, without due process of law.”

11The Problem

nemo se debet, nisi coram Deo (no one is bound to accuse himself except to God, legal maxims banning mandatory self-incrimination and denoting that any accused person is entitled to make a plea of not guilty, and also that a witness is not obliged to give a response or submit a document that will incriminate him); in dubio pro reo (in doubt, on behalf of the accused; this saying expresses the judicial principle that in case of doubt the decision must be in favor of the defendant, i.e. anyone is innocent until there is proof to the contrary: presumption of innocence); non bis in idem (not twice in the same thing – a legal principle forbidding double jeopardy). Though both law and legal literature developed and became ever more sophisticated, these max- ims have preserved their longstanding legal status and attractiveness, and I will be coming back to some of these maxims in the downstream flow of this paper.

Nevertheless, the mere existence of these principles does not necessarily mean that they were actively observed and applied; nor do they offer a ready-made solution for the courts.�� Let us consider only one of the above mentioned maxims: accusare nemo se debet, nisi coram Deo, an early guarantee against self-incrimination. How- ever, in Europe, for about five hundred years, replacing in the mid-thirteenth century the procedure of proof through ordeal, one of the harshest laws imposing mandatory self-incrimination, confession through judicial torture, was a routine feature of the law of proof.�� It purported to achieve absolute certainty for human adjudication. While it was aimed at safeguarding the procedures of distinguishing guilt from in- nocence, as the suspect would be disclosing information that “no innocent person can know,”�� it turned to be a macabre tool testing the accused’s capacity to bear pain rather than his sincerity. For this reason, leading philosophers of the Enlightenment

34 Lord Wright, 1940. Whereas Lord Esher had spoken against Latin maxims since 1887: “I need hardly repeat that I detest the attempt to fetter the law with maxims. They are almost invariably misleading; they are for the most part so large and general in their lan- guage that they always include something which really is not intended to be included in them.” Both references available at: http://www.vancouverfamilylaw. com/maxims.html.

35 See generally John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (2006).

36 These words come from a celebrated German statute of 1532. John H. Langbein, Torture and Plea Bargaining, in Philosophy of Law 349, 351 (Joel Feinberg & Hyman Gross eds., 5th ed. 1995).

12 Chapter I

such as Voltaire�� and Beccaria�� were ardent critics of the law of torture and also, generally, of the criminal law in Europe and, particularly, France. In any event, most of these legal maxims quoted above have resisted the ravages of time, and they have also come to acquire additional meanings as they go through court interpretations and different circumstances of their legal context.

When analyzing criminal procedure, we are faced with the rise and fall of certain paradigms,�� only to be replaced by new ones that still retain part of the old. All this

37 Voltaire (1694–1778), a French writer, essayist, deist and philosopher, in his Commen- tary on Beccaria’s Crimes and Punishments (1766), noted that “[t]he torture is terrible…. Ingenious punishments, in which the human mind seems to have exhausted itself in order to make death terrible, seem rather the inventions of tyranny than of jus- tice.” This is how he describes the criminal process: “A man is accused of a crime. At once you lock him up in a wretched dungeon; you allow him no communication with any one; you load him down with irons as if you had already found him guilty. The witnesses who testify against him are heard in secret; he is confronted with them only for a moment; before hearing their testimony he must state his objections to them in detail; at the same time, he must name everyone who might support these objections, none of which are admitted after the reading of the testimony. If he shows the witnesses that they may have exaggerated certain facts or omitted others, or have been mistaken in some of their details, the fear of punishment will make them persist in their perjury. If circumstances described by the accused during interrogation be reported differently by the witnesses, that will be quite enough for ignorant or prejudiced judges to condemn an innocent man. What man is there who is not terrified by this procedure? What just man can be certain of not being crushed by it? O judges! If you want accused innocent men not to flee, give them the means of defending themselves.” Available at http://www.constitution.org/volt/ cmt_beccaria.htm .

38 Cesare Beccaria (1738-1794), a Milanese official, Enlightenment philosopher and one of the fathers of utilitarianism, wrote in his Essay on Crimes and Punishments (1764), Chap XVI: “No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorize the punishment of a citizen so long as there remains any doubt of his guilt? This dilemma is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved.” Available at http://www.fordham.edu/HALSALL/ MOD/18beccaria.html .

39 Abolition of judicial torture was one of them, and, according to Langbein, it came as a result of the increasing professionalization of the continental judiciary and the develop- ment by them of alternative non-capital forms of punishment that allowed the continen- tal systems to gradually let go of the practice. As less draconian penalties were imposed, the requirement of confession as an element of proof could be dispensed with and so could torture as a means of eliciting evidence. For a time the continental system operated two systems of criminal punishment – one based on confession attracted capital penalties and the other, based on wider categories of evidence, attracted new, ostensibly less severe penalties. Over the course of the second half of the 18th century, the continental systems had evolved their laws of proof sufficiently so that torture could be abolished. A work-

13The Problem

happens, as human generations witness clashes of, as well as dialogue among, legal traditions, institutions, tendencies and influences. Due process is no exception: it has come to change from an ambiguous term into a full-fledged practical legal concept running over several provisions, no matter how confused seems to be the distribu- tion of the ideas involved in them, the haziness of the language used, and notwith- standing the intricacy with which they are to be “construed and applied;”�0 it has come to expand its protection establishing standards through the toilsome and refin- ing work of lawyers both in domestic and international courts. Over the years, due process has developed as a barricade against “violations of natural justice,”�� in order to ensure safeguards against the abuses by governments, arbitrary rulings and secre- tive proceedings of Star Chamber�� type tribunals around the world. It would be fair to note in this section the farcical nature of trials in courts of Communist regimes,�� and their notorious condemnations of political opponents of the government mostly relying on self-incrimination under torture and other pressure. Unfortunately, such

able system had developed which no longer relied on confession evidence. See generally Langbein, supra note 35.

40 J. E. S. Fawcett, The Application of the European Convention on Human Rights 85 (2d ed. 1987).

41 Orth, supra note 6, at 49. 42 The Star Chamber (Latin: camera stellata) was an English court of law at the Royal Palace

of Westminster that sat between 1487 and 1641 when the court itself was abolished. The power of the Court of Star Chamber grew considerably under the House of Stuart, and by the time of Charles I of England it had become synonymous with misuse and abuse of power by the king and his circle. Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. In the Star Chamber the council could inflict any punishment short of death, and frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears. … Retrieved from http://en.wikipedia.org/wiki/Star_Chamber (last visited May 30, 2006). More on the Star Chamber in 25 Encyclopedia Britannica 796 (Cambridge, 11th ed. 1910).

43 See comments related to Moscow “show trials” of 1936 and 1938, in Susan Marks & Andrew Clapham, International Human Rights Lexicon 158 (2005). Also, in Albania, in addition to numerous extra-judicial executions of anti-Communists and the clergy, mostly Catholic, several charade trials were set up in the years 1945 (gjyqi spe- cial/ special trial), 1947 (gjyqi i deputeteve/ the trial of members of parliament), and 1949 (gjyqi i Koci Xoxes/ the trial of Koci Xoxe) etc., where numerous persons, including a pregnant woman, were given the death penalty as the “enemies of the people.” See Ese per Diktaturen, in Gazeta 55, 23 Shtator 2002 (Essay on Dictatorship, in Newspaper 55, Sept. 23, 2002; translated by the author), available at http://www.forumishqiptar.com/show- thread.php?t=6048 . See also Goditja ndaj Deputeteve te Opozites, in Gazeta Shqipetare, 5 Tetor 2004 (The Blow against the Members of Parliament of the Political Opposition, in Gazeta Shqipetare, Oct. 5, 2004; translated by the author), available at http://www. albasoul.com/modules.php?op=modload&name=News&file= article&sid=1533.

14 Chapter I

contrivances are still employed to date, at the service of tyrants of all kinds and per- suasions.��

From the time when the American constitution writers picked up the fancy phrase from the rich tradition of English constitutionalism in which these concepts were formed,�� it has never stopped to intrigue and keep us busy wrestling with what we would like to consider the true meaning of “due process of law.” In the aggregate, I consider it fair to note that constant changes in due process, be they additions or restrictions, came out of the necessity of the legal system to keep abreast with chang- ing values�� immanent in, and emanating from, society, and such judicial responses continue to adjust themselves to ever changing perceptions and social attitudes of the community towards facts of life,�� as we struggle to properly balance order and liberty. So, is it easy or difficult nowadays to rebut the once trendy sensitivity that the legal system entertains criminal defendants at the expense of the social order?

B. Defining States of Emergency

It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a posi- tion in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing civil liberty. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.��

44 See the Ken Saro Wiwa case in Nigeria, where the African Commission of Human and Peoples’ Rights found that in all stages of proceedings, almost every component of the right to a fair trial was violated, including the denial of the defendant’s right to appeal. ACHPR, International PEN and Others (on behalf of Ken Saro Wiwa, Jr. and Civil Liber- ties Organisations) v. Nigeria, Communications Nos. 137/94, 139/94, 154/96 and 161/97, decision adopted on 31 October 1998, available at http://www1.umn.edu/humanrts/ af- rica/ comcases/137-94_139-94_154-96_161-97.html.

45 Orth, supra note 6, at 6. 46 So, in the late seventeen century, John Locke refuted the absolute power of the monarch

and the theory of the Divine Right of Kings, and he constructed a system within which citizens had rights that could, with moral justification, be asserted against the state. See J.G. Riddall, Jurisprudence 168 (1999). Further on in time, the prevailing interpreta- tion of the scope of rights by courts has shown that societal values and conditions, as well as prevailing morals, allow for an evolutionary and dynamic understanding of legal concepts: they can, to a degree, be extended or limited. See Roza Pati, Rights and their Limits: The Constitution for Europe in International and Comparative Legal Perspective, 23 Berkeley J. Int’l L. 223, 244 (2005).

47 Consider the acceptance of judicial torture, and then its prohibition as jus cogens; the acceptance of death penalty, and its wide abolition. Also compare the dynamic nature of interpretations of the U.S. Constitution in Chief Justice Marshall’s famous dictum in McCulloch v. Maryland that, after all “we must never forget that is a constitution we are expounding.” 17 U.S. 316, 407 (1819).

48 William H. Rehnquist, Jr., All the Laws but One: Civil Liberties in Wartime (1998).

15The Problem

It would indeed be ironic if, in the name of national defense, we would sanction the subver- sion of one of those liberties…which makes the defense of the Nation worthwhile.

United States v. Robel, 389 U.S. 258, 264 (1967)

Self-preservation is a natural impulse, when confronted with the ultimate state of necessity. Individuals claim to be justified when they resort to whatever means nec- essary to defend themselves against a threat to their very existence. For them, in that situation, the limits of the legal system do not count. Not kennt kein Gebot.��

This argument has been transferred from the individual sphere to the realm of the community. Since time immemorial, groups of humans have defended themselves against outside threats using all means necessary. This was true for tribes, ancient empires, modern nation-states, democracies and dictatorships. In the state of need, the law with its restraints receded. As the Romans said, inter arma silent leges.�0

Beyond war, internal threats to the established order have given similar rise to arguments of powers of preservation of the community outside the established chan- nels and contents of the law. For the modern nation-state, Carl Schmitt has made the most focused argument for unlimited emergency powers of the state, legitimizing what he called a “dictatorship” understood as a means of defense against a threatened legal order. For him, the emergency was the hour of the Executive Branch.�� When this ultimate need to defend the community arose, the other branches of government had to at least suspend their powers or cede them to a monocratic, vertically inte- grated leader or leadership system.

49 Notrecht, in Friedrich Kirchner, Wörterbuch der philosophischen Grundbegriffe 397 (1907). Literally translated, this old German maxim means “Necessity knows no law.”

50 “In times of war, the laws fall silent.” The famous Latin phrase has been attributed to Cic- ero and his oration Pro Milone, available at http://www.thelatinlibrary.com/cicero/milo. shtml.

51 Cf. Carl Schmitt, Die Diktatur (1921); id., Politische Theologie (1922). See also Wolfgang Durner, Antiparlamentarismus in Deutschland 145 (1997) („diese Ausrichtung am permanenten Ausnamezustand als Stunde der Exekutive war bereits ein antiparlamentarischer Lieblingstopos von Carl Schmitt in Weimar“). In a comparative study of 1936, Carl Schmitt proclaimed that the hour of the removal of the separation be- tween the legislative and the executive branch had arrived. Carl Schmitt, Vergleichender Überblick über die neueste Entwicklung des Problems der gesetzgeberischen Ermächtigun- gen (Legislative Delegationen), 6 ZaöRV 252, 266 (1936). The designation of a national emergency as „die Stunde der Exekutive“ was expressly used by German Minister of the Interior Gerhard Schröder in his justification of a 1958 bill to amend the 1949 German Basic Law with provisions for a state of emergency. Bundesminister Gerhard Schröder, Bundestag, Sten. Ber., 3. WP., 124. Sitzung vom 28.9. 1960, S. 7177; BTDrucks. III/1800, cited in Eckart Klein, § 169: Der innere Notstand, in VII Handbuch des Staatsrech- ts 387, 392 n. 25 (Isensee & Kirchhof eds., 1992). See also Hans-Jürgen Lange, In- nere Sicherheit im politischen System der Bundesrepublik Deutschland 82 (1999).

16 Chapter I

Domestic legal systems largely accommodate that claim of individuals, through recognition of a broad claim to self-defense. For states at war, particularly those with democratic systems and separations of powers, constitutions allowed for concentra- tion of power in the chief executive, as seen, for example, in the U.S. President’s role and original power as Commander-in-Chief.�� Internationally, war itself was largely available as an instrument of foreign policy until the United Nations Charter out- lawed aggression, but left alive the states’ inherent right to self-defense. Despite the limitations on the justifications for going to war (ius ad bellum), and the longer- standing curbs on the means and ways to conduct it (ius in bello), the freedom of states to act in cases of ultimate threat to their existence still, at times, receives af- firmation, as in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons who stated, in 1996, that “it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weap- ons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake.”��

War as engaging other communities always involved a component of outside threat,�� which left participating entities existentially vulnerable. Inside threats to es- tablished power structures, democratic or otherwise, could be equally grave, as they might imperil peace and tranquility of the land, its chosen structure of government, and ultimately, government itself. States have variously characterized the special legal order which they introduced to manage such crisis situations, using concepts such as “state of exception,” “state of emergency,” “state of alarm,” “state of siege,” “martial law,” etc. What these legal regimes have in common is the resort, in many cases, to special powers of arrest and detention, to trials before military tribunals, sometimes the enactment of special criminal laws, at times applied retroactively, that limit the right to freedom of expression, association and assembly. History has further shown that, many times, in situations of turmoil, states have opted for the use of torture or other forms of ill-treatment from those considered foes of the state in order to extract information or confessions from them. At times, states have resorted to abductions and extrajudicial killings, and sometimes human beings were stripped of their pro- tections in court when states ousted the judicial review of government actions via, e.g., the writ of habeas corpus, for victims of arbitrary arrest and detention consid- ered their enemies.

52 U.S. Constitution, Article II (1787). 53 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, para. 97 (Adv. Op., July

8, 1996). 54 The same extraordinary situation exists when the state engages in massive violations of

basic human rights, thus failing to keep its responsibilities as a sovereign member of the international legal system. The international community then reacts through diplomatic pressure, economic sanctions and ultimately even humanitarian intervention, which re- mains relevant despite some views that in the era of the war on terror “the national inter- ests dominate foreign security policy.” See generally Taylor B. Seybolt, Humanitar- ian Military Intervention: The Conditions for Success and Failure (2007), especially at 268.

17The Problem

In modern constitutional times, the question arose as to whether a state structur- ing its political authority for the state of normalcy and internal as well as external peace should foresee and to some degree regulate changes of authority for this time of threat. Eckart Klein has argued for the “constitutionalization” of such states of exception, as governmental authorities would be given appropriate legal yardsticks to orient their behavior during such crises, avoiding their tumbling into lawlessness, and guiding their return to the state of normalcy.��

As to this issue, an early, but still thought-provoking study of the history of West- ern emergencies was undertaken by Clinton Rossiter.�� He starts with the observation that it is nations that have already achieved some level of democracy and still want to preserve it against an internal or external threat that grapple with the idea of estab- lishing government powers for crisis times. He then describes certain types of emer- gency regimes and resulting effects in democratic orders. Referring to the French Revolution and its state of siege,�� he grippingly notes: “No institution of crisis govern- ment existed under the ancient regime. It is unnecessary to suspend rights that do not exist or augment powers that are already absolute.”�� Consequently, it is the people living in democracies that have a better understanding of, and are more reluctant to let go of, their freedom and liberty achievements. Siding with the French model, he maintains the position that there should be formal legalities observed when resort- ing to emergency powers and there should be a strong reliance upon the legislature�� to restrain abuses, which ordinarily would facilitate themselves by patterns like the military taking over police powers, the military courts exercising jurisdiction over civilians, and the issuance of overbroad orders and rules by the executive divert- ing from the legislature’s authority on such matters. In this context, Rossiter also makes reference to the Weimar Republic and its Constitution. Its Article 48 formal- ly allowed for, and described, emergency powers. This provision, however, did not prevent the President from dissolving the Reichstag that could have controlled the

55 Eckart Klein, Der innere Notstand, supra note 51, at 389. Rejecting the maxim “Not kennt kein Gebot,” Klein would argue for limitations upon emergency powers in crises not covered by the written constitution, limitations that orient themselves at the need to safeguard the highest values protected by the constitution. Id. at 411-413. Short of such system-wide crises, there are also malfunctions of the constitutional order, which can usually be dealt with by the institutions of the state of normalcy. Eckart Klein, § 168: Funktionsstörungen in der Staatsorganisation, in VII Handbuch des Staatsrechts 361 (Isensee & Kirchhof eds., 1992)

56 Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948). In this study, the author describes the emergence of “constitutional dictatorships” in the United Kingdom and the United States in the nine- teenth and early twentieth centuries.

57 The term itself comes from the time of the French Revolution where unlimited powers were given to a general in command of a besieged fortress. Later, such military powers were extended to a political state of siege exercising similar powers over urban popula- tions during internal or external conflicts. See Rossiter, at 80-81.

58 Id. at 80. 59 Id. at 86-87.

18 Chapter I

emergency powers, issuing decrees at his political whim, and delaying the election of a new Reichstag,�0 ultimately paving the way for Hitler.�� Some scholars also did not agree with Rossiter’s conclusion recommending formal provisions for the state of emergency based on the French experience, since the French legislative control was illusory and did not really provide an effective check upon executive power.��

There seemed to have been a different approach to emergency powers in the com- mon law tradition. In the U.S., for instance, like in the U.K., there was no precise definition of emergency powers. In the nineteenth century, the President acted on his discretion “without obvious basis in his delegated constitutional powers,�� and sometimes on the basis of specific ordinary legislation�� passed by Congress.”�� Dur- ing the twentieth century, there has been an issuance of “broadly worded emergency laws that delegated expansive powers to the executive to issue regulations and to undertake unusual measures to cope with the crises….[A] high degree of legislative acquiescence resulted in an actual concentration of power in the President. All this occurred without any explicit change in the constitutional structure or any formal

60 Id. at 72. 61 For a pertinent historical analysis, see Peter Blomeyer, Der Notstand in den letz-

ten Jahren von Weimar (1999). 62 See Joan Fitzpatrick , Human Rights in Crisis: The International System for

Protecting Rights During States of Emergency 26 (1994), also referring to Paul Leroy, L’organisation Constitutionnelle et les Crises 74-78 (1966). For other important theories on states of emergency, see Frederick M. Watkins, The Problem of Constitutional Dictatorship (1940); Carl J. Friedrich, Constitutional Government and Democracy (1941); Herbert Tingsten, Les pleins pouvoirs (1948); and, most recently, Giorgio Agamben, State of Exception (Kevin Attell tr., 2005). The last author locates emergencies, or, as he calls them, “states of exception,” in a zone of uncertainty between law and anomie similar to the Roman iustitium, which denoted a temporary halt of the entire legal system, where all organs of the law stopped their activity. He critiques prior authors in the field:

The confusion of state of exception and dictatorship is the limitation that prevented both Schmitt in 1921 and and Rossiter and Friedrich after World War II from resolving the apo- rias of the state of exception. In both cases, the error was self-serving, since it was certainly easier to justify the state of exception juridically by inscribing it in the prestigious tradition of Roman dictatorship than by restoring it to its authentic, but more obscure, genealogical paradigm in Roman law: the iustitium. From this perspective, the state of exception is not defined as a fullness of powers, a pleromatic state of law, as in the dictatorial model, but as a kenomatic state, an emptiness and standstill of the law.

Giorgio Agamben, at 47-48. 63 Such acts include, inter alia, the ordering of a blockade in Southern ports by President

Lincoln, the issuance of the Emancipation Proclamation in 1862, prior of its approval by Congress, the issuance of the “Lieber Code” for the armies in the field, though making rules for armed forces was a power of the Congress. Rossiter, supra note 56, at 226- 235.

64 Such was, for instance, the suspension of the writ of habeas corpus in the areas under martial law, Act of March 3, 1863. See Rossiter, supra note 56, at 235-236.

65 Fitzpatrick, supra note 62, at 27.

19The Problem

suspension of liberties.”�� Indeed, a majority holding in the famous Steel Seizure Case of 1952 can be cobbled together from the three opinions in dissent and two opinions in the majority which would agree that a President has the implied power to respond to grave and imperative national emergencies.�� It is to be noted, however, that Jus- tice Robert H. Jackson, back from his experience as Chief Prosecutor in Nuremberg, explicitly rejected that route of reasoning. Enlightened by his experiences with the Weimar Constitution’s arguably seamless transition into Hitler’s dictatorship using Article 48’s emergency powers, as well as, say, Argentina’s tolerance of multiple coups d’Etat under the emergency provisions of its 1853 Constitution, he formulated, in timeless prose, that emergency powers “tend to kindle emergencies.”��

As to international law, prior to 1945, it was basically up to the sovereign individual states, except from situations involving foreign nationals under the law of diplomat- ic protection, to determine how they should address situations of domestic emer- gencies. Since 1945, the human rights revolution has punctured this sovereignty of states to act as they please to confront internal threats. The need arose to determine whether, and, if yes, which, accommodations ought to be made to legitimate con- cerns of states facing groups intent on imposing their goals through violence, skirt- ing established avenues of human rights and democracy. In particular, when states used special powers of arrest and detention, often unlimited in duration and severe in conditions, as well as trials before special tribunals with special procedures, while eliminating access to independent and impartial courts of law, traditional remedies and procedural protections, it was often hard to reconcile such measures with time- honored guarantees of due process.

International human rights instruments do try to envision, and legally encompass, this state of emergency and confine the potentially unlimited use, or abuse, of gov- ernmental power. They strike a balance between the need of the state for self-preser- vation and the individual right to dignity and freedom. They, essentially, put the onus of declaring an emergency on a state, limit that declaration to certain conditions, and except certain human rights guarantees from modification even in situations that threaten the life of a nation. Thus, while derogating from certain rights in times of emergency is legal under international law, the abusive use of the extraordinary pow- ers that such situations confer on the states remains at all times unlawful. Hence, the need for a well-balanced power of emergency, the clarification and containment of abuse, and an abiding respect for human rights, whenever states resort to anti-sub- versive strategies in efforts to restore constitutional order and internal security.

Under these human rights regimes, to be examined in detail later in this study, there is thus a consensus about limiting the grounds justifying the proclamation of states of emergency to those in effect threatening the life of a nation. While a clear cut

66 Id. at 28. 67 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 68 Id. at 650.

20 Chapter I

rule�� or an exhaustive list�0 of grave national life-threatening circumstances does not exist nor can or should necessarily be formulated, some narrowing of this concept can be reached by an analysis of where positive international law has included the situation of emergency in its normative provisions. The places for this inclusion are the derogation provisions in the various universal and regional human rights treaties as well as the pertinent jurisprudence of their respective monitoring bodies. Look- ing at four major universal or regional instruments of human rights protections, we encounter terms like “public emergency which threatens the life of a nation,”�� “war or other public emergency threatening the life of the nation,”�� “war, public danger,��

69 In 1984, the International Law Association Committee in its study on states of emergency commented as follows: “It is neither desirable nor possible to stipulate in abstracto what particular type or types of events will automatically constitute a public emergency within the meaning of the term; each case has to be judged on its own merits taking into account the overriding concern for the continuance of a democratic society.” ILA Paris Report (1984), at 59, para. I, quoted in Jaime Oraá, Human Rights in States of Emergency in International Law 31 (1992).

70 Since early on, studies have shown efforts made to list grounds on which a state of emer- gency can be proclaimed. For example, a study of the UN Commission on Human Rights, E/CN. 4/826 5 Jan. 1962, Study of the Right of Everyone to be Free form Arbitrary Arrest, Detention and Exile, p. 257, in paragraph 754, recapitulates the following relevant cir- cumstances: “International Conflict, war, invasion, defense or security of the State or parts of the country; civil war, rebellion, insurrection, subversion, or harmful activities of counter-revolutionary elements; disturbances of peace, public order or safety; danger to the constitution and authorities created by it; natural or public calamity or disaster; danger to the economic life of the country or parts of it; maintenance of essential supplies and services for the community.” See also Daniel O’Donnell, States of Exception, 21 Int’l Comm’n Jurists Rev. 52, 54 (1978).

71 ICCPR, Article 4. 72 ECHR, Article 15. 73 The notion of public danger contained in the American Convention on Human Rights

(ACHR) and which is not explicitly found in other treaties refers to natural calamities such as floods, earthquakes etc, that do not necessarily threaten the internal or external security, but do cause problems of such an extent that would justify proclamation of a state of emergency. This was added on the basis of a proposal by El Salvador at the San José Conference that created the ACHR. For this and more on the legislative history of the American Convention, see The Inter-American System (Thomas Buergenthal & Robert E. Norris eds., 1984). Id. Vol. I, booklet 12, at 135, regarding the minutes of the 14th session, 17 November 1969.

21The Problem

or other public emergency that threatens the independence or security�� of a State party.”��

Such terms are relatively broad and do leave room for different interpretations of “life-threatening” vel non situations of the nation. Should such interpretation be left exclusively to the government of any nation? As the representative from Chile had pointed out during the drafting process of the ICCPR, “it [is] difficult to give a precise legal definition of the life of the nation [but it is] significant that the text did not relate to the life of the government or of the state.”�� Logically, it implies that “the popula- tion per se is menaced by some grave danger.”�� In the same vein, the ILA Committee’s observation that each emergency case “has to be judged on its own merits taking into account the overriding concern for the continuance of a democratic society,”�� seems to be going in the right direction. A better understanding of such concepts can be gained by looking back at the intentions and arguments stipulated and forwarded by the working groups who drafted these treaties. Reviewing the travaux préparatoires of these treaties displays a possible contradiction between the genuine concern of potential abuses of such phrases on one side, and the risk of being too specific and ex-

74 The notions of a threat to the independence or security of a state party contained in the ACHR differ from the life of the nation contained in other treaties. While it does not entirely leave it to the whim of the laws of a state to determine an emergency, it nev- ertheless leaves room for quite subjective interpretations. Some have considered them to be broader and less restrictive than the emergency envisioned in other treaties (see Oraá supra note 69, at 14; see also P.P. Camargo, The American Convention on Human Rights, Hum. Rts. J. 356 (1970)), others have found the lack of precision in the doctrine of national security in Latin American States to be a source of justifications on the part of some Latin American governments for their declarations of states of emergency on grounds of security, consequently bringing about many violations of human rights (see International Commission of Jurists, States of Emergency: Their Impact on Hu- man Rights 416 (Geneva 1983); see also H. Montealegre, La Seguridad del Es- tado y los Derechos Humanos (Santiago de Chile, 1979), referred to in Oraá, supra note 69, at 15, n.23). The problem of human rights violations during states of emergency in Latin American States has been a constant concern of the Inter-American Commis- sion on Human Rights. The Resolution on the Protection of Human Rights in Connec- tion with the Suspension of Guarantees or “State of Siege” (see OAS Ser. L/V/II. 19, doc. 32 (16 May 1968) based on the report of Commissioner Martins with the same title (see OAS, Ser. L/V/II. 15, doc. 12 (11 Oct. 1966)) became the basis for discussion when drafting the derogation clause, and is important in its interpretation. These documents and their stipulations reveal conformity with the emergency standards of other pertinent treaties, i.e. a reference to a “war or other serious public emergency threatening the life of the na- tion or the security of the state,” as noted in the above-mentioned Resolution.

75 ACHR, Article 27. Note that there is no derogations clause in the African Charter on Human and Peoples’ Rights, and the African Commission on Human and Peoples’ Rights has argued that the state parties cannot derogate from their treaty obligations even in emergency situations. See infra, Chapter IV. A.4.

76 U.N. Doc. E/CN.4/SR.330, at 4 (emphasis added). 77 Joan Fitzpatrick , supra note 62, at 10. 78 ILA Paris Report (1984), supra note 69.

22 Chapter I

clusive on the other; hence the option for a broader term,�� while still preserving the limits on actions taken by states in such times of emergency and their international accountability for such acts.

Beyond this genetic and other treaty research, to be effectuated below, we may recognize that positive international law, as any law, is subject to change, and that its content – as here formulated in rather open-ended terms – , might be subject to dif- ferent interpretations and progressive development, as the need arises. Thus, in the context of emergency limitations on human rights regimes, in particular, due process guarantees, it is important to take a broader look at the problem as such.

To this end, it might help to review several intellectual efforts at unpacking the concept of emergency and elaborating some typology of emergencies and their place, if any, in the human rights regime.

An interesting attempt to categorize emergencies is made by the Special Rappor- teur Nicole Questiaux in her study titled: “Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emer- gency,”�0 commissioned by the United Nations Sub-Commission for the Promotion and Protection of Human Rights. She developed a highly formalized ideal “reference model,” according to which there should be a formal proclamation,�� defining legally all the permissible grounds for exercise of emergency powers, respective time limits, description of non-derogable rights and/or other rights clearly subject to suspen- sion or restriction, respective measures of control, and any potential changes in the scope of powers of various government institutions.�� She then classified five digres- sions from her preferred ideal model: 1) the formal emergency not notified accord- ingly; 2) the de facto emergency, where rights are suspended without notification or proclamation of emergency, or continue to be suspended after the emergency has been lifted; 3) the permanent emergency characterized by continued and decreas- ingly valid extensions of emergency state; 4) the complex emergency, characterized by overlapping and confusing legal regimes through partial suspension of constitu- tional norms and issuance of complicated, voluminous, far-reaching decrees;�� 5) the institutionalized emergency used by an authoritarian government to prolong an extended transitional emergency regime, questionably purporting to try to return

79 An excellent account of the discussions on the definition and description of an emer- gency is to be found in Oraá, supra note 69, at 11-16.

80 U.N. Doc. E/CN.4/Sub.2/1982/15 (hereinafter the “Questiaux Report”). 81 Common law scholars would argue that common law states may not require a formal

proclamation of a state of emergency and would still impose extraordinary security leg- islation by a compliant legislature to manage a crisis situation. They would further argue that such a crisis could also be managed very effectively through increased application of prior-enacted permanent national security legislation, and even without any suspension of constitutional provisions, or alterations in the separation of powers. See Fitzpatrick, supra note 62, at 6 and 22.

82 Questiaux Report, at paras. 73-95 83 As examples of this type, the author mentions the emergency situations of Turkey and

Brazil. Questiaux Report, at 119-128.

23The Problem

democracy and restore constitutional order. She recommends the proliferation of permanent national security laws that would in turn limit chances for any of her five identified deviations. Some scholars have found this typology to be incomprehensive, and lacking in understanding of common law ways of handling a crisis,�� while others considered it overall a “valuable study.”��

Another categorization of interest within this study is the three groups of com- mon law type non-declared emergencies initially drafted by Professor Tom Hadden of Queen’s University, Belfast. They include: 1) low-level emergencies, in which special powers are introduced to deal with a relatively isolated terrorist threat; 2) temporary generalized emergencies, in which sets of emergency powers are introduced to deal with extensive disorders such as communal conflict; and 3) permanent or preventive emergencies, in which such temporary measures are made permanent to prevent the growth of organized opposition.��

Another typology would be the one formulated by the International Law Associa- tion (ILA). It notes the de jure emergencies, referring to the ones formally declared and/or notified, and the de facto emergencies, which are not formally notified. In the context of this paper it is of interest to see in more detail the latter group, which includes four types: 1) the “classic” de facto emergency, characterized by actual emer- gency conditions; 2) the “ambiguous or potential” de facto emergency, with no real tangible emergency conditions and a sudden change in application of security laws; 3) the “institutionalized” emergency, characterized by no real conditions of emer- gency, the lifting of a prior formal emergency, and the simultaneous incorporation of emergency laws into ordinary law; 4) the “ordinary” repression, characterized by no real conditions of emergency, and by permanent laws with extreme restrictions on human rights.��

Reading these classifications, one can obviously see, at best, the difficulty, if not the impossibility, of a precise definition and classification of states of emergency. In any type of out-of-normalcy situation one can find the inherent complexity of bor- derline characteristics of various classifications. In no circumstance is this difficulty of characterization more pronounced than in the field of so-called “terrorist” attacks. The question then arises, whether terrorist attacks can constitute legitimate grounds for measures based on a state of emergency, and what limits, if any, are to be placed on measures countering them.

84 Fitzpatrick, supra note 62, at 22. 85 Oraá, supra note 69, at 243. 86 Fitzpatrick, supra note 62, at 22-23, n. 75. 87 Id. at. 8-21.

24 Chapter I

C. Terrorist Acts as Grounds for a State of Emergency

It is during our most challenging and uncertain moments that our Nation’s Commitment to due process is most severely tested; and it is in those times that we must preserve our com- mitment at home to the principles for which we fight abroad.

Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004).��

Let us start this section by referring to three observations emblematic of the complex relationship between terrorism, anti-terrorist measures, and human rights:

Observation 1: The Inter-American Commission of Human Rights has noted that democratic governments always maintain the rule of law when confronting terror- ism; it is only states which do not enjoy the support of their people that will resort to measures equating state terrorism.�� What it probably meant is that a democratic and civilized society faces even its gravest of crisis by taking tough measures, but respecting at all times fundamental human rights which are inherent in each person and emanate from the respect for human dignity.

Observation 2: Professor Fitzpatrick stated, based on 1987-88 scholarly comments, that the British Northern Ireland legislation addressing the threat posed by the IRA had “the effect of blurring a distinction… between emergency powers and anti-ter- rorism provisions,” which would logically lead to a situation where “a permanent emergency state becomes the ‘solution’ to the emergency.”�0

Observation 3: At the time of Brogan,�� the European Court of Human Rights had the tendency to justify a detention beyond the normal forty-eight hours without any judi-

88 See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-165 (1963): “The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guar- antees which, it is feared, will inhibit government action.”

89 Report on the Situation on Human Rights in Argentina, OEA/Ser. L/V/II. 49, doc. 19, corr. 1, at 25-27 (1980).

90 Fitzpatrick , supra note 62, at 7, quoting J.D. Jackson, The Northern Ireland (Emergency Provisions) Act 1987, 39 N. Ir. L. Q. 235, 257 (1988). In many a time a number of coun- tries that had declared states of emergency, would, with the passing of time, have certain measures of pieces of legislation transform into institutional restrictions indefinitely, ulti- mately sneaking them into the permanent legal system. Such was the case of Chile and its military courts trying civilians under the Anti-Terrorist Act. Human Rights Committee Reports, U.N. Doc. A/45/40 Annex VIII (1990), at para. 193. The same had happened in Poland U.N. Doc. A/42/40 (1987), at paras. 55-104, in Nicaragua, U.N. Doc. A/45/40 An- nex VIII (1990), at paras. 388-425, etc.

91 ECtHR, Brogan and Others v. United Kingdom, Judgment of 29 November 1988, Series A, No. 145.

25The Problem

cial review and without charges brought against the detainee. Also, earlier in Klass,�� it allowed the opening of letters and wiretapping for the protection of national secu- rity even without judicial review if they legislation provides for adequate safeguards and meets the test of proportionality. Such reasoning was based on the fact that ter- rorism as an organized crime had emerged in Europe after the Convention came into effect. Consequently, the interest of the society to be safe from terrorism outweighed the individual rights of the detainee.��

These three facts walk us straight into our time: we are caught up in a “war” against terrorism, and as a war we do not know what to expect of its duration. We are called to give up some liberties and accept a diminishment of our personal privacy for the greatest good of our very life, though we do not see the “war” interfering with our daily routine. We are convinced that we will address terrorism effectively by being “tough” on it in all directions. We realize that terrorism today is different from the political violence of the IRAs, ETAs or Red Brigades, and consequently it does war- rant a novel approach.�� And, we are undeniably living in an era when the statement “A Week is a Long Time in Detention”�� sounds outdated and exotic while we still hold alleged terrorists in detention since 2001. In this pull-and-push perplexity, the situation needs to be properly understood: is the struggle against terrorism just the response of limited duration to an equally brief emergency? If so, people might be more inclined to tolerate the government as it does whatever needs to be done to handle this situation properly. Or, has the fight against terrorism become part of the 21st century’s “clash of civilizations”? In this case, people likely will still opt for assist- ing the government in finding the best ways to tackle the problem, while, however, increasingly insisting to keep the longstanding democratic tradition of fundamental due process alive. This, at least as long as the threat of terrorism does not materialize again.

Modern terrorism of the bin Laden kind can be said to present a qualitatively dif- ferent threat than the terrorisms of the past. The IRAs, ETAs and Red Brigades as well as other movements of revolutionary or secessionist character addressed them- selves mostly to national issues, operated mostly within a country and did not count on much outside support. The terrorists plotting and executing September 11, 2001 operated on a much larger plane. Al Qaeda constitutes a global phenomenon. Inter-

92 ECtHR, Klass and Others v. Federal Republic of Germany, Judgment of 6 September 1978, Series A, No. 28, 2 EHRR 214 (1979-80). Cf. Heike Krieger, Limitations on Privacy, Freedom of Press, Opinion and Assembly as a Means of Fighting Terrorism, in Terror- ism as a Challenge for National and International Law: Security versus Liberty? 51, 58-59 (2004).

93 Brogan, supra note 91, referring to Commission’s decision, at 59. 94 Joseph S. Nye, Jr., A North American Perspective, in Joseph S. Nye, Jr., et al., Address-

ing the New International Terrorism: Prevention, Intervention and Mul- tilateral Cooperation 5, 6-7 (2003).

95 See Stephen Livingstone, A Week is a Long Time in Detention: Brogan and Others v. Unit- ed Kingdom, 40 N. Ir. L. Q. 288 (1989).

26 Chapter I

national conflicts seem to be “hotbeds that create the terrorists”�� and nurture them.�� Its threat is thus no longer purely internal, as earlier terrorist movements were. It is external as well.

As early as September 20, 2001, President George W. Bush outlined the param- eters of this new war, the “war on terror”:

Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen. It may include dramatic strikes, visible on TV, and covert operations, secret even in suc- cess. We will starve terrorists of funding, turn them one against another, drive them from place to place, until there is no refuge or no rest. And we will pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.”��

This “war on terror”�� thus will not be, and has not been, brief. It also involves inter- national law as well as domestic law. The international law regimes for war, largely tailored to conflicts between states, have a hard time to be fitted to the needs of com- bat against a shadowy enemy who himself does not feel bound by any restrictions on his conduct. Should thus the domestic and international human rights protections

96 Madeleine Albright, quoted in Adam Lebor, Complicity with Evil: United Na- tions in the Age of Modern Genocide 249 (2006).

97 Arab students at Hamburg Technical University who had watched gruesome footage of Serbian atrocities of the 1992-1993 wars in Bosnia were easily recruited to form the Ham- burg cell of Al Qaeda. Three of them, Mohamed Atta, Marwan al-Shehhi and Ziad Jarrah, piloted the three hijacked planes that flew into the World Trade Center and crashed in Pennsylvania. Id. at 249-251.

98 President George W. Bush, Address to a Joint Session of Congress and the American People, 37 Weekly Comp. Pres. Docs. 1347 (Sept. 20, 2001).

99 For recent discussions of terrorism and legal responses thereto, see W. Michael Reisman, Aftershocks: Reflections on the Implications of September 11, 6 Yale Hum. Rts. & Dev. L.J. 81 (2003); id., International Legal Responses to International Terrorism, 22 Hous. J. Int’l L. 3 (1999); Sean D. Murphy, Terrorism and the Concept of “Armed Attack” in Article 51 of the U.N. Charter, 43 Harv. Int’l L. J. 41 (2002); Steven R. Ratner, Jus Ad Bellum and Jus in Bello after September 11, 96 Am. J. Int’l L. 905 (2002); David Abramowitz, The Presi- dent, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against International Terrorism, 43 Harv. Int’l L. J. 71 (2002); Jonathan I. Charney, The Use of Force Against Terrorism and International Law, 95 Am. J. Int’l L. 835 (2001); Thomas N. Franck, Terrorism and the Right to Self-Defense, 95 Am. J. Int’l L. 839 (2001); M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Assessment, 43 Harv. Int’l L. J. 83 (2002); Anne-Marie Slaughter, An International Con- stitutional Moment, 43 Harv. Int’l L. J. 1 (2002); John Alan Cohan, Formulation of State Response to Terrorism and State-Sponsored Terrorism, 14 Pace Int’l L. Rev. 77 (2002); Daniel Benjamin & Steven Simon, The Age of Sacred Terror (2002); Bernard Lewis, The Crisis of Islam: Holy War and Unholy Terror (2003).

27The Problem

apply, as modified, as the case may be, by their emergency provisions? How do we appropriately respond to the threat posed by terrorists while protecting the rights of the persons accused of terrorist activity? Should the regular fair trial and due process protections, in particular, be suspended or eliminated? Should they be modified?

In the course of this study, the author and the reader will have a long way to go before being able to answer any of these questions. A large part of the law has been already laid out by various bodies with authority, in particular courts, international and domestic. It will be analyzed below.

To get a flavor of the debate, let us see for a moment how the European Court rea- soned about the grounds for detention in cases related to terrorism. In Fox, Campbell and Hartley,�00 the Court held that an objectively reasonable suspicion of involve- ment in criminal activity must be established on the grounds of Article 5(1)(c) of the European Convention of Human Rights. A bona fide belief of the arresting officer would not be enough, but it also added that this provision “should not be applied in such a manner as to put disproportionate difficulties in the way of the … authorities … in taking effective measures to counter organized terrorism… . [They] cannot be asked to establish the reasonableness of the suspicion grounding arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity.”�0�

Again, in a terrorist threat setting, in 2001, the U.S. Congressional Joint Resolution of the Authorization for Use of Military Force,�0� declared as follows: “The president is authorized to use all necessary and appropriate force against those nations, orga- nizations or persons he determines, planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.” In 2004, in the Hamdi case,�0� the Supreme Court reviewed the powers used by the President. It looked at whether the resolution included an authorization by Congress to detain terrorists without charging them with a crime (i.e. whether it was a Congressional act which trumped the statutory limitation that Congress had previously passed about detaining Ameri- can citizens without charging them with a crime). Symbolically, it concerned what Justice O’Connor, speaking for the majority, called, “essential liberties that remain vibrant even in times of security concerns.”�0� The Supreme Court held that people deprived of their liberty have certain due process rights and that the President can- not exercise his powers as Commander-in-Chief without judicial review, including a court or a military tribunal under appropriate circumstances, but also concluded that the authorization for the use of military force constituted statutory authorization to detain a person who had been taken prisoner as an unlawful combatant. This actually

100 ECtHR, Fox, Campbell and Hartley v. United Kingdom, Apps. No. 12244/86 and 12383/86, Judgment of 30 August 1990, Series A No. 182, 13 Eur. H.R. Rep. 157 (1990).

101 Quoted in ECtHR, Ireland v. United Kingdom, Judgment of 18 January 1978, Series A, No. 25, at para. 34.

102 Authorization for the Use of Military Force, Pub. L. 107-40 [S. J. RES. 23], September 18, 2001.

103 Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004). 104 Id. at 2652 (emphasis added).

28 Chapter I

diverted from 18 U.S.C. 4001, the federal anti-detention statute, which stipulates that no citizen may be detained “except pursuant to an Act of Congress.” Justice O’Connor took the view that the Presidential power allowed detention of even an American citizen who is a suspected terrorist without actually charging him with a crime for the simple reason that if released, he would likely return to the battlefield to plot and execute more lethal attacks on Americans. Justice Scalia dissented, holding that it was unconstitutional for the President to detain any individuals without charging them with some crime, unless habeas corpus is suspended, and this can only happen in very limited circumstances.

Finally, let us come back to Observation 3 mentioned above. The facts of the Bro- gan case have to do with detentions undertaken while, at that particular time, in the U.K. there was no proclamation of a state of emergency. We saw how the European Commission, the quasi-judicial body monitoring the European Convention on Hu- man Rights, had reacted to the detentions phenomenon when a prolonged detention was challenged. However, the judicial body, the European Court of Human Rights, did not share the same opinion. It held that judicial review of detention left no room for flexibility, and it found a violation in such a case.�0� Following the Court’s decision, rather than amending the law to rectify the problem, the U.K. filed a new notice of emergency, thus justifying its derogations. Such a progression of this issue practically suggested that no administrative detention could be justified if there were no states of emergency. It is at that time that scholars like Livingstone�0� found a week’s period to be a long time in detention. However, history repeats itself in one aspect: the deten- tions up to seven days that occurred under the Prevention of Terrorism Act of 1984 were mostly sorts of short term administrative detentions for purposes of intelligence gathering�0� rather than pretrial detentions for prosecutions.�0�

Nowadays, the detentions under the U.S.A. PATRIOT Act�0� have mostly fulfilled the same function. Out of about 5000 persons detained since 2001 only a few of them have been charged and brought to trial on terrorism-related charges.��0 But is there a state of emergency, de jure or de facto, justifying such acts? Is the potential danger of terrorism a good enough ground under international law of human rights for such

105 Brogan, supra note 91, at 33. 106 Supra note 95. 107 Though, in Brogan v. United Kingdom, supra note 87, both the Commission and the

Court supported the government’s view that there existed a reasonable suspicion of in- volvement in terrorism, and their case was more like an ordinary criminal case in which enough evidence had been gathered during interrogation that there would have been charges brought by the prosecution.

108 See Fitzpatrick, supra note 62, at 47. 109 Pub. L. 107-56, 115 Stat. 272 (2001). The U.S.A. PATRIOT Act was signed into law on

October 26, 2001. 110 See David Cole, The Priority of Morality: The Emergency Constitution’s Blind Spot, 113

Yale L.J. 1753, 1777 (2004). For discussion of the Act and its application, see infra Chapter V, B.2.

29The Problem

a state of emergency? Are the “privatization of war”��� by terrorist groups and the dramatic change in world politics justifiable grounds for a government to wage an endless war? Or, is it enough to curb terrorism by means of our “business as usual”��� approach?

This study hopes to provide some insights toward an answer to these intricate, but unavoidable questions as posed throughout this introduction.

111 Phrase found in Joseph S. Nye, Jr., supra note 94, at 7. 112 Ibid.

CHAPTER II Criminal Due Process Guarantees in Peacetime: The International Legal Regime

The liberty of a person is the hallmark goal endorsed by a genuinely democratic so- ciety to express its ultimate regard for the human being and his dignity. In pursu- ing this objective, its constitutive process has designed the guarantees and the rules of conduct which preclude any unlawful and arbitrary curtailment or deprivation of rights, freedoms and liberties. One of these assurances is the due process of law in criminal proceedings, which now doubles as a central norm of the international law of human rights. As we trace the historical development and the course of legal change in the field of procedural due process, we come to realize that having gone through enormous battles, which continue into the present, due process still has a long way to go. Therefore, it appears cogent that before delineating due process in the era of international terrorism bringing about states of emergency, we focus on the due process guarantees in peacetime,� thus explicating the rule before sociopolitical reality brings forth the exception to it.

Due process is a right which society has always considered of fundamental im- portance, both in terms of the letter of the law or legal text and also of its spirit or intention. This can be evidenced by the enormous changes in meaning that this rule has undergone in the domestic laws of both adversarial and inquisitorial legal sys- tems, as well as in the international law of human rights, and the extensive body of its interpretation by courts and scholars. It can also be illustrated by the fact that the right to due process guaranteed in Article 14 of the International Covenant on Civil and Political Rights (hereinafter ICCPR), was proposed� to be included as one of the non-derogable rights under Article 4 (2) of the ICCPR.

1 In this section, the word “peacetime” is used to refer to situations of “normalcy” and not merely to “the absence of war.” Situations of emergency are dealt with separately, infra, at Chapter III.

2 Draft Optional Protocol to the ICCPR, Aiming at Guaranteeing Under All Circumstanc- es the Right to a Fair Trial and a Remedy, Annex I, in: “The Administration of Justice and the Human Rights of Detainees, The Right to a Fair Trial: Current Recognition and Meas- ures Necessary for its Strengthening,” Final Report, Commission on Human Rights, Sub- Commission on Prevention of Discrimination and Protection of Minorities, 46th Session, E/CN.4/Sub.2/1994/24, June 3, 1994, at 59-62.

32 Chapter II

When pursuing social safety through an effective system of reasonable deterrence and just retribution,� the government automatically is cautioned against treating the accused and the criminals more severely than they deserve to be treated. Sanctions of criminal law, by nature, constitute a radical infringement of fundamental human rights, in a way they fit squarely with the motto: no absolute freedom for the enemies of freedom.� Consequently, any government that truly values the human dignity of persons under its jurisdiction, is obliged to employ the least intrusive means in the curtailment of the personal liberty of an accused, and provide the imperative safe- guards for the accused in its process of crime punishment, to ensure that even per- sons accused of a crime are given the respect they are owed as humans. While ac- countability for any criminal offence is indispensable, it should be rendered through a due process of law, and obviously, it is in the nature of procedural guarantees to require states to undertake extensive positive measures to ensure these safeguards, which ultimately call for a highly developed legal system.�

Law and philosophy gave birth to the concept of due process as a guarantee against the abusive power of government, which, like fire, could be a “dangerous servant and a fearful master.”� Shaped in domestic courts, through agreements or controversy as to its scope, the due process of law, undoubtedly embraces the fundamental concep-

3 The terms “deterrence” and “retribution” are at the heart of the discussion regarding punishment for crime, and proponents and theories in favor or against each purpose of punishment are numerous. However, it might be of interest here to note Immanuel Kant’s theory on commitment to retribution as distinct from commitment to revenge or vindictiveness, and his opposition to the utilitarian thesis on criminal penalties as deterrence. In his book Metaphysical Elements of Justice, Kant writes, “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for society, but instead it must in all cases be imposed on a person solely on the ground that he has committed a crime; for a human being can never be confused with the objects of the law of things. … He must first be found to be deserving of punishment before any consideration can be given to the utility of his punishment….” Jeffrie G. Murphy & Jules Coleman, Philosophy of Law: An Introduction to Jurisprudence 120 (1990), with further discussion of the philosophy of crime and pun- ishment.

4 Eckart Klein, Reflections on Article 5 of the international Covenant on Civil and Political Rights, in Towards Implementing Universal Human Rights 127, 137 (Nisuke Ando ed., 2004).

5 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Com- mentary 307, para. 3 (2nd revised ed. 2005). Also, positive steps to be taken by the state are generally required in order to have a proper functioning of the administration of jus- tice. It is the state’s responsibility to set up the necessary legal infrastructure. See Susan Marks & Andrew Clapham, International Human Rights Lexicon 159 (2005).

6 George Washington, quoted in James Crutchfield, George Washington: First in War, First in Peace (American Heroes) 21 (2005). The full statement goes like that: “Government is not reason; it is not eloquence; it is force! Like fire it is a dangerous serv- ant and a fearful master.”

33Due Process in Peacetime: International Law

tion of a fair trial,� which is in fact the terminology used in all universal and regional instruments of human rights protection. The international law of human rights is a much more recent creation of applicable values, however, through its treaty and non-treaty norms, through the vast case law of regional and international courts and tribunals, as well as through other authoritative interpretations,� it sets forth in detail the rights of the accused in peaceful and trouble-free times, demanding their global applicability to the entire world’s legal systems. Like any other guarantee of human rights protection, fair trial too walks on a stony way, and any positive results, no mat- ter how small they may seem,� bear significant importance.

This section focuses on the right to a fair trial, as it relates to criminal proceed- ings, enshrined in universal and regional multi-lateral treaties on human rights, in the jurisprudence of their respective judicial organs (courts, commissions, commit- tees), as well as in customary law. Throughout this paper mention will also be made of non-treaty documents,�0 which have been adopted by the U.N. General Assembly

7 U.S. Supreme Court Justice Oliver Wendell Holmes in Frank v Mangum, 237 U.S. 309, 347 (1915).

8 See generally Louise Doswald-Beck & Robert Kolb, Judicial Process and Human Rights (2004).

9 Eckart Klein, Participation in the International Covenant on Civil and Political Rights: How States Become State Parties, in Verhandeln für den Frieden-Negotiating for Peace: Liber amicorum Tono Eitel, 369, 378 (Jochen Abr. Frowein, Klaus Scharioth, Ingo Winkelmann & Rüdiger Wolfrum eds., 2003).

10 Such as: 1) The Body of Principles for the Protection of All Persons under Any Form of Detention

or Imprisonment (Body of Principles), adopted by consensus by the U.N. General Assembly in 1988, contains an authoritative set of internationally recognized stand- ards, applicable to all states, on how detainees and prisoners should be treated. The principles set forth basic legal and humanitarian concepts and serve as a guide for shaping national legislation, available at http://www.unhchr.ch/html/menu3/b/ h_comp36.htm.

2) The Declaration on the Protection of All Persons from Enforced Disappearance, adopted by General Assembly resolution 47/133 of 18 December 1992, characterizes all acts of enforced disappearance of persons as very serious offences and sets forth standards designed to punish and prevent their commission. The General Assembly proclaims the Declaration as a body of principles for all states and “urges that all efforts be made so that the Declaration becomes generally known and respected.” Available at http://www.ohchr.org/ english/law/disappearance.htm.

3) The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, recommended by Economic and Social Council resolu- tion 1989/65 of 24 May 1989, urges that these principles should be taken into ac- count and respected by Governments within the framework of their national leg- islation and practices. Available at http://www.ohchr.org/english/law/executions. htm#1.

4) The Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted in 1955 by the First U.N. Congress on the Prevention of Crime and the Treatment of Offenders and approved by the U.N. Economic and Social Coun-

34 Chapter II

and other organizations, aiming at codifying or elaborating basic principles on spe- cific components of a fair trial. These non-treaty instruments, though non-binding technically, nevertheless provide authoritative definitions on fair trial standards to which governments are expected to aspire. They also express the direction in which the law is evolving.��

When analyzing the due process international guarantees provided by universal and regional systems of human rights protection, this study will draw extensively

cil, set out what is “generally accepted as being good principle and practice” in the treatment of prisoners. In 1971, the U.N. General Assembly called on member states to implement these rules and to incorporate them in national legislation, available at: http://www.unhchr.ch /html/menu3/b/h_comp34.htm.

5) The Basic Principles on the Role of Lawyers were adopted by consensus at the Eighth U.N. Congress on the Prevention of Crime and the Treatment of Offenders in 1990 and welcomed by the U.N. General Assembly. The U.N. Crime Congress explained that “the adequate protection of the human rights and fundamental freedoms to which all persons are entitled requires that all persons have effective access to legal services provided by an independent legal profession,” available at http://www.oh- chr.org/english/ law/lawyers.htm.

6) The Guidelines on the Role of Prosecutors were adopted by consensus at the Eighth U.N. Congress on the Prevention of Crime and the Treatment of Offenders in 1990 and welcomed by the U.N. General Assembly. The Guidelines were adopted in an effort to assist governments in “securing and promoting the effectiveness, imparti- ality and fairness of prosecutors in criminal proceedings,” available at http://www. ohchr.org/english/law/prosecutors.htm.

7) The Basic Principles on the Independence of the Judiciary were adopted by the Sev- enth U.N. Congress on the Prevention of Crime and the Treatment of Offenders and endorsed by the U.N. General Assembly in 1985. The principles, which apply to professional judges and lay judges as appropriate, were formulated to assist govern- ments in securing and promoting the independence of the judiciary. They “should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general.” Available at: http://193.194.138.190/html/menu3/b/h_comp50.htm.

8) The United Nations Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, adopted by the U.N. Economic and Social Council (Resolution 1996/15) and endorsed by the U.N. General Assembly in 1984, restrict the use of the death penalty in countries which have not yet abolished it. Among other protective measures, they provide that capital punishment may only be carried out after a legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the ICCPR, including the right of anyone sus- pected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings. Available at http://www. un.org/documents/ecosoc/res/1996/eres1996-15.htm.

11 See Lawyers Committee for Human Rights, What is a Fair Trial? A Basic Guide to Legal Standards and Practice 2 (March 2000), available at http://www. humanrightsfirst.org/pubs/ descriptions/fair_trial.pdf .

35Due Process in Peacetime: International Law

from the materials offered in Amnesty International’s Fair Trials Manual,�� as well as in the publication entitled Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers,�� compiled by the Office of High Commissioner for Human Rights and the International Bar Association. It will particularly base itself broadly on their classification of such guarantees during pre- trial arrest and detention, from investigation to trial, trial and appeal to final judg- ment. These manuals are a significant tool also in the recent growing practice of in- ternational trial observation, which has in turn generated influential interpretations of the fair trial guarantees.��

Pre-Trial Rights

In brief, pre-trial guarantees entail the following rights, as enshrined in universal and regional instruments of human rights protection: 1. Rights to liberty and security of a person include: right to personal liberty; pro-

tection against arbitrary and unlawful detention; presumption of release pend- ing trial; prohibition of incommunicado detention, abductions and forced disap- pearances.

2. Rights of detainees to information include: right to be informed immediately of the reasons for arrest or detention; right to notification of rights; notification of the right to legal counsel; right to be informed promptly of any charges; notifica- tion in a language the person understands; rights of foreign nationals.

3. Rights to legal counsel include: right to the assistance of a lawyer; right to a law- yer in pre-trial stages; right to choose a lawyer; right to have a lawyer assigned free of charge; right to competent and effective counsel; right to have access to counsel; right to time and facilities to communicate with counsel; right to confi- dential communication with counsel.

4. Rights to have access to the outside world include: right to communicate and receive visits; prohibition of incommunicado detention; right to inform family of arrest or detention and place of confinement; right of access to family; rights of access of foreign nationals; right of access to doctors.

5. Right to be brought promptly before a judge or other judicial official includes the right of review of detention by a judge or other judicial officers authorized to exercise judicial power, and it implies “promptness.”

6. Rights to challenge the lawfulness of detention guarantee: procedures allowing dispute of lawfulness of detention; continuing review (even in times of emer- gency); right to reparation for unlawful arrest or detention.

7. Right to trial within a reasonable time or to release from detention pending trial protects against unduly prolonged uncertainty for the accused and/ or detained,

12 Amnesty International Fair Trials Manual (Amnesty International Publications 1998).

13 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (2003), available at http://www.unhchr.ch/ html/menu6/2/training.htm.

14 Marks & Clapham, supra note 5, at 151.

36 Chapter II

and it involves considerations on the meaning of “a reasonable time,” risk of flight, and asks for necessary diligence on the part of authorities.

8. Right to adequate time and facilities to prepare a defense involves considerations on the meaning of “adequate time;” access to information, documents, evidence; right to information about charges; time limits in information about charges; language this information is given; access to experts.

9. Rights during interrogation provide: safeguards for people undergoing interroga- tion; prohibition of coerced confessions; right to silence; right to an interpreter; keeping records of interrogation; review of interrogation rules and practices.

10. Rights to humane conditions of detention and to freedom from torture include: right to be held in a recognized place of detention; keeping records of detention; right to adequate medical care; presumption of innocence for people in pre-trial custody including segregation and differentiation from the convicted ones; gen- der-sensitive facilities and staff for women in custody; freedom from torture and ill-treatment; restriction of prolonged solitary confinement; restriction on use of force by law enforcement officials; unacceptability of physical pressure dur- ing interrogation; regulations on the use of restraints; body searches compat- ible with human dignity; prohibition of medical or scientific experimentation; examination and review of disciplinary offences within the detaining institution; right to reparation for torture or ill-treatment.

Trial Rights

1. Rights to equality before the law and courts include: right to equality before the law; right to equality before the courts; right to equal access to the courts; right to equal treatment by the courts.

2. Rights to trial by a competent, independent and impartial tribunal established by law guarantee: right to be heard by a tribunal established by law; right to be heard by a competent tribunal; right to be heard by an independent tribunal; separation of powers guaranteeing exclusive jurisdiction of the judiciary over judicial matters; observance of international standards in the appointment and conditions of employment of judges; objectivity in the assignment of cases; right to be heard by an impartial tribunal; challenges to the impartiality of a tribunal.

3. Right to a fair hearing realizes the principle of “equality of arms” between parties in a case.

4. Right to a public hearing warrants discussion of the requirements of a public hearing; permissible exceptions to a public hearing; violations of the right to a public hearing.

5. Presumption of innocence requires that the burden of proof rests with the pros- ecution; protects from prejudicial procedures impinging on the presumption of innocence; ensures respect for judgments of court and rule of law after acquit- tal.

6. Rights not to be compelled to testify or confess guilt includes: privilege against self-incrimination; right to silence; consideration of allegations of coercion at any stage.

37Due Process in Peacetime: International Law

7. Exclusion of evidence elicited as a result of torture or other compulsion includes exclusion of evidence elicited by torture or ill-treatment; exclusion of evidence elicited under duress; (also as in the case of Article 8(3) of the American Con- vention on Human Rights) “coercion of any kind.”

8. Prohibition of retroactive application of criminal laws and of double jeopardy provides for: prohibition of prosecution for offences which were not crimes when committed; prohibition of double jeopardy (specific consideration of pro- hibition of double jeopardy under the ACHR and under statutes of international tribunals).

9. Right to be tried without undue delay warrants discussion on the meaning of “a reasonable time” depending on the complexity of the case, the conduct of the accused, and the conduct of the authorities.

10. Rights to defend oneself in person or through counsel include: right to defend one- self; right to defend oneself in person; right to be defended by counsel; advance notice of the right to counsel; right to choose defense counsel; right to have defense counsel assigned (right to free legal assistance); right to confidential communications with counsel; right to experienced, competent and effective defense counsel; prohibition of harassment and intimidation of counsel.

11. Right to be present at trial and appeal warrants discussion of trials in absentia, as well as on the right to be present at appeals.

12. Rights to call and examine witnesses include: right of the defense to question witnesses against the accused; opposition to and restriction of use of anony- mous witnesses; limitations on the examination of prosecution witnesses; right to call and examine defense witnesses; rights of victims and witnesses.

13. Right to an interpreter and to translation includes right to a competent inter- preter; right to have documents translated.

14. Standards of judgments include: right to a public judgment; right to know the reasons for the judgment; right to be judged by the decision-makers who at- tended the proceedings; right to judgment within a reasonable time.

15. Standards of punishments imposed upon conviction of a crime include: punish- ment only upon convicted after a fair trial; proportionality of penalties imposed to the gravity of the crime; punishments must not violate international stand- ards; prohibition of corporal punishment; international standards of the condi- tions of imprisonment; prohibition of collective punishments.

Appeal Rights

The right to appeal guarantees: right to have an appeal; review by a higher tribu- nal; genuine review; fair trial guarantees during appeals.

The above enumerated standards constitute the basic international legal rules that control a state’s power in its administration of justice in criminal proceedings, a sine qua non in a democratic society governed by the rule of law. They are aimed at effec- tively guaranteeing everyone’s right to personal liberty and security at all times.

The following analysis will bring forth the reality of such standards as enshrined in international law instruments and as applied by the courts and those endowed with

38 Chapter II

the legal responsibility to safeguard the application of such standards. Many of these rights apply to pre-trial and trial stages. They are available in all universal as well as regional instruments of human rights protection. Some overlapping of guarantees in pre-trial and trial phases is almost unavoidable, though this study will be trying to keep it to a minimum, bringing out various facets of interpretations.

Subsequent to the analysis of the various treaty regimes, the study will highlight due process protections under customary international law and general principles of law. The chapter will end with a survey of due process guarantees in proceedings before international criminal tribunals.

A. Human Rights Treaties

1. The International Covenant on Civil and Political Rights and the Jurisprudence of the Human Rights Committee

This analysis will proceed from the most general and universal to the regional and specific rules at issue. It starts with the applicable guarantees under the International Covenant on Civil and Political Rights (hereafter ICCPR),�� and their interpretation by the U.N. Human Rights Committee.

The present status of ratification of the International Covenant on Civil and Po- litical Rights reflects a vast consensus of the international community on its con- tent. This vast agreement on its standards, widespread state practice and opinio juris ultimately compel adherence to its protective formulations, and makes many of its provisions an expanded hard law version�� of the UDHR, and the most authoritative expression of universally accepted minimum standards of human rights.�� The IC- CPR provides for an immense jurisprudence through its individual communications procedure guaranteed by the first Optional Protocol�� to the ICCPR, presented to

15 The International Covenant on Civil and Political Rights (hereafter ICCPR), was opened for signature at New York on December 19, 1966, and it entered into force on 23 March 1976, in accordance with article 49, for all provisions except those of article 41; 28 March 1979 for the provisions of article 41 (Human Rights Committee), in accordance with para- graph 2 of the said article 41. As of September 26, 2008, there were 162 states parties and 71 signatories to ICCPR, http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&i d=321&chapter=4&lang=en.

16 Christopher Harland, The Status of the Covenant on Civil and Political Rights (ICCPR) in the Domestic Law of State Parties: An Initial Global Survey Through UN Human Rights Committee Documents, 22 Hum. Rts. Q. 187 (2000).

17 Nowak, CCPR Commentary, supra note 5, at Preface (XI). 18 The First Optional Protocol to the ICCPR was opened for signature at New York on De-

cember 19, 1966, and it entered into force on 23 March 1976, at the same time as the Cov- enant. As of August 2, 2008, there were 111 states parties and 35 signatories of the First Optional Protocol to the ICCPR, http://treaties. un.org/Pages/ViewDetails.aspx?src=TR EATY&id=322&chapter=4&lang=en. There is also the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. It has been adopted and proclaimed by General Assembly Resolution 44/128 of 15 December 1989, and it entered into force

39Due Process in Peacetime: International Law

the Human Rights Committee (hereafter HRC),�� a quasi-judicial body,�0 though the Committee has made it clear through its decisions on admissibility according to Arti- cle 2 and 3 of the Optional Protocol, that an international body cannot act as “a fourth

on July 11, 1991. As of September 26, 2008, there were 68 states parties and 35 signatories of the Second Protocol, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id =136&chapter=4&lang=en.

19 The Human Rights Committee is a body of independent experts that monitors the im- plementation of the International Covenant on Civil and Political Rights by its states parties. In addition to the reporting procedure, article 41 of the Covenant provides for the Committee to consider inter-state complaints. The First Optional Protocol to the Covenant gives the Committee competence to examine individual complaints with re- gard to alleged violations of the Covenant by states parties to the Protocol. Available at http://www2.ohchr.org/english/bodies/hrc/index.htm.

20 The Protocol’s individual petition system permits victims of a violation of any of the rights provided for in the Covenant to file a communication with the HRC against the state party to the Covenant that they allege to have perpetrated the violation, after they have exhausted all the available domestic remedies. Contrary to what is customary in full judicial proceedings the Committee has no oral hearings. According to the Optional Pro- tocol, Article 5, para. 1 the Committee restricts itself to “written information made availa- ble to it by the individual and the State Party concerned.” In the same article, paragraph 3, the Optional Protocol also specifies that the Committee “shall hold closed sessions when examining communications.” While these provisions do not legally exclude the possibil- ity of having oral hearings as a preliminary phase before the submission of written final briefs by the parties and their examination in a closed meeting, the resource constraints on the work of the Committee and the backlog of communications have so far prevented the taking of this step. See Raija Hanski & Martin Scheinin, Leading Cases of Human Rights Committee 13-14 (2003). The proceedings in the HRC end with the adoption of “views,” which constitute its findings or decisions. For more on the HRC, see Thomas Buergenthal, The U.N. Human Rights Committee, 5 Max Planck U.N.Y.B. 341, 366-368 (2001). Though the First Optional Protocol to ICCPR is silent on the follow up on or enforcement of HRC’s views, the Committee has developed its own procedure to give effect to views by requiring State parties to include in their country report on actions taken to give effect to Committee’s views. It also established the position of the Special Rapporteur for the follow-up on views. Id. at 373. For more on the practice of the HRC on this issue, see Marcus G. Schmidt, Follow-up Mechanisms Before UN Human Rights Treaty Bodies and the UN Mechanism and Beyond, in The UN Human Rights Treaty System in the 21st Century 233 (Anne F. Bayefsky ed., 2000).

40 Chapter II

instance” applying domestic law.�� The HRC�� also monitors measures adopted by the states in order to give effect to the rights recognized in the Covenant and on the progress they have made in the enjoyment of those rights, through its review of state reports under the reporting procedure of Article 40 of the Covenant. In addition, it offers authoritative interpretation of the rights codified in the Covenant, known as General Comments�� on thematic issues or its methods of work. General Comments, specific comments in the process of review of state reports, and the jurisprudence of the HRC established through the communications procedure complement each other�� in developing and supporting the Committee’s views and interpretations on the rights enshrined in the ICCPR.

21 One situation when this approach is applied is when the author’s allegations are in their essence related to the assessment of facts, evidence and issues of domestic law by the courts, and the author does not provide facts and arguments to demonstrate why the assessment by the domestic courts entailed a violation of the Covenant, usually the right to a fair trial (Article 140). In Moti Singh v. New Zealand (Communication No. 791/1997, Decision on Admissibility adopted 12 July 2001, Report of the Human Rights Committee, Vol. II, U.N. Doc. A/56/40 (Vol. II), pp.228-240), the Committee stated: “The Commit- tee notes that the author’s remaining claims under Article 14 of the Covenant essentially relate to the evaluation of facts and evidence as well as to the implementation of the domestic law. The Committee recalls that it is in general for the courts of State parties, and not for the Committee, to evaluate the facts in a particular case and to interpret do- mestic legislation. The information before the Committee and the arguments advanced by the author do not show that the Court’s evaluation of the facts and their interpretation of the law were manifestly arbitrary or amounted to a denial of justice. These claims are therefore inadmissible under Article 2 and 3 of the Optional Protocol.” Id. at para. 6.11. See Hanski & Scheinin, supra note 20, at 18.

22 In addition to the HRC, there are six other treaty monitoring committees. There has been discussion of the desirability of having all such bodies, and that they are suffering of an “organizational crisis.” Thomas Buergenthal has suggested that this issue could be addressed by a court and two consolidated committees, one dealing with state report- ing and the other with individual and inter-state communications. See Thomas Buer- genthal, A Court and Two Consolidated Treaty Bodies, in Bayefsky, supra note 20, at 299. For more contributions to this subject, see generally The Future of the UN Human Rights Treaty Monitoring (Philip Alston & James Crawford eds., 2000), as well as International Human Rights Monitoring Mechanisms: Essays in Honor of Jakob Th. Moeller (Gudmundur Alfredsson et al. eds., 2001).

23 General Comments, initially “laconic and hesitant,” were transmitted by the HRC as di- rectly related to the reporting procedure, whereas now they have turned into “a distinct juridical instrument, enabling the Committee to announce its interpretations of different provisions of the Covenant in a form that bears some resemblance to the advisory opin- ion practice of international tribunals…State parties and individuals increasingly rely on general comments to support their legal arguments before the Committee.” See Thomas Buergenthal, The U.N. Human Rights Committee, 5 Max Planck U.N.Y.B. 341, 386-387 (2001).

24 Elizabeth Evatt, Reflecting on the Role of International Communications in Implement- ing Human Rights, 5(2) Austl. J. Hum. Rts. 20 (1999), available at http://www.austlii.

41Due Process in Peacetime: International Law

The basic enforceable minimum standards in the administration of justice embed- ded in the ICCPR and judgments�� based on it have often influenced decisions taken by domestic courts,�� which now frequently interpret and apply its provisions.�� This implementation is made possible thanks to the tendency of direct applicability of the Covenant,�� and the high standing that the ICCPR has in domestic law.��

This section focuses on the guarantees provided in the ICCPR, backed up with the vast interpretation of these norms by the HRC in its views regarding individual com- munications as well as in its General Comments, and the discussion will be divided into three parts: due process guarantees during pre-trial, trial, and appeal.

edu.au/au/journals/AJHR/ 1999/20.html, also referring to the case of Toonen v. Australia 488/1992, Views adopted 31 March 1994, A/49/40, Vol. II, at 226.

25 “Judgments based on the ICCPR may much more easily be shared among countries than rulings on national constitutions and human rights legislation, which are written in dif- ferent languages, contain different provisions, and have different drafting histories.” Har- land, supra note 16, at 190.

26 Simpson v. Attorney General (1994) 1 HRNZ. This case was one of the most famous human rights cases in New Zealand. It alleged an unreasonable search of the plaintiff ’s home which amounted to a violation of the New Zealand Bill of Rights Act 1990. In its decision, the Court of Appeal stressed that the intention of the Bill of Rights was to “af- firm, protect, and promote human rights and fundamental freedoms in New Zealand and to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.” The Court went on reasoning that the infringement of the rights of an innocent person deserved monetary compensation and that this “was consistent with a rights-centered approach to the Bill of Rights and international jurisprudence on rem- edies for human rights violations”, referring to the jurisprudence on remedies of both the Human Rights Committee and the Inter-American Court of Human Rights. Id. at 42-43.

27 Christopher Harland’s survey mentions several countries (like The Netherlands, Belgium, Italy, Venezuela, Senegal, Japan, Belarus) whose courts have applied, inter alia, articles 9, 14 and 15 related to issues of due process. See Harland, supra note 16, at 196.

28 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Com- mentary 54 (1993).

29 In Annex B dealing with the status of the ICCPR in domestic law, Harland lists 48 coun- tries which rank ICCPR above ordinary national law, 12 countries rank it equally with ordinary national law, 4 countries rank it equally with their constitution, and 2 countries rank it above their constitution. See Harland, supra note 16, at 257-260. Also, some con- stitutions make specific reference to international human rights treaties holding a higher rank than other treaties. Id. at 197.

42 Chapter II

a. Due Process before Trial At the heart of due process during pre-trial lies the right to liberty�0 and security�� of person. Article 9(1)�� of the ICCPR specifically notes that “[n]o one shall be subjected to arbitrary arrest or detention,��” and that a deprivation of liberty could only be done “on such grounds and in accordance with such procedure as are established by law.” Obviously, it represents a procedural guarantee.�� There are two concepts that need to be best understood here: arbitrariness and lawfulness, because it is not the deprivation of liberty per se that is prohibited in the Covenant. Thus, before finding an arrest or detention arbitrary, it is essential to know when it is lawful. The principle of legality asks that the domestic law should have explicit grounds and clear cut pro- cedures for arrest and detention, and such grounds and procedures must not only be well established by domestic legislation, but they must also comply with interna- tional standards.�� The law, in substance (i.e. grounds) and procedure�� must be clear,

30 The meaning of the term liberty of a person must be seen in its narrowest sense, and as one element of human liberty. It means the freedom of bodily movement, and it can only be interfered with in cases of forceful detention in a prison or other detention facility. See Nowak, CCPR Commentary, supra note 28, at 212, para. 3.

31 The notion of the security of a person is not the subject of this discussion, however it might be proper to note that the HRC has noted that the state is “under an obligation to take reasonable and appropriate measures to protect” the life of all persons under its jurisdiction and that “[i]t cannot be the case that, as a matter of law, States can ignore known threats to [their life] just because [they are] not arrested or otherwise detained.” W. Delgado Páez v. Colombia, Communication No. 195/1985, Views adopted on 12 July 1990, U.N. GAOR, Doc. A/45/40 (vol. II), at 47, para. 5.5. So, “security of a person” cov- ers more than persons under state custody, otherwise the Covenant would be rendered completely ineffective. The HRC has constantly reiterated this stance. See a recent case, Mariam Sankara et al. v. Burkina Faso, CCPR/C/86/D/1159/2003 (2006), Views adopted on 28 March 2006, para. 12.3.

32 Article 9(1) of the ICCPR reads: Everyone has the right to liberty and security of person. No one shall be subjected to arbi- trary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

33 Nowak distinguishes between the terms “arrest” and “detention,” the first meaning the act of deprivation of liberty for a period up to the moment the person is brought before the competent authority, while the latter referring to the state of deprivation of liberty following arrest, conviction, abduction, etc. Nowak, supra note 28, at 221, para. 21.

34 Id. at 211, para. 2. 35 Id. at 236, para. 51. 36 The HRC, in its Views adopted on July 20, 2000, in Communication No. 770/1997, Gridin

v. Russian Federation, U.N. GAOR, Doc. A/55/40 (vol. II), at 175, para. 8.1., found a viola- tion of Article 9 (1) when a warrant to arrest a person was issued more than three days later, contrary to the domestic law which required a warrant to be issued within 72 hours after arrest, and it held that the person had been “deprived of his liberty in violation of a procedure as established by law.”

43Due Process in Peacetime: International Law

specific and predictable. Arbitrariness�� occurs not only when the law is missing, but also when the law is vague, broad or unpredictable,�� as well as when the enforcement of the law takes place arbitrarily.�� Prolonged detention without charges is arbitrary. The HRC has, for example, concluded that holding a person in detention for a period of sixteen months without criminal charges against him, only to make him reveal the location of his brother, constitutes “arbitrary arrest and detention” and violates Article 9(1). The same provision is violated when a person is arrested without war- rant and then kept in detention without any court order,�0 or when a person is kept in any form of detention, including house arrest, though there is a judicial order to release him.�� However, detention is justified if exercised to prevent a person from fleeing after having committed a crime, and in such a case the HRC found detention on remand�� to be legitimate under article 9(1).

The lawfulness of arrest and detention also requires that that deprivation of liberty must not be manifestly disproportional, unjust or unpredictable, or motivated by dis- crimination,�� and that the arrest be carried out by competent officials authorized by law to order deprivation of someone’s liberty. It includes as well the presumption of release pending trial. The HRC has noted that detention pending trial should not be the rule, but “an exception and as short as possible.��” Prohibition of arbitrary arrest

37 In the case of Fongum Gorji-Dinka v. Cameroon, CCPR/C/83/D/1134/2002, Views adopt- ed on 10 May 2005, the HRC explained that “arbitrariness is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropri- ateness, injustice, lack of predictability and due process of law,” at para. 5.2., available at: http://www.bayefsky.com/./doc/cameroon_t5_iccpr_ 1134_2002.doc .

38 See the HRC’s Views adopted on July 21, 1994, in Communication No. 458/1991, Albert Womah Mukong v. Cameroon, U.N. GAOR, Doc. A/49/40 (vol. II), at 181, para. 9.8, clari- fying the meaning of the term “arbitrariness” states that “is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.”

39 See Kurbonov v. Tajikistan, CCPR/C/86/D/1208/2003, Views adopted on 16 March 2006, para. 6.5., where the police officers had “groundlessly detained [the victim] there for 21 days without official record.” Available at http://www.bayefsky.com/./doc/tajikistan_t5_ iccpr_1208_2003.doc .

40 Communication No. 90/1981, L. Magana ex-Philibert v. Zaire, Views adopted on 21 July 1983, U.N. GAOR, Doc. A/38/40, at 200, paras. 7.2 and 8.

41 In Fongum Gorji-Dinka v. Cameroon, supra note 145, the HRC noted that “house arrest was imposed on him after his acquittal and release by virtue of a final judgment of the Military Tribunal,” and it found it to be arbitrary, constituting a violation of Article 9 (1). Id. at para. 5.4.

42 A. W. Mukong v. Cameroon, supra note 38, para. 9.8. 43 Nowak, CCPR Commentary, supra note 28, at 225, para. 30. 44 HRC, General Comment 8, para.3, available at http://www1.umn.edu/humanrts/gen-

comm/hrcomms.htm.

44 Chapter II

and detention has gained the status of customary international law,�� and it binds all states regardless of the fact whether they have ratified the ICCPR or not.

Incommunicado detention and forced disappearances�� are other gross violations of due process. The HRC has found a breach of Article 9 of the Covenant in cases where people have been abducted by secret service agents,�� held incommunicado�� under domestic law, and later involuntarily disappeared�� or even murdered.�0 The HRC has elaborated on this issue in its General Comment No. 20 on Article 7,�� where it has required expressis verbis that “provisions should … be made against in- communicado detention.”�� Foreign nationals must be notified of their right to con- tact their consulate and should be allowed to receive visits from the representatives of their government.��

45 See General Comment 24 (52), on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declara- tions under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994), para. 8, available at http://www1.umn.edu/ humanrts/gencomm/hrcom24.htm.

46 No wonder, forced disappearances became the first issue that the newly constituted Hu- man Rights Council took up for discussion. The Council, in its first session, adopted by consensus the draft International Convention for the Protection of All Persons from En- forced Disappearance. See U.N.: Mixed Start for New Human Rights Council: Body Must Be Even-handed in Addressing Rights Crises, Human Rights Watch, June 30, 2006, available at: http://hrw.org/english/docs/2006/06/30/global13685.htm.

47 Communication No. 52/1979, Lopez Burgos v. Uruguay, Views adopted 29 July 1981, CCPR/C/13/D/ 52/1979.

48 Communication No. 176/1984, L. Peñarrieta et al. v. Bolivia, Views adopted on 2 Novem- ber 1987, U.N. GAOR, Doc. A/43/40, at 207, para. 16.

49 Communication No. 540/1993, C. Laureano v. Peru, Views adopted on 25 March 1996, U.N. GAOR, Doc. A/51/40 (vol. II), at 114, para. 8.6.

50 Communication No. 612/1995, Arhuacos v. Colombia, Views adopted on 29 July 1997, in U.N. GAOR, Doc. A/52/40 (vol. II), at 181-182, para. 8.6.

51 General Comment No. 20, para. 11 states, inter alia: “To guarantee the effective protec- tion of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings.”

52 General Comment No. 20, para. 11. See also Principle 16 of the Body of Principles, supra note 10, requiring that the family of any arrested or detained person be notified promptly of the arrest and the location of their family member, as well as of any change if the de- tainee is moved to another facility, as well as Rule 92 of the Standard Minimum Rules, supra note 10.

53 See Vienna Convention on Consular Relations, April 24, 1963, Article 36; Breard Case (Para. v. U.S.), 1998 I.C.J. 99 (Provisional Measures); LaGrand Case (Ger. v. U.S.), 2001 I.C.J. 104 (Judgment); Avena Case (Mex. v. U.S.), Judgment of 31 March 2004, in Reis- man et al., International Law in Contemporary Perspective 1018-1028 (2004).

45Due Process in Peacetime: International Law

Relevant to our discussion is also the preventive detention for reasons of public security or public order. The inherent vagueness of the definition of these terms could easily result in legal uncertainty and consequently in a violation of interna- tional law. The HRC in General Comment No. 8 on Article 9 of the Covenant has stated that “… if so-called preventive detention is used, for reasons of public secu- rity, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), in- formation of the reasons must be given (para. 2) and court control of the deten- tion must be available (para. 4) as well as compensation in the case of a breach (para. 5). And if, in addition, criminal charges are brought in such cases, the full protection of article 9(2) and (3), as well as article 14, must also be granted.”�� Article 9 (2)�� provides that anyone arrested must be immediately�� informed of legal and factual grounds�� for the deprivation of their liberty, so that they would be able to challenge the legality of detention before a competent judicial authority, and if charged, to start preparing their defense. Also, although the ICCPR does not express- ly provide for the right to the notification in a language that the person concerned understands, the HRC has clarified its view that this should be the case,�� further-

See also id., at 104-140; and Body of Principles, supra note 10, Rule 16(2); Standard Mini- mum Rules, supra note 10, Rule 38.

54 General Comment No. 8, para. 4. 55 Article 9 (2) of the ICCPR states:

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

56 The HRC in P. Grant v. Jamaica concluded that informing a person of charges against him seven days after his arrest amounts to a violation of Article 9 (2), (see Communica- tion No. 597/1994, P. Grant v. Jamaica, Views adopted on 22 March 1996, U.N. GAOR, Doc. A/51/40 (vol. II), at 212, para. 8.1.), whereas a delay of 45 days does not meet its requirements (see Communication No. 248/1987, G. Campbell v. Jamaica, Views adopted on 30 March 1992, at 246, para. 6.3).

57 A violation of Article 9 (2) was found in the case of L. B. Carballal v. Uruguay where the victim was arrested on grounds of “subversive activities” without giving a meaning to the term under the penal legislation. Communication No. R.8/33, L. B. Carballal v. Uruguay, Views adopted on 27 March 1981, U.N. GAOR, Doc. A/36/40, at 128-129, paras. 12-13. Also in the case of Drescher Caldas v. Uruguay (43/1979), 21 July 1983, 2 Sel. Dec. 80, the Committee held that “it was not sufficient simply to inform [the detainee] that he was being arrested under the prompt security measures without any indication of the substance of the complaint against him.” Violation was also found in the case of Kelly v. Jamaica, where the victim was not informed of the facts of the crime for which he was arrested nor the identity of the victim for several weeks, see Kelly v. Jamaica (253/1987), 8 April 1991, Report of the HRC, U.N. Doc. A/46/40, 1991, para. 5; nor was it sufficient to inform the detainee that he was arrested on the orders of the President of the country, see Communication No. 414/1990, P. J. Mika Miha v. Equatorial Guinea, Views adopted on 8 July 1994, U.N. GAOR, Doc. A/49/40 (vol. II), at 99, para. 6.5.

58 Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Hu- man Rights Treaty Bodies, U.N. Doc. HRIGEN1Rev.1 at 14 (1994), para. 8, available

46 Chapter II

more carefully interpreting the relationship between the two information obligations provided by this provision.��

Article 9(3)�0 guarantees prompt judicial control of the detention for the purposes of criminal justice. The HRC determined that this promptness should not exceed a few days,�� and that this delay should have a justification.�� Thus, detention of a person for seven days, without an arrest warrant and without being brought before a judge, was found to violate this provision.�� A fortiori, the holding of persons for a pe- riod of two months without being notified of the reasons and without being brought before a court constitutes a breach of Article 9.�� Effective judicial review in the case of detention is important in order to assess whether the arrest is lawful, whether de- tention is necessary or whether the person should be released pending trial, as well as in order to safeguard the fundamental rights of the detainee.

This provision also guarantees review of detention by a judge or other judicial of- ficers authorized to exercise judicial power, which means that those exercising judi- cial authority must be “independent, objective and impartial in relation to the issues

at http://www1.umn.edu/humanrts/gencomm/hrcom13. htm (last visited on June 13, 2006).

59 See Griffin v. Spain, Communication No. 493/1992, where a Canadian tourist was arrest- ed at 11:30 pm, searched and found 68 kilograms of hashish. In absence of an interpreter at that time, he was informed of the charges against him, the following morning. In para. 9.2., the Committee argues: “that although no interpreter was present during the arrest, it is wholly unreasonable to argue that the author was unaware of the reasons for his arrest. In any event, he was promptly informed, in his own language, of the charges held against him.”

60 Article 9(3) of the ICCPR states: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

61 See paragraph 2 of General Comment No. 8 on Article 9 of the ICCPR: Right to liberty and security of persons, (30/06/1982), available at http://www.unhchr.ch/tbs/doc.nsf/ (Symbol)/f4253f9572cd4700c125 63ed00483bec?Opendocument. See also L. Stephens v. Jamaica, Communication No. 373/1989, Views adopted on 18 October 1995, U.N. GAOR, Doc. A/51/40 (vol. II), at 9, para. 9.6.

62 M. Freemantle v. Jamaica, Communication No. 625/1995, Views adopted on 24 March 2000, U.N. GAOR, Doc. A/55/40 (vol. II), at 19, para. 7.4.

63 Kurbanov v. Tajikistan, Communication No. 1096/2002, CCPR/C/79/D/1096/2002 (2003), para. 7.2., available at http://www1.umn.edu/humanrts/undocs/1096-2002. html.

64 Bee et al. v. Equatorial Guinea, CCPR/C/85/D/1152&1190/2003(2005), Views adopted 31 October 2005, para. 6.2., available at http://www.bayefsky.com/./doc/equatorialguinea_ t5_iccpr_1152_1190_ 2003.doc.

47Due Process in Peacetime: International Law

dealt with.”�� So, in the case of Kulomin v. Hungary, the HRC concluded that “[i]n the circumstances of the instant case, the Committee is not satisfied that the public prosecutor could be regarded as having the institutional objectivity and impartiality necessary to be considered an “officer authorized to exercise judicial power” within the meaning of article 9(3).”�� The same was concluded in a recent case against Be- larus,�� where the Committee argued that “it is inherent to the proper exercise of judicial power, that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with.”

“Trial within a reasonable time” or “release” is another safeguard of Article 9(3), which also sanctions that: “It shall not be the general rule that persons awaiting trial shall be detained in custody.” The term “reasonable time” of pre-trial detention has been assessed by the HRC on a case-by-case basis. Issues factoring into a “reason- able time” include: the seriousness of the alleged offence; the nature and severity of the penal sanctions; risk of relapse into crime; concerns for public order due to the gravity of the offence; concerns of pressure on witnesses and risk of collusion; and the risk of flight of the accused if released. The national authorities’ performance and the need that they display “special diligence” in conducting the proceedings, particularly as regards the complexity and special characteristics of the investigation, are also considered. In dealing with complaints related to undue delay, the HRC has gener- ally concluded that considerations of written proceedings of criminal investigations, “evidence gathering,” or budgetary constraints�� are not justifications for detention lasting four years after arrest in that particular case, and the Committee had found a violation of Article 9(3).

This provision indirectly provides for release from pre-trial detention in exchange for bail,�� and though states are allowed a broad discretion in this respect, the HRC found a violation of Article 9(3) in the case of Hill v. Spain, stating that “[t]he mere conjecture of a State party that a foreigner might leave its jurisdiction if released on bail does not justify an exception to the rule laid down in Article 9(3) of the Cov- enant.”�0

65 Vladimir Kulomin v. Hungary, Communication No. 521/1992, CCPR/C/50/D/521/1992 (1996), para. 11.3., available at http://www1.umn.edu/humanrts/undocs/html/VWS52156. htm.

66 Ibid. 67 Yuri Bandajevsky v. Belarus, CCPR/C/86/D/1100/2002, Views adopted on 28 March

2006, para. 10.3., available at http://www.bayefsky.com/./doc/belarus_t5_iccpr_1100_ 2002.doc.

68 N. Fillastre and Bizouarn v. Bolivia, Communication No. 336/1988, Views adopted on 5 November 1991, U.N. GAOR, Doc. A/47/40, at 306, para. 6.5.

69 Nowak, CCPR Commentary, supra note 28, at 234, para. 47. 70 Michael and Brian Hill v. Spain, Communication No. 526/1993, CCPR/C/59/D/526/1993,

Views adopted on 2 April 1997, available at http://www1.umn.edu/humanrts/undocs/ html/VWS526.HTM.

48 Chapter II

Article 9(4)�� guarantees the right to have the legality of detention decided in a speedy fashion by a court. There are a number of legal procedures that stem from this provision. First, the HRC has argued that the right to challenge the legality of one’s deprivation of liberty must be effectively available, and in the case of H. G. Dermit on behalf of G. I. and H. H. Dermit Barbato�� the Committee found a violation of Article 9(4) because the person had been held incommunicado and in this way “ef- fectively barred from challenging his arrest and detention.”�� Also in two cases against Uruguay, namely Santullo Valcada v. Uruguay�� and W. T. Ramírez v. Uruguay,�� the Committee found a violation of article 9(4) since the persons deprived of their liberty were denied an effective remedy to challenge their arrest and detention, since the writ of habeas corpus has been inapplicable to them. Breach of this provision was also found in a case where the person was detained for twenty three days without right to challenge the legality of his detention, because he was detained under a decree on measures against terrorism.�� Thus, this provision asks for procedures such as habeas corpus that are simple, expeditious as well as free of charge if the detainee does not have the necessary means to pay for it.��

The guarantee provides that the proceedings to challenge the lawfulness of deten- tion be brought before a court in order to ensure “a higher degree of objectivity and independence,” as the HRC held in the case of M. I. Torres v. Finland,�� where the detention order was only confirmed after seven days and by the Minister of the In- terior, thus in violation of Article 9(4) requirements of “a court” and “without delay.” As regards the notion of without delay, while the HRC notes that “the adjudication of a case by any court of law should take place as expeditiously as possible…it must [however] be assessed on a case by case basis.”��

71 Article 9(4) of the ICCPR states: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take pro- ceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

72 Communication No. 84/1981, H. G. Dermit on behalf of G. I. and H. H. Dermit Barbato, Views adopted on 21 October 1982, U.N. GAOR, Doc. A/38/40.

73 Id. at 133, para. 10. 74 Communication No.R.2/9, E. D. Santullo Valcada v. Uruguay, Views adopted on 26 Oc-

tober 1979, U.N. GAOR, Doc. A/35/40, at 110, para. 12. 75 Communication No. R.1/4, W. T. Ramírez v. Uruguay, Views adopted on 23 July 1980, at

126, para. 18. 76 Yuri Bandajevsky v. Belarus, supra note 67, paras. 10.2. and 10.4. Bandajevsky was de-

tained under the Presidential Decree “On the urgent measures for the fight of terrorism and other particularly dangerous violent crimes,” which limited his defense options.

77 See also Body of Principles, supra note 10, Principle 32(2), whereas Principles 11 (3), 32 and 39 provide for the right of continuing review of the legality of detention at reasonable intervals.

78 Communication No. 291/1988, M. I. Torres v. Finland, Views adopted on 2 April 1990, U.N. GAOR, Doc. A/45/40 (vol. II), at 99-100, para. 7.2.

79 Id. at 100, para. 7.3.

49Due Process in Peacetime: International Law

In interpreting Article 9(4), the HRC has placed crucial importance on the right of access to and assistance of a lawyer. In the case of G. Campbell v. Jamaica,�0 the Committee found a violation of Article 9(4), because the person detained was denied access to legal representation for about four months, consequently “he was not in due time afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention.”�� A violation was also found when the detained has had no access to legal representation for an interval of two months and a half.�� In general, the HRC has emphasized that “all persons arrested must have immediate access to counsel.”��

The last paragraph of Article 9�� provides for a right to compensation applicable to all unlawful or arbitrary arrests and detentions.�� The HRC has thus held that in case of arbitrary arrests the state is “under an obligation to take effective measures to remedy the violations … suffered, to grant [the victim] compensation under article 9, paragraph 5, of the Covenant, on account of his arbitrary arrest and detention, and to take steps to ensure that similar violations do not occur in the future.”��

Before analyzing Article 14 of the ICCPR, which is the key universal provision regarding fair trial, it is of significance to examine Article 10,�� which provides for

80 Communication No. 248/1987, G. Campbell v. Jamaica, Views adopted on 30 March 1992, U.N. GAOR, Doc. A/47/40.

81 Id. at 246, para. 6.4. 82 Communication No. 330/1988, A. Berry v. Jamaica, Views adopted on 7 April 1994, U.N.

GAOR, Doc. A/49/40 (vol. II), at 26, para. 11.1. 83 Concluding Observations of the HRC: Georgia, CCPR/C/79/Add.74, 9 April 1997, para.

28. Note also that the UN Special Rapporteur on Torture has recommended that anyone who has been arrested “should be given access to legal counsel no later than 24 hours after the arrest.” Report of the UN Special Rapporteur on Torture, U.N. Doc. E/CN.4/1990/17, 18 December 1989, para.272; see also U.N. Doc. E/CN.4/1995/34, 12 January 1995, para. 926. See further Principle 15 of the Body of Principles, supra note 10, which states that a detainee must be able to communicate with counsel within “a matter of days.”

84 Article 9(5) of the ICCPR provides: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

85 General Comment No. 8(16), U.N. GAOR, Doc. A/37/40, at 95, para. 1 and at 96, para. 4.

86 Monja Jaona v. Madagascar, Communication No. 132/1982, U.N. Doc. Supp. No. 40 (A/40/40) (1985), at 179, para. 16, available at http://www1.umn.edu/humanrts/undocs/ session40/132-1982.htm .

87 Article 10 of the ICCPR states: 1. All persons deprived of their liberty shall be treated with humanity and with respect

for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from

convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(b) Accused juvenile persons shall be separated from adults and brought as speed- ily as possible for adjudication.

50 Chapter II

the humane treatment of detainees. This is a very important provision, because in conditions of enclosed facilities, the persons deprived of their liberty are extremely vulnerable as far as power relationships are concerned.�� In such circumstances, vio- lations of the right to life and physical integrity, right to privacy, right to secrecy of correspondence, freedom of religion, information and expression, etc. are more likely to happen. In its General Comment 21, the HRC has noted that no hardships or con- straints should be imposed upon detainees except those “resulting from the depriva- tion of their liberty….” It goes on to state that “[p]ersons deprived of their liberty enjoy all the rights set forth in the [ICCPR], subject to the restrictions that are unavoidable in a closed environment.”�� It is the duty of the states to treat persons in their custody with respect for their inherent dignity and nothing can justify inhumane treatment. More specifically, the HRC has held that states are obliged to provide all detainees and prisoners with services that will satisfy their essential needs,�0 such as food,�� washing and sanitary facilities,�� bedding,�� clothing,�� medical care,�� access to natu- ral light,�� recreation, physical exercise, facilities to allow religious practice and com-

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

88 See Nowak, CCPR Commentary, supra note 28, at 242, para. 2. 89 Human Rights Committee, General Comment No. 21 on Article 10, paras. 3 and 5. 90 See in this respect generally Kelly v. Jamaica, (253/1987), 8 April 1991, Report of the HRC,

U.N. Doc. A/46/40 (1991); Párkányi v. Hungary (410/1990), 27 July 1992, Report of the HRC, U.N. Doc. A/47/40 (1992).

91 See Standard Minimum Rules for the Treatment of Prisoners, supra note 10, Rules 20 and 87.

92 Yuri Bandajevsky v. Belarus, supra note 67, para. 10.6. A violation was found since the detainee “did not have items of personal hygiene or adequate personal facilities,” avail- able at http://www.bayefsky.com/./doc/belarus_t5_iccpr_1100_2002.doc .

93 In Fongum Gorji-Dinka v. Cameroon, supra note 41, the HRC held that holding a person in “a wet and dirty cell without a bed, table or any sanitary facilities” violates the detain- ee’s right under Article 10 (1). The HRC adds that detainees “must be treated in accord- ance with, inter alia, the Standard Minimum Rules for the Treatment of Prisoners (1957).” Id. at para. 5.2.

94 Standard Minimum Rules for the Treatment of Prisoners, supra note 10, Rules 17, 18, and 88; also, Body of Principles, supra note 10, Principles 15-16.

95 Body of Principles for the Protection of All Persons under Any Form of Detention or Im- prisonment, supra note 10, Principle 24; Standard Minimum Rules for the Treatment of Prisoners, supra note 10, Rules 22-25, 91; also see Code of Conduct for Law Enforcement Officials, Adopted by General Assembly resolution 34/169 of 17 December 1979, Article 6 (imposing a duty on officials to ensure the health of prisoners), at http://www.unhchr. ch/html/menu3/b/h_comp42.htm.

96 The HRC found treatment contrary to Article 7 and Article 10 in the case of Polay Cam- pos v. Peru (Communication No. 577/1994), where the detainee could not “have more

51Due Process in Peacetime: International Law

munication with others�� including those in the outside world. So the HRC found a violation of Article 10(1) of the ICCPR in the case of Griffin v. Spain�� where the de- tainee had been held in a 500-year-old prison under totally unacceptable inhumane conditions. Prolonged solitary confinement in total isolation from the outside world also amounts to inhumane treatment, as does incommunicado detention and forced disappearance.�� In a recent case, the HRC had an interesting interpretation of Ar- ticle 10 (1) when considering a detainee of Aboriginal status. The Committee found the solitary confinement to a dry cell to be “incompatible with his… status as an Ab- original, for whom segregation, isolation and restriction of movement within prison have a particularly deleterious effect.”�00 Article 10(2) (a) requiring that the accused persons be segregated from the convicted ones, “save in exceptional circumstances,” and also be subject to separate treatment appropriate to their status as un-convicted persons, relates to the principle of presumption of innocence fundamental to any criminal proceedings. The HRC found a violation in a recent case where the detainee was “kept in a cell with 20 murder convicts” �0� and the state had failed to adduce “any exceptional circumstances which would have justified its failure to segregate the au- thor from such convicts in order to emphasize his status as an un-convicted person.” The qualification “save in exceptional circumstances” was used by the U.S. when add- ing an understanding to Article 10(2)(a), upon ratification of the ICCPR, noting that it allows for disregard of segregation of the accused from the convicted on grounds of the dangerousness of the accused, or of his option of waiving such a right for such purposes as to participate in special programs.�0�

than 10 minutes’ sunlight a day.” See Hanski & Scheinin, supra note 20, at 175, para. 8.7.

97 Polay Campos v. Peru (Communication No. 577/1994). For a year, held in total isolation, restrictions were placed on correspondence of the detainee with his family, and the HRC considered this inhuman treatment, inconsistent with the standards of Article 7 and Ar- ticle 10. See Hanski & Scheinin, supra note 20, at 174, para. 8.6.

98 Griffin v. Spain, supra note 59, at 52, paras 3.1 and 9.2. The facts of the case indicated that the 500 year old prison was infested with rats, lice and cockroaches. Men, women and children were held 30 people to a cell. Detainees were exposed to the cold and the wind. There was excrement on the floor and sea water was used for showers and often for drinking. Detainees were given urine-soaked mattresses and blankets, despite the exist- ence of new bed linen. There was a high incidence of suicide, self-mutilation, fights and beatings.

99 Nowak, CCPR Commentary, supra note 28, at 245, para. 10. 100 Brough v. Australia, CCPR/C/86/D/1184/2003, Views adopted 17 March 2006, para. 9.1,

available at http://www.bayefsky.com/./doc/australia_t5_iccpr_1184_2003.doc . 101 Fongum Gorji-Dinka v. Cameroon, supra note 41, para.5.3. 102 David P. Steward, United States Ratification of the Covenant on Civil and Political Rights:

The Significance of Reservations, Understandings, and Declarations, 42 DePaul L. Rev. 1183, 1199 (1993), referring to Senate Comm. on Foreign Relations, International Covenant on Civil and Political Rights. S. Exec. Rep. No. 23, 102d Cong., 2d Sess. (1992), reprinted in 31 I.L.M. 645, 656 (1992).

52 Chapter II

b. Due Process during Trial Article 14�0� of the ICCPR is one of the most comprehensive provisions delineating due process guarantees in criminal proceedings, and there is extensive case law and

103 Article 14 of the ICCPR states: 1. All persons shall be equal before the courts and tribunals. In the determination of any

criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impar- tial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed in- nocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of

the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to

communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal

assistance of his own choosing; to be informed, if he does not have legal as- sistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the at- tendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f ) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of

their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence be-

ing reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when

subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscar- riage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal pro- cedure of each country.

53Due Process in Peacetime: International Law

other interpretation of the HRC substantiating the understanding and functioning of all its paragraphs and sub-paragraphs. This article provides for a universal right to a fair trial in a suit at law,�0� and it is a provision based on liberal principles of the sepa- ration of powers and the independence of the judiciary vis-à-vis the executive.�0�

Article 14(1) starts by guaranteeing the right of access to court, which means that no law, administrative procedures, or lack of material resources can prevent someone from addressing a court or a tribunal in order to assert his rights. It also provides for equality before the courts and tribunals, side by side with Article 26 which provides for equality before the law. This is a fundamental protection of the right to a fair trial encompassing pre-trial and trial proceedings, ensuring not only equal access to court, but also guaranteeing a correct application of laws by the judiciary assuring that every person appearing before the court is not discriminated against on grounds of gender, race, origin, financial status, or even gravity of offence. It also connotes prohibition of separate courts based on races, sexes, religious beliefs, etc. and thus problematizes the admissibility of special courts such as military courts, and the po- tentiality of trying civilians in these courts.�0� The same paragraph stipulates that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The notion of fairness in a hearing in all suits at law encompasses a diversity of situations, and it has to be seen as an umbrella for a number of guarantees provided for in the rest of paragraphs, some of which have already been discussed. According to the HRC, the fairness of a trial is not a mere summing up of the individual guarantees provided for in Article 14; it is the whole conduct of the trial that determines its fair- ness. Under these circumstances, the states not only should observe these guarantees rigorously and without exception, but fairness might also impose further obligations on states,�0� particularly in special cases, such as the ones where capital punishment might be at stake.�0� A fair hearing includes several elements, with audiatur et altera pars and the principle of equality of arms as its corner stones,�0� but also including

104 The term “suit at law” refers to all kinds of court proceedings, including administrative proceedings, as it hinges on the nature of the right and not the status of one of the par- ties. See Dominic Mc Goldrick, The Human Rights Committee, Its Role in the Development of the International Covenant on Civil and Political Rights 415 (1994).

105 Nowak, supra note 5, at 306, para. 2. 106 Id. at 309, para. 7. 107 See generally General Comment No. 13, and particularly its paragraph 5, supra note 58.

This study will reference General Comment No. 13 on Article 14, as well as General Com- ment No. 32 that has been recently adopted, U.N. Doc. CCPR/C/GC/32 (2007).

108 Communication No. 272/1988, A. Thomas v. Jamaica, Views adopted on 31 March 1992, U.N. GAOR, Doc. A/47/40, at 264, para. 13.l.

109 This principle would mean that the prosecutor and the defendant should have equal ac- cess to hearings, inspection of records, submission of evidence, witnesses etc., so that ultimately both parties are entitled to full equality of treatment, though not absolutely requiring equal means and resources. Bottomline: the trial must not “put the accused

54 Chapter II

deference to the principle of adversarial proceedings and expeditious procedures.��0 The HRC reasoned on the grounds of equality of arms in the case of J. Campbell v. Jamaica,��� where the author of the communication complained that he had not had a fair trial because he had been placed at a disadvantage, when his ten-year-old son had been detained in order to intimidate him and testify against him. The Committee found a violation of the right to a fair trial, stating that seemingly no “special circum- stances existed to justify the detention of the author’s minor child,” and it also found a possible intimidation that questioned the reliability of the testimony attained under such circumstances.���

The following section will discuss, one by one, the various elements of Article 14 constituting a fair trial. Generally, however, the HRC found a violation of Article 14(1) in the case of Gridin v. Russian Federation,��� because the judge did not control the hostility and extreme pressure created in the court room��� by the people who were screaming that the defendant should be sentenced to death.��� In another circum- stance, a nolle prosequi plea was entered by the prosecutor after the defendant had pleaded guilty to manslaughter and, according to the Committee, this had enabled the prosecution to start fresh on exactly the same charge, violating in this way the right to a fair trial.��� A violation was also found in the case of N. Mpandanjila et al. v. Zaire,��� where the accused, political opponents of President Mobutu Sese Seko, had been subjected to arbitrary detention, had not been heard during pre-trial stages, were not summoned to court and thus were denied a fair and public trial.

unfairly at a disadvantage.” See Delcourt v. Belgium, ECtHR, Judgment of January 17, 1970, Series A, No. 11, para. 34.

110 See Case of Morael v. France, (207/1986), 28 July 1989, Report of the HRC, (A/44/40), 1989, at 210. See also Fei v. Colombia, Communication No. 514/1992, CCPR/C/53/D/514/1992 (1995), where the HRC makes the point of expeditious proceedings.

111 Communication No. 307/1988, J. Campbell v. Jamaica, Views adopted on 24 March 1993, U.N. GAOR, Doc. A/48/40 (vol. II).

112 Id. at 44, para. 6.4. 113 Communication No. 770/1997, Gridin v. Russian Federation (Views adopted on 20 July

2000), U.N. GAOR, Doc. A/55/40 (vol. II). The author alleged, inter alia, that the court room was crowded; id. at 173, para. 3.5.

114 Id. at 176, para. 8.2. Other cases of the HRC stressing the principle of equality of arms include: Jansen Gielen v. The Netherlands, Communication No. 846/1999, CCPR/C/71/ D/846/1999 (2001), para. 8.2; Morael v. France, supra note 218, para. 9.3; Guesdon v. France, Communication No. 219/1986, CCPR/C/39/D/219/1986 (1990), para. 10.2; Wolf v. Panama, Communication No. 289/1988, CCPR/C/44/D/289/1988 at 80 (1992), para. 6.6; Fei v. Colombia, supra note 218, para. 8.4.

115 Gridin, supra note 113, at 173, para. 3.5. 116 The HRC noted that in the circumstances of this case the “purpose and effect” of the

nolle prosequi “were to circumvent the consequences” of the author’s guilty plea, and was not used to discontinue the proceedings against the defendant. See Communication No. 535/1993, L. Richards v. Jamaica, Views adopted on 31 March 1997, U.N. GAOR, Doc. A/52/40 (vol. II), at 43, para. 7.2.

117 Mpandanjila et al. v. Zaire, (138/1983), 26 March 1986, 2 Sel. Dec. 164.

55Due Process in Peacetime: International Law

The phrase “justice must not be secret,” holds in itself the idea of better finding the truth publicly, as well as the right of the public in a democratic society.��� Obvi- ously, the provision guarantees for a public hearing, but no publicity of other stages of criminal proceedings. As regards the right to a public hearing, the HRC has noted that “the publicity of hearings is an important safeguard in the interest of the indi- vidual and of society at large.”��� The Committee states that trials in secret naturally violate Article 14(1), when there is nothing to justify this procedure within the IC- CPR,��0 and it goes on mandating that “both domestic legislation and judicial practice must provide for the possibility of the public attending, if members of the public so wish.”��� The HRC has found a violation of the right to a public hearing in cases brought against Peru, where the trial was conducted in precincts by “faceless judges,” and it urged that no trials be held behind closed doors, even in cases involving terror- ism-related offences.��� Even if the trial were not to be public because of exceptional circumstances��� enumerated in Article 14(1), the rendering of the judgment has to be made public:��� the precept of publicity of the decision applies nearly without restric-

118 Nowak, supra note 5, at 323-325, paras. 31-33. Nowak distinguishes between dynamic publicity of the proceedings of the judicial organs, i.e. the way the decision is made, and the static publicity of the judgment as a tool to supervise the proceedings when they have been completed. Id. at para. 31.

119 The HRC further emphasizes that “a hearing must be open to the public in general, in- cluding members of the press, and must not, for instance, be limited only to a particular category of persons.” General Comment No. 13 on Article 14 (1984), para. 6.

120 Communication No. 74/1980, M. A. Estrella v. Uruguay, Views adopted on 29 March 1983, U.N. GAOR, Doc. A/38/40, at 159, para. 10. Also see Darmon Sultanova v. Uz- bekistan, CCPR/C/86/D/915/2000 (2006), Views adopted on 30 March 2006, para. 7.5., where violation was found because the trial was largely held in camera.

121 Communication No. 215/1986, G. A. van Meurs v. the Netherlands, Views adopted on 13 July 1990, U.N. GAOR, Doc. A/45/40 (vol. II), at 59, para. 6.1. The HRC further observes that “courts must make information on time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, e.g., the potential public interest in the case, the duration of the oral hearing and the time the formal request for publicity has been made. Failure of the court to make large courtrooms available does not con- stitute a violation of the right to a public hearing, if in fact no interested member of the public is barred from attending an oral hearing.” Id. at para 6.2.

122 Preliminary Observations of the HRC: Peru, CCPR/C/79/Add.67, 25 July 1996, at para. 26.

123 Such exceptional circumstances include: morals, such as a hearing about a sexual offence (Z.P. v. Canada, No. 341/1998, paras. 4.6 and 5.6.); public order, which includes order in the courtroom (Gridin v. Russian Federation, supra note 113, at paras. 3.5 and 8.2.); national security relating to important and secret military facts or protection of judges; interest of the private lives of the parties; or interests of justice, which means only those extraordinary cases where the trial is endangered by the emotional expressions of the audience. See Nowak, supra note 5, at 325-326, paras. 34-35.

124 Preliminary Observations of the HRC: Peru, supra note 122, at 124, para. 6. See also Hu- man Rights Committee General Comment 13, para. 4, noting that this applies to judg-

56 Chapter II

tion,��� and the right to publication of judgments can be claimed by anyone, not just the parties, and even if the parties choose to waive this right.���

In order to uphold the rule of law and the effective protection of human rights, competent, independent and impartial tribunals��� established by law are a must in any modern constitutional state. This guarantee is also enshrined in Article 14(1).

A competent tribunal is one which has jurisdiction over the subject matter and the person to hear the case, and it conducts the trial within any applicable time limit prescribed by law. Moreover, this jurisdictional power must be determined gener- ally and independent of the case, by a statute or an unwritten norm of common law, which establishes the tribunals and delineates the subject matter and the territorial scope of their jurisdiction.��� Established by law also means that the court should be properly composed.��� Interpretation of “competency” could be extended to mean that judges have to be knowledgeable, skilled, and effective in their judicial expertise. Towards this end training and continued education of judges, particularly in interna- tional standards of human rights law is critical. Otherwise, implementation of human rights law will remain a wish-well cause. The HRC has emphasized such a need for judges, other legal professions and law enforcement officers.��0

Independence of the judiciary is part of the theory of separation of powers, which creates a system of mutual checks and balances that controls any abuse of power. An independent tribunal would be able to render judgments according to law only, free of any influence imposed on them by the executive,��� legislation or any other actor related to power. This provides for the possibility of protection of the human rights

ments rendered by all courts, including special and military courts and courts of appeal. 125 Nowak, supra note 5, at 323, para. 31. The only restriction in this respect is found in

Article 14 (1) for cases “where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

126 Id. at 329, para 40. 127 As per Nowak, “[n]ormally, the term tribunal corresponds to that of national and civil

courts, although a tribunal denotes a substantively determined institution that may devi- ate from the formally (and nationally) defined term court.” Id. at 319, para. 23.

128 Id. at para. 24. 129 The HRC found a violation of Article 14 (1) in the case of Yuri Bandajevsky v. Belarus,

supra note 67, because of “the unchallenged fact that the court that tried the author was improperly constituted” which in turn “means that the court was not established by law.” Id. at para. 10.10.

130 As in the case of Libyan Arab Jamahiriya, U.N. GAOR, Doc. A/54/40 (vol. 1), para. 134; or in the case of Sudan, U.N. GAOR, Doc. A/53/40 (vol. I), para. 132.

131 In the case of Oló Bahamonde v. Equatorial Guinea, Communication No. 468/1991, CCPR/C/49/D/468/1991 (1993), at para. 9.4., the HRC noted “that a situation where the functions and competences of the judiciary and the executive are not clearly distinguish- able or where the latter is able to control or direct the former is incompatible with the no- tion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant.” In the case of Pastukhov v. Belarus, Communication No. 814/1998, CCPR/C/78/D/814/1998 (2003), at para. 7.3., the HRC considered “that the author’s dis- missal from his position as a judge of the Constitutional Court, several years before the

57Due Process in Peacetime: International Law

and fundamental freedoms of the individual, and it is the judges’ responsibility to base their judgments on domestic law, including where applicable, the international law of human rights. The independence of the judiciary is the best guarantee that people will not take justice in their own hands. The individual independence of judges, to be free from fear of personal criticism or reprisals��� of any kind, can be threatened in many ways, such as by the manner in which the judges are appointed��� or elected,��� the insecurity of tenure,��� inadequate remuneration,��� etc. For this reason, in its case

expiry of the term for which he had been appointed, constituted an attack on the inde- pendence of the judiciary.”

132 The HRC has noted that judges must not be subjected to disciplinary action because of opposition to the merits of the case or cases they decide, and it expressed its concern in the above case concerning Belarus where “two judges were dismissed by the President … on the ground that in the discharge of their judicial functions they failed to impose and collect a fine imposed by the executive.” See U.N. GAOR, Doc. A/53/40 (vol. I), para. 149.

133 So, the HRC was concerned that in Bolivia the nomination of judges was not based on their competence but on their political affiliation; see U.N. GAOR, Doc. A/52/40 (vol. I), para. 224. In Zambia, Article 14 of the Covenant has not been complied with because judges were appointed or dismissed by the President without these decisions having been taken in consultation with some independent legal authority, even where the President’s decisions must be ratified by Parliament; see U.N. GAOR, Doc. A/51/40, para. 202. In Slovakia, the appointment of judges was made by the Government with approval of Par- liament, and the HRC noted that it could have a negative effect on the independence of the judiciary; see U.N. GAOR, Doc. A/52/40 (vol. II), para. 379. In Kyrgyzstan, lack of full independence of the judiciary was seen in the fact “that the applicable certification procedure for judges, the requirement of re-evaluation every seven years, the low level of salaries and the uncertain tenure of judges may encourage corruption and bribery;” see U.N. GAOR, Doc. A/55/40 (vol. I), para. 405.

134 The HRC has also expressed concern about the compatibility of the election system of certain judges in the United States with Article 14, particularly considering “the impact which the current system of election of judges may, in a few states, have on the im- plementation of the rights” guaranteed by article 14, and it welcomed “the efforts of a number of states in the adoption of a merit-selection system.” It went on recommending that the election system of the appointment of judges through elections be replaced by a system of appointment on merit by an independent body.

135 The HRC has found the practice of executive recertification or review of judges to be in- compatible with the requirement of the independence of the judiciary. So, for Lithuania, where the District Court judges had to undergo a review by the executive after five years of service in order to secure permanent appointment, the HRC recommended that “any such review process should be concerned only with judicial competence and should be carried out only by an independent professional body; see U.N. GAOR, Doc. A/53/40 (vol. 1), para. 173. Also, for Peru the HRC recommended that “the requirement for judges to be recertified be reviewed and replaced by a system of secure tenure and independent judicial supervision;” see U.N. GAOR, Doc. A/51/40, para. 352.

136 For details regarding the necessity for establishing the proper mechanisms to achieve the independence of the judiciary see Basic Principles on the Independence of the Judiciary, supra note 10, Principles 7, 10, 11, 12, 17-20.

58 Chapter II

law the HRC has unequivocally held that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception,”��� which means that it cannot be derogated from at any time under any circumstances. In addition to the above-mentioned institutional independence, the term also means administra- tive independence such as in the assignment of cases to judges within their court; financial independence, having enough funds to function effectively, which would also avoid yielding to outside pressures and corruption; jurisdiction competence to determine jurisdiction in order to be able to decide if issues are within their compe- tence; and, at all times, it means total independence in the decision-making process of each case. The criterion of independence, however, presupposes not only separa- tion of powers, but also the ability to stay free from the influence of powerful social groups such as the media, industry, political parties, religious entities, and so on.���

The right to an impartial tribunal means that in deciding cases the judges must base their judgment on facts in accordance with the law. They should be able to do that without any direct or indirect interferences, pressures, enticements, or threats, from anyone. Impartiality has to do with the particular holding of a given case, where the judge is not biased in any way, has no personal interest in the matter, is not guided by emotions, led by political motives, or influenced by “media justice.”��� The HRC has clarified the notion of “impartiality” to imply “that judges must not harbor pre- conceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties.”��0 The HRC has further noted that in addressing a jury, the presiding judge must not give instructions that are either arbi- trary, amount to a denial of justice, or violate his obligations of impartiality.���

Article 14(2) guarantees the right to be presumed innocent until proven guilty; this right conditions all the proceedings until pronouncement of final judgment. Pre- sumption of innocence represents a norm of customary international law,��� binding in this way all states, regardless of their status of ratification of the Covenant, and despite the fact that it might have not reached the status of a peremptory norm.���

137 See Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October 1992), U.N. GAOR, Doc. A/48/40 (vol. II), p. 20, para. 5.2 (emphasis added).

138 Nowak, supra note 5, at 320-321, para 26. 139 Id. at 321, para. 27. 140 Communication No. 387/1989, Arvo O. Karttunen v. Finland, Views adopted on 23 Octo-

ber 1992, U.N. GAOR, Doc. A/48/40 (vol. II), at 120, para. 7.2. 141 Communication No. 731/1996, M. Robinson v. Jamaica, Views adopted on 29 March

2000, U.N. GAOR, Doc. A/55/40 (vol. II), para. 9.4 at 128. 142 See General Comment 24 (52), on issues relating to reservations made upon ratification

or accession to the Covenant or the Optional Protocols thereto, or in relation to declara- tions under article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6 (1994), para. 8, available at http://www1.umn.edu/humanrts/ gencomm/hrcom24.htm .

143 For a discussion of customary international law, peremptory norms of international law and the issue of the prohibition of reservations or derogations from them, see generally Eckart Klein, A Comment on the Issue of Reservations to the Provisions of the Covenant Representing (Peremptory) Rules of General International Law, in Reservations to Hu-

59Due Process in Peacetime: International Law

The HRC in its General Comment 13��� clarifies that the presumption of innocence implies that the accused has the benefit of doubt and that the burden of proof of the charge lies with the prosecution, and that guilt has to be proved beyond a reasonable doubt, otherwise the accused must be found not guilty according to the ancient prin- ciple in dubio pro reo.��� The HRC explains that it is “a duty for all public authorities to refrain from prejudging the outcome of a trial.”��� This prejudgment can be mani- fested in acts like adverse public comments by authorities such as high-ranking law enforcement officials making public statements portraying the accused as guilty,��� excessive “media justice,” or trial by anonymous judges, which ultimately compromis- es the presumption of innocence.��� A change of venue could be considered in cases when expressions of hostility towards the accused could jeopardize the presumption of innocence, but the HRC allows an element of discretion on the part of a judge in decisions concerning the venue issue.��� Also, an excessive period of preventive de- tention affects the presumption of innocence.��0

It was noted above that the ICCPR does not expressly provide for the right to the notification of legal and factual grounds for the arrest and detention, in a language that the detainee understands. However, Article 14(3)(a) provides the right of the ac- cused “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” At this stage, the HRC has clarified that this applies to all persons charged with a criminal offence, even if they are not detained,��� and that the charge can be stated “either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based.”��� The HRC also cautions in the case of trials in absentia, that “the necessary steps

man Rights Treaties and the Vienna Convention Regime: Conflict, Harmo- ny or Reconciliation 59 (Ineta Ziemele ed., 2004).

144 Supra note 58. 145 Nowak, supra note 5, at 330, para. 44. 146 General Comment No. 13, para. 7. 147 See Gridin v. Russian Federation, supra note 113, paras. 3.5. and 8.3. 148 Communication No. 577/1994, R. Espinosa de Polay v. Peru, Views adopted on 6 Novem-

ber 1997, UN Doc. GAOR, A/53/40 (vol. II). In this case the victim was tried by a special tribunal of “faceless judges” who were anonymous and did not constitute an independent and impartial court.

149 Communication No. 591/1994, I. Chung v. Jamaica, Views adopted on 9 April 1998, U.N. GAOR, Doc. A/53/40 (vol. II), p. 61, para. 8.3.

150 Cagas et al. v. The Philippines, Communication No. 788/1997, 23 October 2001, CCPR/ C/73/D/788/1997, para. 7.3., where “the Committee is of the opinion that the excessive period of preventive detention, exceeding nine years, does affect the right to be pre- sumed innocent and therefore reveals a violation of article 14 (2).”

151 Supra note 58, at para. 8. 152 Ibid.

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should be taken to inform the accused beforehand about the proceedings against him.”���

Article 9(4), the right of access to and assistance of a lawyer, is furthered in Article 14(3)(b) which entitles everyone charged with a criminal offence “to have adequate time and facilities for the preparation of his defense��� and to communicate with counsel of his own choosing,” as well as Article 14(3)(d), which, inter alia, provides the right of the accused “… to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have suffi- cient means to pay for it.” In interpreting this right, the HRC has concluded that such legal assistance should be effectively available��� and offered in good time in order to be able to prepare his defense.��� Also, in its General Comment 13 regarding the meaning of notions contained in Article 14(3)(b), the HRC explained that “adequate time��� depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an as- sociation of his choice, he should be able to have recourse to a lawyer.”��� The HRC continues to explain that the confidentiality of communication between the accused

153 Communication No. 16/1977, D. Monguya Mbenge v. Zaire, Views adopted on 25 March 1983, U.N. GAOR, Doc. A/38/40, 138, paras. 14.1-14.2. Express violation of the duty to inform of the nature and the cause of the crime was also found in the case of Kurbanov v. Tajikistan, supra note 63.

154 Adequate time and facilities should be provided both to the defendant and his lawyer. See Basic Principles on the Role of Lawyers, supra note 10, Principle 21.

155 See Communication No. R.2/8, B. Weismann Lanza and A. Lanza Perdomo v. Uruguay, Views adopted on 3 April 1980, U.N. GAOR, Doc. A/35/40, at 118, para. 16; and Com- munication No. R.1/6, M. A. Millán Sequeira v. Uruguay, Views adopted on 29 July 1980, at 131, para. 16.

156 See Communication No. R.7/28, I. Weinberger v. Uruguay, Views adopted on 29 October 1980, U.N. GAOR, Doc. A/36/40. In this case the HRC found a violation of this provision because the person concerned did not have access to any legal assistance at all during the first ten months of his detention. Id at 119, para. 16. It is interesting to note here that New Zealand for some time held that the legal aid was to be available even for commu- nications procedure before the HRC, until it was reversed by the Court of Appeal in the case of Wellington District Legal Services Committee v. Pauline Eunice Tangiora [1998] 1 NZLR 129. See for this Elizabeth Evatt, supra note 24. Several paragraphs of Article 14 were also violated in the case of Bee et al. v. Equatorial Guinea, supra note 64, para. 6.3.

157 The HRC has noted that if the counsel and the accused consider that they have not had sufficient time and facilities to prepare for the defense, particularly in cases when a capi- tal punishment is at stake, it is “incumbent upon them to request the adjournment of trial.” See Communication No. 349/1989, C. Wright v. Jamaica, Views adopted on 27 July 1992, U.N. GAOR, Doc. A/47/40, at 315-316, para. 8.4.

158 General Comment No. 13, para. 9.

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and his lawyer is a requirement of the provision and that this communication should be held “without any restrictions, influences, pressures or undue interference from any quarter.”��� The same paragraph guarantees that this communication should be with counsel of the accused’s own choosing, except in cases when it is provided free of charge, and in some countries, on grounds of indigence, the defendant may not choose his own counsel, but is provided with legal aid through a public prosecutor’s office or by court appointment.��0 A violation was found in the case of Lopez Burgos v. Uruguay,��� where the defendant was obliged to accept the ex officio appointment of a colonel as his legal counsel.��� Moreover, the HRC has cautioned the domestic courts to ensure that “the conduct of a case by the lawyer is not incompatible with the interests of justice,” and the lawyer must use his best judgment in the interests of the client he represents.���

Article 14(3)(d), trial without undue delay, has been interpreted by the HRC in conjunction with paragraph 5 which provides for the right of the accused to have his conviction and sentence reviewed by a higher tribunal according to law. In such in- terpretation the HRC has also noted the need for duly reasoned judgments for all in- stances of appeal so as to create the conditions for an effective enjoyment of the right of the convicted person to have his conviction and sentence reviewed by a higher tribunal.��� Undue delay can be assessed for any stage of proceedings, from pre-trial through appeal. In determining whether has been an undue delay in a case, the con- duct of both the accused and the state has to be considered, and the burden of proof for justifying any delay, like complexity of a case or deliberate misconduct of the ac- cused, lies with the state.��� Long pre-trial detentions are considered undue delay.���

159 The HRC jurisprudence confirms this stance. Violation of Article 14 (1) (b) was found in the case of Nazira Sirageva v. Uzbekistan, CCPR/C/85/D/907/2000 (2005), Views adopted on 1 November 2005, where Mr. Siragev’s lawyer was prevented from seeing him confidentially, and had also been denied access to the Tashkent City Court’s records, under different pretexts. Id. at para. 6.3. Available at: http://www.bayefsky.com/./doc/uz- bekistan_t5_iccpr_907_2000.doc .

160 Steward, supra note 102. In the understandings to the ICCPR, the U.S. also included that there is not necessarily a right to counsel, with respect to offences for which imprison- ment is not imposed. Id. at 1200, referring to Senate Comm. on Foreign Relations, International Covenant on Civil and Political Rights. S. Exec. Rep. No. 23, 102d Cong., 2d Sess. (1992), reprinted in 31 I.L.M. 645 (1992), at 656.

161 Communication No. R.12/52, S. R. López Burgos v. Uruguay, Views adopted on 29 July 1981, U.N. GAOR, Doc. A/36/40.

162 Id. at 183, para. 13. 163 Communication No. 708/1996, N. Lewis v. Jamaica, Views adopted on 17 July 1997, U.N.

GAOR, Doc. A/52/40 (vol. II), at 251-252, para. 8.4. 164 See Communication No. 320/1988, V. Francis v. Jamaica, Views adopted on 24 March

1993, U.N. GAOR, Doc. A/48/40 (vol. II), at 66, para. 12.2. 165 See for this issue Hill v. Spain, supra note 70, para. 12.4. See also Thomas v. Jamaica, supra

note 108, para. 9.5. 166 Hill v. Spain, supra note 70, para. 12.4.

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In cases involving capital punishment, which runs under the qualification of the requirement for interests of justice, the HRC has emphasized that effective legal rep- resentation is “axiomatic” at all stages of the proceedings.��� The issue of free legal aid is provided for in Article 14(3)(d), and it has a two-pronged requirement: “where the interests of justice so require,” and “if [the accused] does not have sufficient means to pay for it.” In this respect a violation was found in the case of P. Taylor v. Jamaica,��� as “the absence of legal aid … denied the author the opportunity to test the irregularities of his criminal trial in the Constitutional Court in a fair hearing.”���

Article 14(3)(d) also provides that everyone has to be tried in his presence, and the HRC found a violation of this provision in the case of Mbenge v. Zaire,��0 where summonses were issued only three days before the trial and there had been no at- tempt to send them to the accused, who was living abroad, and whose address was known. Though the HRC does not seem to totally exclude trials in absentia, it notes that such a trial could be compatible with the Covenant, only if the accused is sum- moned “in a timely manner and informed of the proceedings against him.” It is the obligation of the State to show in such cases that the principles of a fair trial are at all times respected.���

Within this section it is necessary to briefly note the necessity of observance of human rights during criminal investigations. While certain limitations to rights are inherent in the condition of deprivation of liberty, there are a number of rights that should be observed at all times. The most important right is the right to freedom from torture, cruel or inhuman treatment or punishment as guaranteed by Article 7 of the ICCPR, demanding non-interference on the part of the state. This is a universal right that has risen to the level of jus cogens,��� from which no derogation is permit- ted.��� It should be respected at times of peace as well as war, without exception in

167 See Shukurova v. Tajikistan, CCPR/C/86/D/1044/200, Views adopted on 17 March 2006, para. 8.5. Also see Aliev v. Ukraine, Communication No. 781/1997, Views adopted on 7 August 2003, para. 7.3.

168 Communication No. 707/1996, P. Taylor v. Jamaica, Views adopted on 14 July 1997, U.N. GAOR, Doc. A/52/40 (vol. II).

169 Id. at 241, para. 8.2. 170 Mbenge v. Zaire, (16/1977), 25 March 1983, 2 Sel. Dec.76, at 78. 171 Communication No. 699/1996, A. Maleki v. Italy, Views adopted on 15 July 1999, U.N.

GAOR, Doc. A/54/40 (vol. II), at 183, paras. 9.2-9.3. 172 For an analysis of inter-relationship between the jus cogens legal status of certain interna-

tional crimes, like torture, and the respective legal implications, obligationes erga omnes, see M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 L. & Contemp. Probs. 63 (1996).

173 Eckart Klein, Reservations, supra note 143, at 62. Also see M. Cherif Bassiouni, States of Emergency and States of Exception: Human Rights Abuses and Impunity under Color of Law, in Non-Derogable Rights and States of Emergency 125 (Daniel Premont ed., 1996).

63Due Process in Peacetime: International Law

any circumstances��� in the course of criminal investigations and all stages of judicial proceedings. States are under an obligatio erga omnes��� to take effective legislative, administrative, judicial and other necessary measures to prevent torture from occur- ring in any territory under their jurisdiction,��� and even superior orders cannot be invoked as a justification of torture.��� The HRC in its General Comment No. 20��� has expressed the opinion that prolonged solitary confinement of the detainee could amount to torture or ill-treatment.��� Depriving detainees of food and drink for five consecutive days is also considered ill-treatment incompatible with Article 7.��0 The Committee has instructed states to make certain that any detention facilities are free from any equipment liable to be used to cause torture or ill-treatment,��� and has made it mandatory for enforcement personnel, police officers and any other persons involved in the custody or treatment of any individual in the custody of the state, to receive appropriate instruction and training.��� In a case where the state responded to allegations of torture in custody, that the beating had been committed by the co- detainees, the Committee, finding a violation, reasoned this way: “a State party is re- sponsible for the security of any person it deprives of liberty and, where an individual deprived of liberty receives injuries in detention, it is incumbent on the State party to provide a plausible explanation of how these injuries occurred and to produce evidence refuting these allegations.”��� The HRC has also made clear that “the burden

174 See, e.g., article 4(2) of the International Covenant on Civil and Political Rights; article 27(2) of the American Convention on Human Rights; article 15(2) of the European Con- vention on Human Rights; article 2(2) of the Convention against Torture and Other Cru- el, Inhuman or Degrading Treatment or Punishment; and article 5 of the Inter-American Convention to Prevent and Punish Torture. See further Body of Principles, supra note 10, Principle 6: “No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrad- ing treatment or punishment.” Also see Code of Conduct for Law Enforcement Officials, supra note 95, Article 5: “No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”

175 See generally Bassiouni, supra note 173. 176 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-

ishment, Article 2 (1). 177 Id. Article 2 (3) 178 General Comment No. 20 on Article 7 (1992), available at http://www.unhchr.ch/tbs/

doc.nsf/(Symbol) /6924291970754969c12563ed004c8ae5?Opendocument . 179 Id. at para. 6. See also Polay Campos v. Peru, supra note 96. 180 Bee et al. v. Equatorial Guinea, supra note 64, para. 6.1. 181 Supra note 178, at para. 11. 182 Id. at para. 10. 183 Nazira Sirageva v. Uzbekistan, supra note 159, para. 6.2.

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of proof that the confession was made without duress is on the prosecution,”��� and that “it is essential that complaints about torture must be investigated promptly and impartially by competent authorities.”��� In the context of this paper it is also worth noting that the HRC has cautioned states against exposing individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment through return- ing them to a country known to resort to such means, by way of their extradition,��� expulsion or refoulement.��� States, at all times, are asked to live up to their obliga- tions and to apply the higher level of protection,��� whether that higher level is offered by the domestic law or international agreements a state is party to. According to the Committee, another practice that could constitute cruel, inhuman or degrading treatment are prolonged judicial proceedings,��� particularly in cases involving capital punishment, though this penalty could be lawful according to some domestic laws.��0 The HRC has extended the scope of Article 7 to also prohibit “corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educa- tive or disciplinary measure.”��� In a recent case, the HRC found a breach of Article 7, “inhuman treatment” in the failure on the part of the authorities to notify the author of the communication of the execution of family members, and to give information

184 See Kurbonov v. Tajikistan, CCPR/C/86/D/1208/2003, Views adopted on 16 March 2006, para. 6.3., available at: http://www.bayefsky.com/./doc/tajikistan_t5_iccpr_1208_2003. doc.

185 Shukurova v. Tajikistan, supra note 167, para. 8.2. See also Darmon Sultanova v. Uz- bekistan, CCPR/C/86/D/915/2000 (2006), Views adopted on 30 March 2006, para. 7.2. and 7.3., where the Committee finding a violation of Article 7, Article 14 (2)and (3)(g) noted that “allegations of torture were brought to the attention of the authorities by the victims themselves, and that they were ignored.” Also the burden of proof was laid on the accused as to whether the confession was voluntary.

186 See generally the jurisprudence of the HRC regarding extradition cases of Kindler v. Can- ada, Ng. v. Canada and Cox v. Canada, analyzed in Margaret De Merieux, Extradition as the Violation of Human Rights. The Jurisprudence of the International Covenant on Civil and Political Rights, in 14 Netherlands Q. Hum. Rts. 23-33 (1996). The article, inter alia, brings forth the arguments of the HRC in considering extradition of the victims by Canada to the U.S. a breach of Article 7 of the Covenant, based on the fact that the condi- tions on death row as well as the “abhorrent” method of execution constituted cruel and inhumane treatment.

187 General Comment No. 20, supra note 178, para. 9. 188 Eckart Klein, Article 5 of the International Covenant on Civil and Political Rights, in To-

wards Implementing Universal Human Rights, 127, 141 (Nisuke Ando ed., 2004). 189 See Carlton Reid v. Jamaica, Communication No. 250/1987, CCPR/C/39/D/250/1987

(1990). In paragraph 6.5., the HRC states that “the author’s continued uncertainty as to whether or not a warrant for his execution will be issued, and the concomitant mental anguish, amounts to cruel, inhuman and degrading treatment in violation of article 7.” Available at http://www1.umn.edu/humanrts/undocs/session39/250-1987.html.

190 Steward, supra note 102. That is why the U.S. added a reservation to Article 7 of the IC- CPR. See Senate Comm. on Foreign Relations, ibid.

191 General Comment No. 20 (Art. 7), supra note 178, at para. 5.

65Due Process in Peacetime: International Law

about their burial places.��� Recently, in Boucherf v. Algeria,��� the Committee found a violation of Article 7 on several counts, such as “the degree of suffering involved in being held indefinitely without contact with the outside world,”��� the disappearance and repeated torture of the victim, and “the anguish and stress caused to the author [of the communication] by the disappearance of her son and the continued uncer- tainty concerning his fate and whereabouts.”���

Among other rights to be observed is the respect for one’s private life, home and correspondence, guaranteed by Article 17 of the ICCPR. This article brings to the fore issues of wire tapping, searches and interference with correspondence. Though there is no case law of the Committee regarding these issues, the HRC has expressed its opinion in its General Comment No. 16,��� which in paragraph 8 explains that even in cases related to interferences in conformity with the Covenant “relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted.” It goes on to clarify that article 17 “requires that the integrity and confi- dentiality of correspondence should be guaranteed de jure and de facto… without interception.” On the issue of surveillance, electronic or of any other type, the HRC asks that “interceptions of telephonic, telegraphic and other forms of communica- tion, wire-tapping and recording of conversations should be prohibited,” and search- es should be restricted to a search for necessary evidence, and they should be carried out in a manner consistent with the dignity of the person who is being searched.

Article 14(3)(c) guarantees that in criminal proceedings everyone has the right “to be tried without undue delay.” The HRC interpreted this paragraph in its General Comment No. 13��� commenting that the accused shall be tried without undue delay from the time when a trial commences to the time a judgment is rendered. It asks that all stages must take place without undue delay, and that in order to make this right effective, “a procedure must be available in order to ensure that the trial will proceed ‘without undue delay,’ both in first instance and on appeal.”��� The case law of the Committee testifies to the time frames considered as “undue delay.” So in the case of Earl Pratt and Ivan Morgan v. Jamaica,��� three years and nine months were too

192 Shukurova v. Tajikistan, supra note 167, para. 8.7. The HRC argued that “the secrecy sur- rounding the date of execution, and the place of burial, as well as the refusal to hand over the body for burial, have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress.” Ibid. The same argument is used in the case of Darmon Sultanova v. Uzbekistan, supra note 185, para. 7.10.

193 Boucherf v. Algeria, CCPR/C/86/D/1196/2003 (2006), Views adopted on 30 March 2006, available at http://www.bayefsky.com/./doc/algeria_t5_iccpr_1196_2003.doc.

194 Id. at para. 9.6. 195 Id. at para. 9.7. 196 General Comment No. 16 on Article 17 (1988), para. 8, available at http://www.unhchr.

ch/tbs/doc.nsf/ (Symbol)/23378a8724595410c12563ed004aeecd?Opendocument. 197 Supra note 58. 198 Id. at para 10. 199 Communications Nos. 210/1986 and 225/1987, E. Pratt and I. Morgan v. Jamaica, Views

adopted on 6 April 1989, U.N. GAOR, Doc. A/44/40, at 229, para. 13.3.

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long a time for the Court of Appeal to issue a written judgment, and it violates Article 14(3)(c) as well as Article 14(5),�00 because according to the Committee “in all cases, … accused persons are entitled to trial and appeal without undue delay, whatever the outcome of those judicial proceedings turns out to be,”�0� and oversights are not a justification. Even a delay of two years,�0� or twenty nine months�0� from arrest to trial was considered undue delay and was found to be in violation of Article 14(3)(c).

Article 14(3)(g) guarantees in criminal proceedings the right of the accused “not to be compelled to testify against himself or to confess guilt,” and this extends throughout all stages of the judicial proceedings. The HRC has considered this provision in close connection with Article 7 and Article 10(1), which respectively guarantee freedom from torture and other cruel, inhuman or degrading treatment and respect for the in- herent dignity of the human person. So the Committee has noted that in many cases state authorities resort to unlawful means in order to compel the accused to confess guilt or to testify against himself, and it asks for laws that would quash any evidence provided by such methods,�0� and that judges must be authorized “to consider any allegations made of violations of the rights of the accused during any stage of the prosecution.”�0� The HRC also held that this right guarantees “absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt.”�0� In this respect violations were found in cases where the persons accused were forced into signing statements that incriminated them,�0� as well as in cases where recourse to torture and duress

200 As the delay did not allow the authors of the communication to appeal to the Privy Coun- cil, availing themselves of the guarantees provided in Article 14 (5), their right “to have [their] conviction and sentence … reviewed by a higher tribunal according to law.”

201 E. Pratt and I. Morgan v. Jamaica, para. 13.5. 202 Communication No. 672/1995, C. Smart v. Trinidad and Tobago, Views adopted on 29

July 1998, U.N. GAOR, Doc. A/53/40 (vol. II). 203 Communication No. 564/1993, J. Leslie v. Jamaica, Views adopted on 31 July 1998, U.N.

GAOR, Doc. A/53/40 (vol. II). 204 Supra note 58, at para. 14. See also General Comment No. 20, supra note 178, at para. 12,

where the HRC states that “it is important for the discouragement of violations under article 7 [of the ICCPR] that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.”

205 Ibid., at para. 15. See also Alexandros Kouidis v. Greece, CCPR/C/86/D/1070/2002, Views adopted on 28 March 2006, para. 7.5., where the Committee finding a violation of Ar- ticle 14 (3) (g), notes that this provision “entails an obligation of the State party to take account of any claims that statements made by accused persons in a criminal case were given under duress. In this regard, it is immaterial whether or not a confession is actually relied upon, as the obligation refers to all aspects of the judicial process of determination.” Available at http://www.bayefsky.com/./doc/greece_t5_iccpr_1070_2002.doc .

206 Communication No. 330/1988, A. Berry v. Jamaica, Views adopted on 7 April 1994, U.N. GAOR, Doc. A/49/40 (vol. II), at 28, para. 11.7.

207 Communication No. R.12/52, S. R. López Burgos v. Uruguay, Views adopted on 29 July 1981, U.N. GAOR, Doc. A/36/40, at 183, para. 13; and Communication No. R.18/73, M. A.

67Due Process in Peacetime: International Law

was exercised to compel the accused to confess guilt.�0� The Committee has held that any allegations of self-incrimination under duress should be brought by the accused or his lawyer to the attention of the trial judge.�0� When the state failed to investigate allegations of torture, which were “in fact made during the actual trial but was neither recorded nor acted upon,” the HRC has found a violation of this provision, because the victim’s conviction was based on the confession of guilt under duress.��0

Article 14(3)(e) guarantees that everyone charged with a criminal offense has the right “to examine, or have examined,��� the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” This provision is an important element of the principle of the equality of arms, ensuring that parties have equal access to the introduction of evidence��� by interrogating witnesses. The HRC has, however, noted that it does not provide for “an unlimited right to obtain the attendance of witnesses requested by the accused or his counsel.”��� This interpretation seems to be somehow in con- formity with the U.S. understanding of this provision that the defendant’s right to obtain witnesses on his behalf is based on his showing a necessity of such witness for his defense.��� The HRC has further argued that if any issues arise with respect to this provision, or in any other matter related to preparation of defense, the accused or his lawyer should bring them to the attention of the judge.��� Thus, the Committee found

Teti Izquierdo v. Uruguay, Views adopted on 1 April 1982, U.N. GAOR, Doc. at 186, para. 9.

208 Communication No. 74/1980, M. A. Estrella v. Uruguay, Views adopted on 29 March 1983, U.N. GAOR, Doc. A/38/40, at 159, para. 10; and Communication No. 328/1988, R. Z. Blanco v. Nicaragua, Views adopted on 20 July 1994, U.N. GAOR, Doc., A/49/40 (vol. II), at 18, para. 10.4.

209 Communication No. 330/1988, A. Berry v. Jamaica, Views adopted on 7 April 1994, U.N. GAOR, Doc. A/49/40 (vol. II), at 27, para. 11.3.

210 See Kurbanov v. Tajikistan, supra note 63, at paras. 7.4. & 7.5. 211 The active and passive formulation of this right is based on the distinction of two legal

systems, respectively accusatorial and inquisitorial trials. See Nowak, supra note 5, at 342, para 68, as he refers to Noor Muhammad, Due Process of Law for Persons Accused of Crime, in The International Bill of Rights 138 et seq. (Louis Henkin ed., 1981).

212 However, there are different stances on the use of anonymous evidence. The proponents find it to be “a necessary feature of a system of international criminal justice that has to protect those who come forward to give testimony of mass atrocities;” whereas its oppo- nents label it to be “an unjustified constraint on the right of defendants to cross-examine witnesses.” See Marks & Clapham, supra note 5, at 160.

213 Communication No. 237/1987, D. Gordon v. Jamaica, Views adopted on 5 November 1992, U.N. GAOR, Doc. A/48/40 (vol. II), at 10, para. 6.3.

214 Steward, supra note 102, at 1200, referring to Senate Comm. on Foreign Relations, ibid.

215 Communication No. 356/1989, T. Collins v. Jamaica, Views adopted on 25 March 1993, U.N. GAOR, Doc. A/48/40 (vol. II), at 88-89, para. 8.1.

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a violation of the provision in the case of C. Reid v. Jamaica��� where the trial judge refused to postpone the trial so as to enable the lawyer to prepare his examination of witnesses,��� though the legal aid attorney was only assigned to the accused on the day of his trial. A violation was also found in another case involving Jamaica,��� where a statement of a witness for the prosecution was not made available to the defense, obstructing in this way its cross-examination of witnesses. In a recent case the HRC found a breach of this provision because “none of the witnesses were present in the court room despite numerous requests to this effect from all eight co-defendants.”���

Two principles, namely nullum crimen sine lege and ne bis in idem (res judicata) are of utmost importance in any criminal proceeding. Article 15(1)��0 guarantees free- dom from ex post facto laws, and it refers to both national and international law in this respect. It also prohibits the imposition of a heavier penalty than the one sanc- tioned for the offence at the time it was committed. This principle is important to en- sure the foreseeability of law in a society governed by the rule of law, where the crime classifications as well as the respective penalties are clear and accessible to the public. The HRC found a violation of this provision in the case of I. Weinberger v. Uruguay,��� where the author was condemned for acts which did not constitute a crime at the time committed. This provision bars the imposition of a penalty heavier than the one which was valid at the time the offence was committed, and also provides for retro- active application of a lighter penalty on the offender if, after the commission of the offence, but before sentencing, the law has changed to sanction a lighter penalty,��� with a tendency to make the criminal law more humane.��� However, it is important to note the qualification contained in Article 15(2), which states that “[n]othing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the

216 Carlton Reid v. Jamaica, Communication No. 250/1987, CCPR/C/39/D/250/1987 (1990), available at http://www1.umn.edu/human rts/undocs/session39/250-1987.html.

217 Id. at 91, para. 11.3 read in conjunction with para. 4, at 87. 218 See Peart and Peart v. Jamaica, Communications Nos. 464/1991 & 482/1991, CCPR/C/54/

D/464/1991& 482/1991 (1995), paras. 11.4. & 11.5, available at: http://www1.umn.edu/hu- manrts/undocs/html/464-482-1991.html.

219 Darmon Sultanova v. Uzbekistan, supra note 185, para. 7.5. 220 Article 15(1) of the ICCPR states: “No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a criminal offence, under na- tional or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.”

221 Weinberger v. Uruguay, supra note 156, at 119, para. 16. 222 Nowak distinguishes between reversible and irreversible penalties and concludes that the

right to retroactive application of a lighter penalty generally applies only in cases where a penalty is irreversible, mentioning as exceptions cases of death penalty, life imprison- ment, and corporal punishment. See Nowak, supra note 5, at 365-367, paras. 18-21.

223 Id. at 365, para. 18.

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general principles of law recognized by the community of nations.” This is the only exception to the prohibition of retroactive laws and it has been interpreted to mean that states may apply retroactive domestic criminal laws in punishing such crimes as war crimes, crimes against peace and humanity, torture, slavery, etc., which violate customary international law.��� The HRC has called attention to the non-derogable nature of Article 15, as it relates to the principle of legality of criminal liability and punishment.���

The prohibition of double jeopardy is provided for in Article 14(7) stating that “no one shall be liable to be tried or punished again for an offence for which he has al- ready been finally convicted or acquitted in accordance with the law and penal pro- cedure of each country.” This provision mandates ne bis in idem within the law and penal procedure of each country,��� but it does not guarantee it in different national jurisdictions.��� It is worth mentioning here, that within the U.S., though it is one national jurisdiction, the prohibition of double jeopardy does not hinder trial in state and federal courts, or in two states for the same crime of one defendant.��� It is also important to note that some states permit a new criminal trial, even if a person has been acquitted or convicted, in cases of extraordinary circumstances such as serious procedural flaws or the coming to light of new facts,��� and have consequently made reservations to Article 14(7). The HRC has, however, encouraged States parties to reconsider such reservations.��0

c. Due Process in Appeal The right to judicial review of a conviction is guaranteed by Article 14(5), which states that “everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” Thus, this provision mandates

224 Id. at 368, para. 24. Whereas in effect, Article 15 (2) merely restates the position that persons may be held accountable for violations of international customary law, it allows States to legislate to this effect. See What is a Fair Trial? A Basic Guide to Legal Stand- ards and Practice, by Lawyers Committee for Human Rights (March 2000) available at http://www.humanrightsfirst.org/pubs/descriptions/fair_trial.pdf.

225 Hanski & Scheinin, supra note 20, at 157, referring to General Comment No. 29 (72) on states of emergency.

226 See Nowak, supra note 5, at 356, para. 99. 227 Communication No. 204/1986, A. P. v. Italy, Decision adopted on 2 November 1987, U.N.

GAOR, Doc. A/43/40, at 244, para. 7.3. stating, inter alia, that “The Committee observes that this provision prohibits double jeopardy only with regard to an offence adjudicated in a given state.”

228 For this reason, the U.S. added an understanding to Article 14(7) stating that prohibition of double jeopardy applies only when the judgment of acquittal has been rendered by the court of the same governmental unit, whether federal or state. This understanding was followed by criticism on the part of Lawyer’s Committee for Human Rights, International Human Rights Law Group, etc. See Steward, supra note 102.

229 Nowak, supra note 5, at 357, para. 100. 230 See supra note 58 regarding Procedural Guarantees in Civil and Criminal Trials, at para.

19.

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for the existence of higher courts of appeal in any domestic legislation, and the phrase “according to law” does not leave room for interference with this right, but has to do with the way this right has to be exercised; it requires that the domestic law should establish procedures and modalities to regulate the process of appeal.��� According to the HRC, the ICCPR provides for the full review of legal and material aspects of someone’s conviction and sentence, including the evaluation of the evidence and the conduct of the trial.��� Accordingly, the HRC found a violation of this provision in the case of Gomez v. Spain,��� since the Spanish Supreme Court could not re-evaluate the evidence. Consequently this provision requires preservation of sufficient evidentiary material until completion of the appeals procedure.��� In a most recent case, the HRC argued that the “supervisory review” invoked by the state was only limited to issues of law, and thus it could not be characterized as an “appeal.” ��� As mentioned above, legal assistance should be available in all stages of a criminal process including appeal, and the HRC finds a violation of Article 14(5), on the grounds of lack of effectiveness of appeal, where a lawyer abandons all grounds of appeal contrary to the wishes of the client, or where there is no lawyer to submit grounds of appeal.��� For the right to appeal to be effectively available it is also needed that the courts give reasoned judg- ments in a timely fashion,��� and that the transcripts of the trial be produced without

231 In para. 10.4. of the Communication No. R.15/64, C. Salgar de Montejo v. Colombia, Views adopted on 24 March 1982, U.N. GAOR, Doc., A/37/40, at 173, the HRC states: “The Committee considers that the expression according to law in article 14 (5) of the Covenant is not intended to leave the very existence of the right of review to the discre- tion of the States parties, since the rights are those recognized by the Covenant, and not merely those recognized by domestic law. Rather, what is to be determined according to law is the modalities by which the review by a higher tribunal is to be carried out.”

232 Communications Nos. 623, 624, 626, 627/1995, V. P. Domukovsky et al. v. Georgia, Views adopted on 6 April 1998, U.N. GAOR, Doc. A/53/40 (vol. II), at 111, para. 18.11. This stance of the HRC was previously stated in the case of Perera v. Australia, Communication No. 536/1993, para. 6.4., where it noted that Article 14(5) “does not require that a Court of Appeal proceed to a factual retrial, but that a court conduct an evaluation of the evidence presented at the trial and of the conduct of the trial.” See Nowak, supra note 5, at 349, para. 82.

233 Communication No. 701/1996, Gómez v. Spain. Views adopted on 20 July 2000, U.N. GAOR, Doc. A/55/40 (vol. II), at 109, para. 11.1.

234 The HRC has concluded that failure to preserve such evidential material, indispensable to perform an effective review, constitutes violation of Article 14 (5). See Communication No. 731/1996, M. Robinson v. Jamaica, Views adopted on 29 March 2000, U.N. GAOR, Doc. A/55/40 (vol. II), at 130, para. 10.7;

235 See Yuri Bandajevsky v. Belarus, supra note 67, at para. 10.13. The HRC further noted that “even if a system of appeal may not be automatic, the right to appeal within the meaning of article 14, paragraph 5, imposes on States parties a duty substantially to review convic- tion and sentence, both as to sufficiency of the evidence and of the law.” Ibid.

236 Hill v. Spain, supra note 70, at 18, para. 14.3. 237 The HRC has expressed grave concerns for the unavailability of reasoned judgments.

See, e.g. C. B. [name deleted] v. Jamaica, Communication No. 260/1987, CCPR/C/39/

71Due Process in Peacetime: International Law

undue delay.��� Also, the HRC has held that the proceedings on leave to appeal could be conducted in absence of an oral hearing provided that full review of judgment is made in conformity with Article 14(5).��� All the guarantees of a fair and public trial must also be observed in appellate proceedings,��0 and should a sentence be imposed first at the appeal proceedings, the person convicted must be offered a further ap- peal.���

The HRC’s pronouncements of an effective remedy include new trial,��� while the ICCPR itself is the only major treaty which provides clearly for a right to compen- sation for miscarriage of justice. This right is guaranteed in its Article 14(6) stating that:

[w]hen a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

This provision noticeably provides for compensation where there is conclusive evi- dence that the convicted has been the victim of a miscarriage of justice, and that he or she has not contributed to that effect. However, in the U.S., the federal law does not generally provide for such a right if the arrest or detention has been made in good faith, even if it is finally concluded that it has been unlawful. That is why the U.S. attached an understanding to Article 9(5) and Article 14(6), to mean that such compensation could be subject to reasonable requirements of domestic law.��� This provision generally brings to the fore the necessity for the state to take positive steps

D/260/1987 (1990), para. 6.3; Reid v. Jamaica, Communication No. 355/1989, CCPR/C/51/ D/355/1989 (1994), para. 14.3.

238 In the case of Pinkney v. Canada, the HRC found a violation of the provision on the grounds of a delay of 34 months for the author’s leave to appeal to be heard, because of delay in producing transcripts of the trial. See Communication No. R.7/27, L. J. Pinkney v. Canada, Views adopted on 29 October 1981, U.N. GAOR, Doc. A/37/40, at 113, para. 35, read in conjunction with para. 10 at 103,.

239 Bryhn (represented by Mr. John Ch. Elden) v. Norway, Communication No. 789/1997, CCPR/C/67/D/789/1997 (2 November 1999), para. 7.2.

240 See supra note 58, at para. 17. 241 Nowak, supra note 5, at 351, para. 86. 242 Eckart Klein, Individual Reparations Claims under the International Covenant on Civil

and Political Rights: The Practice of the Human Rights Committee, in State Responsi- bility and the Individual: Reparation in Instances of Grave Violations of Human Rights 27, 30-31 (Albrecht Randelzhofer & Christian Tomuschat eds., 1999).

243 Steward, supra note 102, at 1198.

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in its obligation to fulfill the precise requirements of this right.��� However, the pro- vision does not provide a general right to compensation in all cases of reversal after conviction.��� It is understood that pardons based on equity give no arguments for compensation.���

2. The European Convention on Human Rights and Fundamental Freedoms and the Jurisprudence of the European Court of Human Rights

In Europe’s constitutional heritage, fair procedure is essential in applying the rule of law.��� At the outset, it should be noted that the European Convention on Human Rights,��� adopted in 1950 by the Council of Europe is the first and, to date, the most efficacious system of protecting individual rights under international law, providing

244 In his CCPR Commentary, supra note 5, Nowak analyzes the following prerequisites in order to claim compensation for miscarriage of justice: a) conviction must be final and may relate to any criminal offence; acquittal on appeal gives no right to compensation; b) the conviction must be formally reversed, or the person convicted must be pardoned after a new or newly discovered fact has shown conclusively that there has been a miscar- riage of justice, and that this delay in the disclosure of the fact is not attributable to the person convicted; the person convicted has already suffered punishment, which gener- ally means prison term, but also unlawful arrest or detention; and compensation will be granted according to law, which means that the states cannot circumvent compensation by not enacting the required laws. Id. at 353-355, paras. 90-96. Also, positive steps to be taken by the state are generally required in order to have a proper functioning of the ad- ministration of justice. It is states’ responsibility to set up the necessary legal infrastruc- ture. See Marks & Clapham, supra note 5, at 159.

245 See Hanski & Scheinin, supra note 20, at 155 (2003). The authors illustrate this assump- tion with the case of Terry Irving v. Australia (Communication No. 880/1999), Decision on Admissibility adopted on 1 April 2002, a case in which the author Scheinin, member of the HRC at that time, had dissented. Id. at n. 37.

246 The HRC found no right to compensation where the complainant’s pardon was not due to proof of a miscarriage of justice, but was based on considerations of equity. See Muho- nen v. Finland, Communication No. 89/1981, para. 11.2, quoted in Nowak, supra note 5, at 354, para. 93.

247 Pierre Garrone, Opening Address, in The Right to a Fair Trial 6, 8 (European Com- mission for Democracy through Law, 2000).

248 The Convention for the Protection of Human Rights and Fundamental Freedoms was drawn up within the Council of Europe. It was opened for signature in Rome on 4 No- vember 1950 and entered into force in September 1953. Taking as their starting point the 1948 Universal Declaration of Human Rights, the framers of the Convention sought to pursue the aims of the Council of Europe through the maintenance and further realisa- tion of human rights and fundamental freedoms. The Convention was to represent the first steps for the collective enforcement of certain of the rights set out in the Universal Declaration. For a recent account of the European Convention on Human Rights, see Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (2007).

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a vast catalogue of rights and freedoms, specific limitations to the exercise of such rights and freedoms, as well as highly developed and effective monitoring and adju- dicative mechanisms. A number of its provisions guarantee the due process of law, and the anthology of the case law of the former European Commission as well as the European Court of Human Rights provides by far the most fascinating interpretation of this right, which ever more constitutes a common mould for European criminal procedure. This section will spotlight several provisions related to the overall notion of due process of law and fair trial, as basic elements of the notion of the rule of law; namely, Article 5 centrally dealing with powers of arrest and pre-trial detention, and Article 6 enshrining minimum guarantees of a fair trial. A number of other articles that do have some bearing on the right to a fair trial could also be shortly mentioned. Such articles include: Article 2, the right to life as it relates to cases effecting a lawful arrest; Article 3, prohibiting torture and degrading treatment, relevant mainly in situ- ations of detentions and arrest; Article 4, prohibiting slavery and forced labor, signifi- cant also in punishments; Article 7, prohibition of retroactivity of laws and penalties; Article 8, respect for private and family life, as it pertains to the use of invasive ways of gathering evidence; Article 10, freedom of expression, applicable in the rights and limits of the media in airing or publishing issues dealing with investigation or trial. Ample case law of the Court has given meaning to the substance of these provisions, through narrow or broad interpretation, sometimes through its doctrine of the mar- gin of appreciation,��� and other times through its consideration of the Convention as a living instrument.��0

249 On the application of the doctrine of “margin of appreciation” in judging the validity of the restrictions on rights, see Roza Pati, Rights and Their Limits: The Constitution for Eu- rope in International and Comparative Perspective, 23 Berkeley J. Int’l. L. 223, 254-255 (2005). For more details on the doctrine, see Howard Charles Yourov, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Ju- risprudence (1996); see also Christian Bonat, The European Court of Human Rights, published by The Federalist Society for Law and Public Policy Studies (2000) at http://www.fed-soc.org/Intllaw&%20AmerSov/eurocourthr.pdf.

250 This term has been used by the court to interpret certain articles in the light of cur- rent trends of thought and modern social conditions. In the case of Tyrer v. The United Kingdom, 5856/72 [1978] ECHR 2 (25 April 1978) regarding, inter alia, corporal punish- ment, at paragraph 31, for example, the Court recalled that “the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions.” Available at http://www.worldlii.org/cgi-worldlii/disp.pl/eu/ cases/ECHR/ 1978/2.html?query=title%28tyrer+near+united+kingdom%29 (last visited on July 20, 2006). In a more recent case, based on “major social changes in the institution of marriage…as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality,” the Court dropped the restriction to “men and women” in the case of transsexuals. See Goodwin v. United Kingdom, 35 EHRR 18 (2002), para. 100.

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a. Due Process before Trial Modern legal systems allow administrative detention based on an executive order as a precaution against a predicted criminal action,��� in the same way as the detention based on a reasonable suspicion that the person deprived of his liberty has been in- volved in some criminal conduct. That entrenches the administration of justice from potential obstructions by those detained.��� Article 5 (1)��� of the European Conven- tion on Human Rights is the most comprehensive provision dealing in detail with the legality of detention in regards to substance and procedure. It specifically enumerates the lawful grounds allowing for deprivation of the liberty of a person. The European Court of Human Rights has noted that this list is exhaustive and “must be interpreted strictly.”��� Furthermore the European Court has constantly held that the “object and purpose” of this article is “precisely to ensure that no one should be deprived of his

251 This category of permissible deprivation of liberty, called by some “preventive deten- tion,” is by a wide interpretation considered to be authorized by the Article 5 (1) (c) of the ECHR, and it does not necessarily mean that it requires proof that the detainee has al- ready committed a crime. Such detention is based on the grounds that a person deprived of his liberty could potentially be involved in criminal conduct against national interests. For a detailed analysis of this issue, see Claire Macken, Preventive Detention and the Right to Personal Liberty and Security under Article 5 ECHR, 10 Int’l J. Hum.Rts. 195-217 (2006). Macken concludes that preventive detention is specifically provided for in Article 5 (1) (c) as lawful arrest and detention “reasonably considered necessary to prevent his committing an offence.” Id. at 214.

252 See generally Study of the Right of Everyone to be free from Arbitrary Arrest, Detention and Exile, U.N. Doc. E/CN.4/826/Rev.1 (1964).

253 Article 5 (1) of the European Convention on Human Rights provides: 1. Everyone has the right to liberty and security of person. No one shall be deprived of

his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful

order of a court or in order to secure the fulfillment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervi- sion or his lawful detention for the purpose of bringing him before the compe- tent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f ) the lawful arrest or detention of a person to prevent his effecting an unauthor- ized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

254 Bouamar v. Belgium, ECtHR, Judgment of 29 February 1988, Series A, No. 129, at 19, para. 43.

75Due Process in Peacetime: International Law

liberty in an arbitrary fashion.”��� Any arrest and detention not only has to be based on legal substantive grounds and follow the procedure of national law, but it should also meet the standard of lawfulness set by Article 5(1) of the Convention.��� In con- sidering this issue, the Court explained the paramount importance of the fact that the applicable national law, for that matter, “all law, whether written or unwritten, be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in all circumstances, the consequences which a given action may entail.”���

The accountability of States for persons in their custody is a legal obligation of utmost importance and magnitude. The language of the Court and that of the HRC seem to converge in the cases dealing with forced disappearances. In Çakici v. Turkey��� the Court found a “particularly grave violation of the right to liberty and security of person,”��� and it clarified that “the recording of accurate holding data concerning the date, time and location of detainees, as well as the grounds for the detention and the name of the persons effecting it, is necessary for the detention of an individual to be compatible with the requirements of lawfulness for the purposes of Article 5 § 1.”��0

But how has the European Court interpreted the lawfulness of detention? The Court has indicated that Article 5(1)(c) of the European Convention “permits de- privation of liberty only in connection with criminal proceedings,”��� and within the grounds of our topic, Article 5(1)(c) allows “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on

255 X v. United Kingdom, ECtHR, Application No. 7215/75, Judgment of 5 November 1981, para. 43.

256 It might be of interest to mention here that we will see a number of landmark cases of the Court involving the United Kingdom. The U.K. ratified the Convention in 1951. In the year 2000, the Human Rights Act 1998 came into force. However, the theory of par- liamentary sovereignty influenced the bill noting that in the case of conflict between an Act of Parliament and an article of the Convention, the English courts are to apply the Act of Parliament, though they can make a “declaration of incompatibility,” which in turn would empower the executive to amend the incompatible legislation by issuing an Order. Interestingly, the same act requires the courts to interpret legislation in a way that would be compatible with the Convention. Nevertheless, the Court’s decisions have obliged the U.K. to change some of its rules of criminal procedure, such as the ones dealing with wire tapping, indeterminate sentencing, the right to silence etc. See European Criminal Procedures 37-38 (Mireille Delmas-Marty & J.R. Spencer eds., 2002).

257 See paragraph 54 of the case of Steel and Others v. United Kingdom, ECtHR, Judgment of 23 September 1998, (67/1997/851/1058). The Court made reference to a number of cases against United Kingdom, when reasoning on the conformity of detention with domestic law. Available at http://www.worldlii.org/ eu/cases/ECHR/1998/95.html.

258 Çakici v. Turkey, ECtHR, Judgment of 8 July 1999, Reports 1999-IV. 259 Id. at 616, para. 107. 260 Ibid. at para. 105. 261 Ciulla Case v. Italy, ECtHR, Judgment of 22 February 1989, Series A, No. 148, at 16, para.

38.

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reasonable suspicion of having committed an offence or when it is reasonably con- sidered necessary to prevent his committing an offence or fleeing after having done so.” The notion of “reasonable suspicion” is no doubt what has mostly engaged the Court in its interpretation. The criterion of “reasonable suspicion” that someone has committed a crime does not only mean that an objective observer has to be satisfied, but it is also to be regarded in view of conditions surrounding the case. It would be of interest to see how the Court has treated the “reasonableness” of detention based on domestic legislation in cases dealing with the crime of terrorism. In the case of Fox, Campbell and Hartley v. the United Kingdom, ��� the Court argues that “in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences, … the ‘reasonableness’ of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime,”��� but still it asks for prudence when it notes: “Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of ‘reasonableness’ to the point where the essence of the safeguard secured by Article 5 § 1 (c) is impaired….”��� Also, while the Court is aware of the importance of retaining confidential sources for reasons of detention in crimes of this caliber, nevertheless it asks to “be enabled to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured”; and it goes on requiring that “the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence.”��� The Court found a violation of Article 5(1) on the grounds that the government had failed to support that there existed a “reasonable suspicion;”��� deprivation of liberty was decided on subjective suspicion, rather than facts. But the Court also notes that the facts raising a suspicion do not necessarily need to be of the same level with the ones justifying a conviction, or the bringing of a charge.��� This seems to be in conformity with the intent of lawmakers as expressed in the travaux préparatoires which stated that “it may, however, be necessary in certain circumstances to arrest an individual in order to prevent his committing a crime, even if the facts which show his intention

262 Fox, Campbell and Hartley v. United Kingdom, ECtHR, Judgment of 30 August 1990, Series A, No. 182.

263 Id. at 16-17, para. 32. 264 Ibid. 265 Id. at 17-18, para. 34. 266 The Court reasoned that though two of them had been previously convicted for terrorism

connected with the IRA , it was only the arresting officers who had a genuine suspicion that they were involved in those terrorist acts, but there was not established a “reasonable suspicion” to “satisfy an objective observer that the applicants may have committed these acts.” Id. at para. 35.

267 See Selcuk v. Turkey, 21768/02 [2006] ECHR 19 (10 January 2006), para. 23. No violation was found on grounds of Article 5 (1). Available at http://www.worldlii.org/eu/cases/ ECHR/2006/19.html .

77Due Process in Peacetime: International Law

to commit the crime do not of themselves constitute a penal offence.”��� However, protection against abuse of such a restriction was ensured through the requirement that the person detained had to be brought promptly before a judicial authority. Any broad interpretation of Article 5 § 1 (c) as providing a general power of preventive detention was rejected in the Lawless case.���

The right of detainees to be informed promptly of reasons for arrest and charges against them is guaranteed by Article 5(2).��0 The Court has reasoned that the term “promptly” should be strictly construed, though “intervals of few hours” due to un- avoidable delay do not necessarily amount to a violation.��� The ECHR is the only treaty providing that the reasons for arrest should be given in a language that the detainee understands. The Court has also placed importance on the fact that the essential legal and factual ground for the arrest should be made known in a “simple, non-technical language that [the accused] can understand,”��� and that telling the de- tained that they are arrested on suspicion of being terrorists, without clarity of legal and factual grounds, would violate Article 5(2).���

The language of Article 5(3)��� of the ECHR is almost the same as the respective articles in the ICCPR and the ACHR, and the interpretation of the Court as regards the notion of “promptness” is equivalent to that of the HRC, as it limits the degree of

268 Conference of Senior Officials, Report to the Committee of Ministers Doc. CM/WP 4(50) 19, at 14, in Marc J. Bossuyt, Guide to the Travaux Préparatoires of the Inter- national Covenant on Civil and Political Rights 260 (1987).

269 Lawless v. Ireland (No. 3), No. 00000332/57, ECtHR, Judgment of 1 July 1961: “… [T]he detention of G. R. Lawless is not covered by Article 5, paragraph 1 (c) (art. 5-1-c), since he was not brought before the competent judicial authority during the period under review; that paragraph 1 (c) (art. 5-1-c) authorizes the arrest or detention of a person on suspicion of being engaged in criminal activities only when it is effected for the purpose of bring- ing him before the competent judicial authority; that the Commission has particularly pointed out in this connection that both the English and French versions of the said clause make it clear that the words ‘effected for the purpose of bringing him before the competent judicial authority’ apply not only to the case of a person arrested or detained on ‘reasonable suspicion of having committed an offence’ but also to the case of a person arrested or detained ‘when it is reasonably considered necessary to prevent his commit- ting an offence or fleeing after having done so.’” Id. at para. 9.

270 Article 5(2) of the ECHR provides: Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

271 Fox, Campbell and Hartley v. United Kingdom, supra note 262, para. 42. 272 Id. at para. 40. 273 Id. at para. 41. 274 Article 5(3) of the ECHR states:

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exer- cise judicial power and shall be entitled to trial within a reasonable time or to release pend- ing trial. Release may be conditioned by guarantees to appear for trial.

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flexibility attached to it.��� In the context of this study it would be of interest to note that the Court does not justify “lengthy periods of detention without appearance before a judge or other judicial officer,” even in the cases dealing with special legisla- tion regarding involvement in terrorist acts. Dispensing altogether with “prompt” judicial review because of difficulties relating to such acts “would import into Article 5(3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision. The Court thus has to conclude that none of the applicants was either brought ‘promptly’ before a judicial authority or released ‘promptly’ following his ar- rest. The undoubted fact that arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 (3).”��� Thus, unduly prolonged proceedings result in unlawfulness of pre-trial detention. In addition, in order to satisfy the requirements of both Article 5(1)(c) and Article 5(3), it does not suffice to base the reasonable suspicion for deprivation of liberty on ob- jectively verifiable facts showing that a person has committed an offence, even when caught in flagrante delicto. If that were the case, the presumption of innocence would be compromised. So, there is a need to prove that there are objectively verifiable grounds for pre-trial detention, such as risks of absconding, pressure on witnesses, interference with evidence, etc.���

For the European Court, the legitimacy of the decision-making body within the meaning of Article 5(3) requires that the judicial officer “must satisfy certain condi- tions providing a guarantee to the person detained against any arbitrary or unjusti- fied deprivation of liberty.”��� So, “the officer must be independent of the executive and the parties … and must have the power to make a binding order for the detainee’s release,”��� otherwise, he cannot be considered satisfactorily independent. The Court particularly cautions against such an officer being an auditeur militaire or a public prosecutor who could potentially intercede in ensuing proceedings in the capacity of a prosecuting authority.��0 This jurisprudence was confirmed in a recent case, where the Court noted that the prosecution authorities were not endowed with attributes of independence and impartiality because “not only [they] belonged to the executive

275 Brogan and Others v. United Kingdom, ECtHR, Judgment of 29 November 1988, Series A, No. 145, at 32-33, para. 59.

276 Id. at 33-34, para. 62 (emphasis added). 277 For more details and case illustrations, see Nuala Mole & Catharina Harby, The

Right to a Fair Trial: a Guide to the implementation of Article 6 of the European Convention on Human Rights 25-27 (Human Rights Handbooks, No. 3, 2001).

278 Assenov and Others v. Bulgaria, ECtHR, Judgment of 28 October 1998, Reports 1998- VIII, at 3298, para. 146.

279 Ibid. 280 Brincat v. Italy, (73/1991/325/397), 26 November 1992; De Jong, Baljet and van den Brink

v. the Netherlands, (8805/79;8806/79;9242/81) 22 May 1984, 77 Ser. A 23.

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branch of the State but also concurrently performed investigative and prosecution functions in criminal proceedings and were a party to such proceedings.”���

Within the meaning of Article 5(3) the pre-trial detention of an accused person should not exceed a reasonable time. The Court has reasoned that the requirement of reasonable suspicion is a sine qua non for the lawfulness of continued detention, but after a certain lapse of time, it would not provide enough grounds for continuous detention. What come into play are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, might out- weigh the rule of respect for individual liberty.��� In other words, the deprivation of liberty should be based on other relevant and sufficient grounds, and the government should display special diligence in the conduct of such proceedings.��� When con- sidering the risk of flight as a ground for detention, the Court has observed that the gravity of the sentence should not be the only reason to keep someone in detention.��� The risk of relapsing into crime is another ground for continued detention, and in the context of this paper, it is of interest to note the European Court’s reasoning that the national authorities should take into account the involvement in previous offenses, and their nature, as well as the sentences imposed as the result of this involvement.��� When considering these grounds for continued detention versus other preventive measures, such as bail or police custody, the Court asks of domestic authorities to give in detail their arguments that could factor into obstructing the course of trial and a violation is found where this has not been the case.��� The detention would

281 W.B. v. Poland, 34090/96 [2006] ECHR 22 (10 January 2006), para. 51, available at http:// www. worldlii.org/eu/cases/ECHR/2006/22.html.

282 Harazin v. Poland, 38227/02 [2006] ECHR 10 (10 January 2006), para. 37, available at http://www. worldlii.org/eu/cases/ECHR/2006/10.html.

283 Id. at para. 39. As regards special diligence, the Court noted that: “the delay of nearly two years in opening the trial should be considered significant and it cannot therefore be said that the authorities displayed “special diligence” in the conduct of the criminal proceed- ings against the applicant.” Id. at para. 48. See also Assenov and Others v. Bulgaria, supra note 278, at 3300, para. 154.

284 Yagci and Sargin v. Turkey, ECtHR, Judgment of 8 June 1995, Series A, No. 319-A, at 19, para. 52.

285 Toth v. Austria, ECtHR, Judgment of 12 December 1991, Series A, No. 224, at 19, para. 70.

286 So, in the case of Golek v. Poland, 31330/02 [2006] ECHR 462 (25 April 2006), at para- graph 57, the Court notes: “during the entire period of the applicant’s pre-trial deten- tion, the authorities did not envisage the possibility of imposing on the applicant other ‘preventive measures’ – such as bail or police supervision – expressly foreseen by Polish law to secure the proper conduct of criminal proceedings. … What is more, it does not emerge from the relevant decisions that at any stage of the applicant’s detention the au- thorities considered that those other measures would not have ensured his appearance before the court or that the applicant, had he been released, would have in any way ob- structed the course of the trial. Nor did they mention any factor indicating that there was a risk of the applicant’s tampering with evidence, absconding, going into hiding or evad- ing any sentence that might be imposed.” The Court found a violation on the grounds

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also continue to be legitimate if the public order remains actually threatened, and this would be subject to the existence of “sufficient evidence,” because the Court is of the opinion that even with respect to an offence as grave as participation in a ter- rorist attack, the prejudice to the public order disappears after a certain time.��� The presumption of innocence and the rule of respect for individual liberty should pre- vail in all applications for release pending trial.��� This did not happen in the case of Harazin v. Poland.��� The Court found “a manifest disregard for the principle of the presumption of innocence” on the part of the District Court, according to which the detention for two years and eight months was justified, inter alia, because of the risk of detainee’s tampering with evidence or absconding further aggravated by the fact that the applicant had not confessed fully.��0 In addition, circumstances of the case such the age of the detainee are also to be considered,��� as is the complexity of the case when dealing with organized crime.���

of the applicant’s pre-trial detention of three years and over two months. Id. at para. 59. Case available at http://www.worldlii.org/eu/cases/ECHR/2006/462.html.

287 Tomasi v. France, ECtHR, Judgment of 27 August 1992, Series A, No. 241-A, at 36, para. 91.

288 Assenov and Others v. Bulgaria, supra note 278, at 3300, para. 154. 289 Harazin v. Poland, supra note 282. 290 Id. at para. 44. 291 Selcuk v. Turkey, supra note 267, in paragraph 36 the Court finds a violation of Article

5(3) reasoning as follows: “… having regard particularly to the fact that the applicant was a minor at the time, the Court finds that the authorities have failed to convincingly dem- onstrate the need for the applicant’s detention on remand for more than four months.”

292 In a recent case, while challenging government’s arguments on the “complexity of a case” as a ground for reasonableness of detention, the Court argued that where there was no indication that the defendant was a member of an organized crime group, detention of two years and almost six months was unreasonable. In the Court’s view, “[i]t does not appear therefore that his case presented particular difficulties for the investigation au- thorities and for the courts to determine the facts and the degree of responsibility of each accomplice, as would undoubtedly have been the case had the proceedings concerned organized crime.” Telecki v. Poland, 56552/00 [2006] ECHR 695 (6 July 2006), para. 34, available at http://www.worldlii.org/eu/cases/ECHR/2006/695.html . Moreover, even in cases dealing with organized crime, the authorities are not given unlimited power to prolong detention. In the context of this study, it is worth considering how the Court reasoned regarding the complexity in dealing with organized crime: “…the judicial au- thorities relied on the fact that the applicant had been charged with being a member of an organized criminal group. In this regard, the Court considers that the existence of a general risk flowing from the organized nature of the alleged criminal activities of the ap- plicant may be accepted as the basis for his detention at the initial stages of the proceed- ings (Górski v. Poland, No. 28904/02, § 58, 4 October 2005) and in some circumstances also for subsequent prolongations of the detention. It is also accepted that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task. In these circumstances, the Court considers that the need to obtain volu- minous evidence from many sources and to determine the facts and degree of alleged responsibility of each of the co-defendants, constituted relevant and sufficient grounds

81Due Process in Peacetime: International Law

Article 5(4)��� in the interpretation of the European Court of Human Rights guar- antees the arrested or the detained person the right to institute proceedings for review by a court of the lawfulness of deprivation of liberty, both procedurally and substan- tively��� to prevent arbitrariness. This holds true also for the detention on remand which should be periodically reviewed in short intervals.��� Thus in Assenov and Others v. Bulgaria, the Court found a violation of Article 5(4) because the detained was held in pre-trial detention for two years and his continued detention was only reviewed once and without oral hearing.��� On the contrary, in cases when the law- fulness of a person’s continued detention was examined several times throughout proceedings by competent authorities, the Court used this finding as an argument to challenge the allegations of an “unreasonable” detention.��� As to the issue of the right to an oral hearing, the Court has interpreted that Article 5(4) requires “an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses”��� particularly in cases involving potential long terms of imprisonment as well as in cases where the characteristics of the personality and level of maturity of the detained would play a role in decid- ing on the need for continued detention. Case law of the Court also shows that this provision has been interpreted in a way that it is necessary to give the detainee “the opportunity to appear at the same time as the prosecutor so that he [can] reply to his arguments,”��� and a violation of article 5(4) has been found in cases where the principle of equality of arms had not been respected. The Court has also noted that further review of continued detention is necessary, and just because the initial deten- tion was decided on by a court, this does not justify the lack of periodic review of

for the applicant’s detention during the period necessary to terminate the investigation, to draw up the bill of indictment and to hear evidence from the accused. Moreover, the Court considers that in cases such as the present concerning organized criminal groups, the risk that a detainee if released might bring pressure to bear on witnesses or other co-accused, or might otherwise obstruct the proceedings, is in the nature of things often particularly high.” In spite of this, the Court found a violation of Article 5(3), because the detention of four years was still not justified. See Celejewski v. Poland, No. 17584/04, 4 May 2006, para. 37, available at http://www.worldlii.org/eu/ cases/ECHR/2006/526. html. See also Dudek v. Poland, no. 633/03, 4 May 2006, para. 36, available at http:// www.worldlii.org/eu/cases/ECHR/2006/527.html .

293 Article 5(4) of the ECHR states: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take pro- ceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

294 Assenov and Others v. Bulgaria, supra note 278, at 3302, para. 162. 295 Ibid. 296 Id. at 3303, para. 165. 297 W.B. v. Poland, supra note 281, para. 68. 298 Hussain v. United Kingdom, ECtHR, Judgment of 21 February 1996, Reports 1996-I, at

271, paras. 59-60. 299 Kampanis v. Greece, ECtHR, Judgment of 13 July 1995, Series A, No. 318-B, at 48, para.

58.

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lawfulness of detention. The Court goes even further stating that the same principles apply in certain circumstances to the detention after conviction by a court.�00 The right to a speedy review by a court in cases challenging continued detention guaran- teed in Article 5(4) has been interpreted by the Court in several cases. An interval of one month was considered reasonable,�0� whereas a period of five and a half months from the time the detainee applied for review until the time the investigating judge dismissed the application was not considered sufficiently speedy.�0� In the case of E. v. Norway, �0� a period of eight weeks from the application to the judgment was found in violation of Article 5(4).

Article 5(5)�0� guarantees an enforceable right to compensation, and it can be con- sidered to have been violated even in the cases where there is no enforceable claim for compensation before the domestic courts.�0� However, the Court has clarified that though “the status of ‘victim’ may exist even where there is no damage [resulting from the breach], … there can be no question of ‘compensation’ where there is no pecuni- ary or non-pecuniary damage to compensate.”�0�

b. Due Process during Trial Considered an omnibus provision,�0� and described as “a pithy epitome of what con- stitutes a fair administration of justice,”�0� Article 6 of the ECHR�0� provides for the

300 Iribarne Pérez v. France, ECtHR, Judgment of 24 October 1995, Series A, No. 325-C, at 63, para. 30.

301 Bezicheri v. Italy, ECtHR, Judgment of 25 October 1989, Series A, No. 164, at 11, para. 21. 302 Id. at 12, paras. 22-26. 303 E. v. Norway, ECtHR, Judgment of 29 August 1990, Series A, No. 181, at 28, para. 66. 304 Article 5(5) of the ECHR provides: “Everyone who has been the victim of arrest or deten-

tion in contravention of the provisions of this article shall have an enforceable right to compensation.”

305 Brogan and Others v. United Kingdom, supra note 275, at 35, paras. 66-67. 306 Wassink v. Netherlands, ECtHR, Judgment of 27 September 1990, Series A, No. 185-A, at

14, para.38. 307 Francis G. Jacobs & Robin C.A. White, The European Convention on Human

Rights 122 (1996). 308 J.J. Cremona, The Public Character of Trial and Judgment in the Jurisprudence of the

European Court of Human Rights, in Protecting Human Rights-The European Dimension: Studies in Honor of Gérard J. Wiarda 107 (F. Matscher & Herbert Petzold eds., 1990).

309 Article 6 of the ECHR states: 1. In the determination of his civil rights and obligations or of any criminal charge

against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pro- nounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special cir- cumstances where publicity would prejudice the interests of justice.

83Due Process in Peacetime: International Law

right to a fair trial. As one of the most vulnerable rights, it comes as no surprise that the Commission’s and Court’s jurisprudence on this article offer a wealth of clari- fied standards that have also served as models for other regional legal texts, as well as their respective monitoring bodies’ jurisprudence. It is an article more cited and violated than any other.��0

Article 6 (1) stipulates, inter alia, that “[i]n the determination of his civil rights and obligations or of any criminal charge against him,��� everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The Court has submitted that the prominent place held by the right to a fair trial in the administration of justice in a democratic society precludes a restrictive interpretation of Article 6 (1) otherwise any interpretation “would not cor- respond to the aim and the purpose of that provision.”��� In reasoning on the fairness of the trial, the European Court found a violation of Article 6 (1), in the case of Botten v. Norway,��� where the domestic court had convicted the defendant without having summoned or heard him in person. The lack of a genuine possibility for the accused person to challenge evidence, cross-examine witnesses, and confront all charges, was

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of

the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defense; (c) to defend himself in person or through legal assistance of his own choosing or,

if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attend- ance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

310 Garrone, supra note 247. 311 For a detailed analysis of the notions of civil rights and obligations as well as criminal

charge, see Jacobs & White, supra note 307, at 128-136 (1996), noting, inter alia, that the Court has adopted “a liberal interpretation of the concept of civil rights and obligations.” Id. at 130. As to the notion of criminal charge, it is noted that the concept is autonomous and that relevant considerations in its determination include “the nature of the offence charged, the severity of the sanction imposed, having regard in particular to any loss of liberty which was a characteristic of criminal liability, and the group to whom the offence applied. Id. at 134. Whereas the term “charge,” according to the Court, is “the official no- tification given to an individual by the competent authority of an allegation that he has committed a criminal offence.” Id. at 135, quoting Eckle v. Germany, 5 EHRR 1 (1983), para. 73 of the judgment. See also Mole & Harby, supra note 277, at 11-18.

312 Delcourt v. Belgium, ECtHR, Judgment of 17 January 1970, Series A, No. 11, paras. 25-26. 313 Botten v. Norway, ECtHR, Judgment of 19 February 1996, Reports 1996-I, at 145, para.

53.

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found to be in violation of the right to a fair trial in the case of Bricmont v. Belgium. ��� The Court has held the object and purpose of Article 6(1) and 6(3)(c)-(e) presuppose that the accused must be present at trial hearings,��� and a trial in absence may only be permitted when the authorities have acted diligently to notify the accused but to no avail, or in the interest of the administration of justice in some cases of illness.���

In order to have a credible and effective administration of justice, it is adamant that the judicial proceedings be started and completed within a reasonable time. The notion of “a reasonable time” has been defined by the Court in terms of “the par- ticular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities.”��� The Court has also clarified the concepts of the start and the end of the process. The start of the period has been considered the day in which a person is either charged, arrested, or committed for trial;��� whereas the end of this period is usually the day when the judgment becomes final,��� i.e. when the proceedings have concluded at the highest possible instance. The Court has further held that it is a duty of the states to organize their legal systems in a proper way, so that the requirement of reasonableness can be met by their courts.��0 The Court has also noted that the Convention “does not require a person charged with a criminal

314 Bricmont v. Belgium, ECtHR, Judgment of 7 July 1989, Series A, No. 158, at 30-31, paras. 84-85.

315 Ekbatani v. Sweden, ECtHR, Judgment of 26 May 1988, Series A, No 134, para 25. 316 Mole & Harby, supra note 277, at 38. 317 See Kemmache v. France, ECtHR, Judgment of 27 November 1991, Series A, No. 218, at

20, para. 50 (criminal); and Martins Moreira v. Portugal, ECtHR, Judgment of 26 Octo- ber 1988, Series A, No. 143, at 17, para. 45 (civil); emphasis added. The complexity of the case can include issues of fact or of law, such as the nature of the facts to be established, the number of accused persons and witnesses, international elements, the relation of the case to other cases, and the intervention of other persons in the proceedings. The conduct of the applicant has to do with the requirement to refrain from using delaying tactics, bringing the case in the wrong court, submit pleadings long after lodging an ap- peal etc. However, this does not mean that the defendant has to cooperate actively in expediting the proceedings. The conduct of the authorities has to do with the principle of the proper administration of justice which implies that the cases be handled expedi- tiously, so that problems, either administrative or judicial, be avoided. Such issues include transfer of cases between courts, hearing of cases with multiple defendants, communica- tion of judgment, and the hearing of appeals. Sometimes, political, social and economic background of the state also plays a role in determining the reasonableness of proceed- ings. See Mole & Harby, supra note 277, at 23-27.

318 See, respectively, Kemmache v. France, supra note 317, at 27, para. 59 (date of charge), Yagci and Sargin v. Turkey, supra note 284, at 20, para. 58 (date of arrest), and Mansur v. Turkey, ECtHR, Judgment of 8 June 1995, Series A, No. 319-B, at 51, para. 60 (committal for trial).

319 See Yagci and Sargin v. Turkey, supra note 284, at 20, para 58. 320 Mansur v. Turkey, supra note 318, at 53, para. 68.

85Due Process in Peacetime: International Law

offense to cooperate actively with the judicial authorities,”��� or be penalized for tak- ing full advantage of domestic resources for his defense.��� The applicant could not be blamed for such conduct, nor could such conduct be considered a reason for any delay, unless it was a deliberate obstructive behavior. However, the Court has not stipulated any temporal scale or an absolute time-limit of reasonableness,��� rather than the guidelines mentioned above, and all its findings are relative and decided flexibly on a case by case basis.��� Overly lengthy proceedings constitute a violation of this provision even in cases where the accused is not in state custody.���

The Court has also argued that Article 6(1) imposes a duty for the courts to give reasons for the judgment they render. This is not only an important ingredient of the right to a fair trial, but also a requirement of a proper administration of justice. According to the European Court, “judgments of courts and tribunals should ad- equately state the reasons on which they are based.”��� This is particularly important for lower courts.���

The wording of the right to a public hearing in ECHR is the same as that of the ICCPR, and the interpretation of this right and the exceptions��� to it has been virtu- ally the same. In determining this right, the proceedings should be considered as a whole. It is of interest to note, however, that the European Court has argued that if there has been a public trial in the first instance, proceedings in appeal involving only

321 Yagci and Sargin v. Turkey, supra note 284, at 21, para. 66. 322 Ibid. 323 So for example violation was found in the case of Iletmis v. Turkey, ECtHR, Application

No. 29871/96, Judgment of 6 December 2005. The proceedings had lasted 15 years at one level of jurisdiction, and such excessive period had failed to satisfy the reasonableness requirement for the trial of Nazmi Iletmis.

324 See European Criminal Procedures, supra note 256, at 49, also noting that the Con- vention and the Strasbourg case-law “have certainly made the contracting states more conscious of the problem of delay, and stimulated its legislators to find ways to overcome it.”

325 So, in a case where the accused was under house arrest, a period of six years and nine months total length of criminal proceedings was considered to have had exceeded the “reasonable time” requirement of Article 6 (1). See Simonavicius v. Lithuania, 37415/02 [2006] ECHR 653 (27 June 2006), para. 42, available at http://www.worldlii.org/eu/cas- es/ECHR/2006/653.html.

326 García Ruiz v. Spain, ECtHR, Judgment of 21 January 1999, Reports 1999-I, at 97, para. 26 (emphasis added). See also prior cases such as Georgiadis v. Greece (1997) 24 EHRR 606, para. 42, and Van de Hurk v. Netherlands (1994) 18 EHRR 481, para. 61.

327 A discussion of this issue can be found in Jacobs & White, supra note 307, at 125-126 (1996).

328 Both Article 14(1) of the ICCPR and Article 6(1) of the ECHR provide that the press and public “may be excluded from all or part of ” a trial for certain specified reasons, namely, in the interest of morals, public order or national security in a democratic society, in the interest of the parties’ private lives, or where the interest of justice otherwise so requires. Particularly the European Convention specifies “the interest of juveniles” as a ground for non-publicity of the trial.

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questions of law, as opposed to questions of fact,��� could be held in camera, without violating Article 6.��0 If the appeal has to determine guilt or innocence of the accused, then issues of both fact and law are to be raised. Consequently, there might be a need for an oral public hearing in appeal, too.��� Article 6(1) also provides for public pro- nouncements of judgments, which is considered by the court as very important “to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial.”��� The Court has interpreted this to mean either oral pronouncement of judgments, and/or depositing the judgments in registry, where they can be acces- sible to the public.��� Where this has not been the case, the Court found a violation of Article 6(1).��� The public availability of judgments is important in building public confidence in the administration of justice. The Court has also held that there is a right of the defendant to waive his right to a public hearing in as far as the waiver is “made in an unequivocal manner” and that it does not “run counter to any important public interest.”���

Article 6(1) also provides for a fair and public hearing by an independent and impartial tribunal established by law. This article not only relates to the separation of powers between the judiciary and the executive, but also to a necessary separa- tion of the functions of investigating, prosecuting and judging within the criminal procedure.��� This requirement is part and parcel of a fair hearing. There can be no independence of a court if some other authority will have the power to question the finality and the content of a court decision and decide on the execution or non- execution of a judgment: it is the court that must have the power to give binding

329 A violation was found in the case of Weber v. Switzerland, where there had been no pub- lic trial in the first instance, though subsequent proceedings in the Federal Court were public. The Court argued that the Federal Court “could only satisfy itself that there had been no arbitrariness” but was not competent to “determine all the disputed questions of fact and law.” See Weber v. Switzerland, ECtHR, Judgment of 22 May 1990, Series A, No. 177, at 20, para. 39.

330 Bulut v. Austria, ECtHR, Judgment of 22 February 1996, Reports 1996-II, at 358, para. 41. 331 See Fredin v. Sweden (No. 2), (20/1993/415/494), 23 February 1994, at 6-7. 332 Pretto and Others v. Italy, ECtHR, Judgment of 8 December 1983, Series A, No. 71, at 13,

para. 27. 333 Id. at 12, paras. 25-26. 334 See Werner v. Austria, Application No. 21835/93 [1997] ECHR 92, ECtHR, Judgment of

24 November 1997, where there had been no public pronouncement of judgment; Szucz v. Austria, (Application No. 20602/92), ECtHR, Judgment of 24 November 1997, where there had been no public delivery of judgments in two sets of proceedings to claim com- pensation for detention.

335 Håkansson and Sturesson v. Sweden, Application No. 11855/85, ECtHR, Judgment of 21 February 1990, para. 66.

336 See European Criminal Procedures, supra note 256, at 48, referring to Borgers v. Belgium, (1991) 15 EHRR 92, Piersack v. Belgium, (1982) 5 EHRR 169, and De Cubber v. Belgium (1984), 7 EHRR 236.

87Due Process in Peacetime: International Law

decisions that cannot be altered by non-judicial authority.��� Also, there is no fairness in a trial if the tribunal is biased.��� Thus, the European Court in considering the term “independent tribunal” for the purposes of Article 6(1), has stated the importance of “the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appear- ance of independence.”��� Reasoning about appointment of members of a tribunal, the Court has noted that establishing a tribunal motivated by the desire to influence the outcome is against Article 6; conversely, fixed terms for members of a court are a guarantee of independence.��0

The notions of independence and impartiality are typically considered interrelated and the Court has made an attractive interpretation as to impartiality. The Court considers impartiality to contain a subjective element meaning that “no member of the tribunal should hold any personal prejudice or bias,” and an objective element, which asks that the tribunal members also “be impartial from an objective view- point,” in that “it must offer guarantees to exclude any legitimate doubt in this re- spect.”��� Regarding the objective test, the Court went on reasoning that it must be determined whether there are ascertainable facts which may raise doubts as to the impartiality of the judges. In the case of Sander v. United Kingdom,��� the court held that the applicant’s right to an impartial tribunal was violated because of allegations of racism on the part of the jurors, and the failure of the judge to take necessary action that would convince the applicant that he was not being tried based on his ethnicity. When it comes to independence and impartiality of the tribunal, the Court notes that “even appearances��� may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and

337 See Findlay v. United Kingdom, Application No. 22107/93, ECtHR, Judgment of 25 Febru- ary 1997, para. 77: “[T]he convening officer also acted as ‘confirming officer’. Thus, the decision of the court martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit.”

338 There is a presumption of personal impartiality (lack of bias) of a judge until evidence is brought to the contrary, and in practice it is very difficult to prove that. No such claims have ever been successful in the Court. However, the Court has held that cases of com- plaint about impartiality by the defendant must be investigated unless they are manifestly devoid of merit. Mole & Harby, supra note 277, at 29-30.

339 Incal v. Turkey, ECtHR, Judgment of 9 June 1998, Reports 1998-IV, p. 1571, para. 65, con- firming earlier jurisprudence in the case of Campbell and Fell v. United Kingdom, Judg- ment of 28 June 1984, Series A, No. 80, para. 78.

340 For an overview of this provision and its interpretation, see Mole & Harby, supra note 277, at 28-34.

341 Daktaras v. Lithuania, Application No. 42095/98, ECtHR, Judgment of 10 October 2000, para. 30.

342 Sander v. United Kingdom, Application 34129/96, ECtHR, Judgment of 9 May 2000, ECHR 2000-V.

343 In the case of Oberschlick, the Court concluded that Article 6(1) had been violated for lack of impartiality because a judge who had taken part in a decision quashing an order dismissing criminal proceedings, sat later in the hearing of an appeal against the appli-

88 Chapter II

above all, as far as criminal proceedings are concerned, in the accused …. In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified.”��� This was the case in Daktaras v. Lithuania, where the Court found a violation, because the applicant’s doubts as to the impartiality of the Lithuanian Supreme Court “may be said to have been objectively justified.”��� The same conclusion was reached in a most recent case against Turkey, where the defendants were arrested and taken into custody by the Anti-Terror branch of the İzmir Security Directorate on suspicion of aiding and abetting an illegal organization.��� Importance is also attached to the es- tablishment of procedures according to which judges could recuse themselves from the adjudication of cases they have some connection with.��� First and foremost, the right to a fair trial demands of judges to be on the alert to respect the right, because they are the ones vulnerable to violating it.���

The presumption of innocence as an overall guarantee from suspicion to convic- tion or acquittal is a foundational principle provided for in Article 6(2). This provi- sion is crucial in deciding upon the deprivation of liberty awaiting trial and the right to bail, in protecting the reputation of the accused until conviction or acquittal, as well as in order not to compromise the independence and impartiality of courts. The ECtHR has explained that this provision must be “practical and effective as opposed to theoretical and illusory.”��� The Court has found a violation in cases where the presumption of innocence has been compromised by comments of judges, courts��0

cant’s conviction. See Oberschlick v. Austria (1), ECtHR, Judgment of 23 May 1991, Series A, No. 204, at 13, para. 16 and at 15 para. 22.

344 Incal v. Turkey, supra note 339, at 1572-1573, para. 71. 345 Daktaras v. Lithuania, supra note 341, at para. 38. 346 See Kezer and Others v. Turkey, 58058/00 [2006] ECHR 69 (24 January 2006), available

at http://www.worldlii.org/eu/cases/ECHR/2006/69.html. In paragraph 25, the Court noted that “it is understandable that the applicants – prosecuted in a State Security Court for offences relating to ‘national security’ – should have been apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service. On that account they could legitimately fear that the State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. Consequently, the applicants’ doubts about that court’s inde- pendence and impartiality may be regarded as objectively justified”(emphasis added).

347 See Jacobs & White, supra note 307, at 139. Such connections could be a personal inter- est, no matter how scrupulously the case is handled, the involvement of a judge in pre- trial stages, etc. Ibid.

348 Garrone, supra note 247. 349 Allenet de Ribemont v. France, ECtHR, Judgment of 10 February 1995, Series A, No. 308,

at 16, para. 35. 350 Minelli v. Switzerland, ECtHR, Judgment of 25 March 1983, Series A, No. 62. On page

18, paragraph 38, the Court noted that “the Chamber of the Assize Court showed that it was satisfied of the guilt of the applicant, who “had not had the benefit of the guarantees

89Due Process in Peacetime: International Law

or other public authorities.��� The influence of the Convention and the Strasbourg jurisprudence have been indispensable in bringing several municipal laws to lift the burden of proof of innocence from the defense,��� in cases when pressure of public opinion has influenced the legislators to enact laws in which the accused would have to prove his innocence.���

Article 6(3)(a) provides the right of a person charged with a criminal offence “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.” The Court found a violation of the above provision in the case of Brozicek v. Italy,��� where the accused was not given notifi- cation of the charges brought against him in his language, though he had informed the authorities of the difficulties he had in understanding the charges in the Italian language. The Court has also held that lack of written translation of the indictment might put an accused in a disadvantaged position, if he does not understand the lan- guage of the court.���

The right of the accused to have adequate time and facilities for the preparation of his defense is guaranteed in Article 6(3)(b), and it should be closely examined to- gether with Article 6(3)(c), which guarantees the right of the accused “to defend him- self in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” There are a number of issues contained in these paragraphs that the Court has addressed in its jurisprudence. Thus, in the case of Pelladoah v. the Netherlands��� the Court held that even if an accused refuses to appear in person, his right to be defended by a lawyer is retained, because “it is for the courts to ensure that a trial is fair and, accordingly, that counsel who attends trial for the apparent purpose of defending the accused in his absence, is given the opportunity to do so.”��� Though the Convention does not expressly provide for a right to communicate with counsel

contained in” article 6(1) and (3); the Chamber’s appraisals were thus “incompatible with respect for the presumption of innocence.”

351 Id. at para. 36. The European Court found a violation of article 6(2) in this case, noting that “some of the highest-ranking officers in the French police referred to Mr. Allenet de Ribemont, without any qualification or reservation, as one of the instigators of a murder and thus an accomplice in that murder”. The Court saw this as “a declaration of the ap- plicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority.” Id. at 17, para 41.

352 In the context of suspicion of terrorism-related acts and the burden of proof in the U.K., see Michael Arnheim, The Handbook of Human Rights Law: An Accessible Approach to the Issues and Principles 33-35 (2004).

353 See European Criminal Procedures, supra note 256, at 597. 354 Brozicek v. Italy, ECtHR, Judgment of 19 December 1989, Series A, No. 167. 355 See Kamasinski v. Austria, ECtHR, Judgment of 19 December 1989, Series A, No. 168. 356 Pelladoah v. the Netherlands, ECtHR, Judgment of 22 September 1994, Series A, No. 297-

B, at 35, para. 40. 357 Id. at para. 41.

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without hindrance, the Court has reasoned that as soon as he is imprisoned, the accused is entitled to legal counsel of his choice,��� and to free legal aid when neces- sary. The Court, however, brings forth the notion of “restriction for good cause” to the right of assistance by a lawyer at the initial stages of police interrogation, always bearing in mind that, in its entirety, it should not deprive the accused of a fair hear- ing.��� It is interesting to note the very narrow consideration of good cause by the Court in the case of John Murray v. The United Kingdom,��0 where the applicant was refused access to a lawyer for the first 48 hours of his detention, related to charges of acts of terrorism. The arrested was cautioned that if he chose to remain silent, infer- ences could be drawn as evidence against him. Under these circumstances, the Court reasoned that “to deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defense may well be irretrievably prejudiced, is – whatever the justification for such denial – incompatible with the rights of the ac- cused under Article 6.”

Article 6(3)(c) also guarantees free legal aid if the accused does not have sufficient means to pay for legal assistance, in cases when the interests of justice so require. In clarifying the “interests of justice,” the Court has established certain criteria that deal with the seriousness of the offence committed, the severity of the sentence to be ex- pected for such an offence, and the complexity of the case.��� The Court also observes that the legal aid available must be effective, and not merely nominated, as it was in the case of Artico v. Italy.���

The accused is also entitled “to receive visits from his legal adviser with a view to his defense and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defense. Interviews between the prisoner and his le- gal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”��� This need for confidentiality stems from the neces- sity to guarantee rights that are practical and effective, so that the right to access to legal aid is not rendered futile through surveillance by the authorities.��� These trial guarantees are important in pre-trial stages, as they would ensure a subsequent fair

358 John Murray v. The United Kingdom, ECtHR, Judgment of 8 February 1996, Reports 1996-I. In this case the Court reasoned that “Article 6 will normally require that the ac- cused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation.” Id. at 54-55, para. 63.

359 Ibid. 360 Ibid. 361 Quaranta v. Switzerland, ECtHR, Judgment of 24 May 1991, Series A, No. 205 at 17, paras.

32-34. 362 Artico v. Italy, ECtHR, Judgment of 13 May 1980, Series A, No. 37, at 16, para. 33. 363 S. v. Switzerland, ECtHR, Judgment of 28 November 1991, Series A, No. 220, at 15, para.

48, emphasis added. 364 Id. at 16, para. 49.

91Due Process in Peacetime: International Law

trial, and any initial failure to comply with such guarantees would critically distort the fairness of the trial.���

The right to “free assistance of an interpreter if he cannot speak the language used in court” is provided for in Article 6(3)(e), and the Court has held that it is an impor- tant component of the right to a fair trial and it “signifies that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or state- ments in the proceedings instituted against him which it is necessary for him to un- derstand in order to have the benefit of a fair trial.”���

Article 6(3)(d) ensures that the accused and the prosecution stand on an equal footing as regards the calling and examination of witnesses. It enshrines the principle of the equality of arms and the right of adversarial questioning of witnesses. In argu- ing the policy grounds of this provision the Court held that this right requires that “an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness makes his statement or at some later stage of the proceedings….”��� This interpretation challenged the French tradition of treating written statements of witnesses as evidence without bringing them to testify orally.��� Accordingly, the Court found a violation of this provision where the defense had not been given the opportunity to challenge the credibility of the witnesses who had given their testimony at the stage of police investigation.��� However, the Court has stated that the right to call witnesses is not without restric- tion. The qualification of this interpretation is that the testimony of a certain witness will help to establish the truth, otherwise the court can refuse to hear the statement if irrelevant to the truth.��0 The defendant’s right to a fair trial and the principle of equality of arms is also denied when the case was decided on the basis of evidence of which the defense was unaware,��� or when the prosecution had withheld material

365 Murray v. The United Kingdom, supra note 358, at 54, para. 62. 366 Luedicke, Belkacem and Koç, ECtHR, Judgment of 28 November 1978, Series A, No. 29,

at 20, para. 48. 367 Delta v. France, ECtHR, Judgment of 19 December 1990, Series A, No. 191-A, at 16, para.

36. 368 For more on practical effects of the ECHR and the Strasbourg case-law on the criminal

procedure of certain European countries, see European Criminal Procedures, supra note 256, at 46-50.

369 See also Unterpertinger v. Austria, ECtHR, Judgment of 24 November 1986, Series A, No. 110, where the Court found a violation of Article 6 (1) and (3) (d) because the applicant “ had not had an opportunity at any stage in the earlier proceedings to question the per- sons whose statements [were] read out at the hearing.” Id. at 14-15, para. 31.

370 See Jacobs & White, supra note 307, referring to Wiechert v. Federal Republic of Ger- many, 7 March 1964, (1964) 7 Yearbook 104, at 112.

371 See Brandstetter v. Austria, 11170/84; 12876/87; 13468/87 [1991] ECHR 39 (28 August 1991). In this case the prosecutor, in conformity with the Austrian law, had filed a “croquis” (the prosecutorial observations) with the trial court, without notifying the defendant, or pro- viding him a copy. The judgments of the trial court and appellate court both relied upon

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evidence from the defense and had not consulted the judge about this,��� or when evidence is taken by the judge in the absence of the defendant,��� aiming to avoid intimidation of the witness, but resulting in lack of opportunity on the part of the defendant to challenge the statement of such witness.

Relevant to pre-trial investigation guarantees is also paragraph (g) of Article 6(3), the right “not to be compelled to testify against himself or to confess guilt,” otherwise known as the right to remain silent, which prohibits any exertion of pressure on the suspected persons to force them to confess guilt. Extreme violations of such guaran- tees would be incommunicado detentions during which the suspected are ill-treated and tortured to have them confess guilt.��� The Court was adamant in its reasoning regarding this issue when it stated that “there can be no doubt that the right to re- main silent under police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6. … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6.”���

Before analyzing the trial guarantees, it would be of significance to see how the Court has dealt with several issues related to the observance of certain human rights, which could be of interest within the scope of this study, during criminal investiga- tions. Article 3 enshrines one of the most fundamental values of democratic societ- ies. The Court has noted that “[e]ven in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.”��� In order to avoid rep-

this ex parte filing. Though it was legal under Austrian law to not serve the defendant with the pleading, it was improper under the ECHR, Art. 6 § 1 of which requires that the defendant formally know of any evidence and argument submitted to the court. Id. paras. 67-69.

372 Rowe and Davis v. United Kingdom, 28901/95 [2000] ECHR 91 (16 February 2000), para. 54. The Court noted “a procedure, whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against the public interest in keeping the information secret, cannot comply with the …requirements of Article 6 § 1.” Id. at para. 63.

373 See Asch v. Austria, Judgment of 26 April 1991, Series A, No. 203-A; 15 EHRR 597 (1993). 374 See Communication No. 139/1983, H. Conteris, Views adopted on 17 July 1985, UN Doc.

GAOR, A/40/40, at 202, para. 10 read in conjunction with at 201, para. 9.2. See also Com- munication No. 159/1983, R. Cariboni v. Uruguay, Views adopted on 27 October 1987, UN Doc. GAOR, A/43/40, at 190, para. 10.

375 John Murray v. The United Kingdom, supra note 358, at 49, para. 45. The Court went on to reason that what was at stake was “whether these immunities are absolute in the sense that the exercise by an accused of the right to silence cannot under any circumstances be used against him at trial or, alternatively, whether informing him in advance that, under certain conditions, his silence may be so used, is always to be regarded as ‘improper com- pulsion.’” Id. at para. 46.

376 Ramirez Sanchez v. France, 59450/00 [2006] ECHR 685 (4 July 2006), para. 115, available at http://www.worldlii.org/eu/cases/ECHR/2006/685.html.

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etition, I will not deal at length with prohibition of torture, as a well-established erga omnes obligation on the part of the states.��� However, it is important to note that the court has established certain principles regarding determinations on allegations of ill-treatment. So, any such allegations must be supported by appropriate evidence.��� In assessing such evidence, the Court adopts the standard of proof “beyond a rea- sonable doubt,” which means the burden of proof rests with the defendant. In cases dealing with persons in state’s custody the Court notes that “strong presumptions of fact will arise in respect of injuries occurring during such detention,”��� shifting the burden of proof to the authorities, which are required to provide an acceptable and persuasive explanation,��0 otherwise “strong presumptions of fact will arise in respect of injuries occurring during such detention.”��� In one of the most recent decisions, the Court noted that prolonged solitary confinement could potentially amount to in- human treatment in cases related to persons placed under judicial investigation and then convicted in connection with a series of terrorist attacks. Finding no violation of Article 3 in the case of Ramirez Sanchez v. France,��� where the solitary confinement was applied for eight years and two months, pre-trial and after, the Court reasoned that it “accepts that the applicant’s detention posed serious problems for the French authorities. The applicant, who was implicated in various terrorist attacks that took place in the 1970s, was at the time considered one of the world’s most dangerous terrorists. It is to be noted on this point that on the many occasions he has since had to state his views (in his book, newspaper articles and interviews) he has never disowned or expressed remorse for his acts. Accordingly, it is understandable that the authorities should have considered it necessary to combine his detention with extraordinary security measures.”��� The Court took into account the Government’s

377 The jurisprudence of the Court is consistent on this issue. It has constantly reiterated that it is the obligation of government authorities not only to refrain from any form of inhu- man treatment, but also to investigate any allegations of torture and inhuman, degrading treatment, as well as to account for any injuries caused to persons within their control in custody. See recently the case of Yavuz v. Turkey, 67137/01, 10 January 2006, [2006] ECHR 23, para. 38, available at http://www.worldlii.org/eu/cases/ ECHR/2006/23.html, reiterating mutatis mutandis, Berktay v. Turkey, No. 22493/93, 1 March 2001, para. 168, and Çolak and Filizer v. Turkey, Nos. 32578/96 and 32579/96, 8 January 2004, para. 168. Id. at para. 42.

378 See Klaas v. Germany, ECtHR, Judgment of 22 September 1993, Series A, No. 269, at 17- 18, para. 30.

379 Mikheyev v. Russia, 77617/01 [2006] ECHR 78 (26 January 2006), para. 102, available at http://www.worldlii.org/eu/cases/ECHR/2006/78.html.

380 Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII. In the absence of such explanation, the Court can draw inferences which may be unfavorable for the respondent Government. Mikheyev v. Russia, supra note 379, para.102. See also Orhan v. Turkey, No. 25656/94, 18 June 2002, para. 274.

381 Mikheyev v. Russia, supra note 379, para. 102. 382 Ramirez Sanchez v. France, supra note 376. 383 Id. at para. 125. However, the Court condemned practices such as strip searches. See Sylla

v. The Netherlands, 14683/03, 6 July 2006, [2006] ECHR 694, para. 61, the Court found

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concerns that the defendant could use outside communications to re-establish con- tact with members of his terrorist cell, and inside communications to proselytize among other prisoners or to prepare an escape.

Wire tapping is the first issue to be dealt with in this paragraph, and the Court has held that telephone tapping amounts to “an interference by a public authority” with the applicant’s right to respect for his or her correspondence and private life,��� unless it is done “in accordance with the law”, pursuing one or more of the legitimate aims and is necessary in a democratic society.��� Of particular importance is the Court’s reference to “the quality of the law, requiring it to be compatible with the rule of law,”��� which would guard against arbitrary interferences and provide adequate legal safeguards against abuse. In the Court’s view, in cases where the law bestows upon authorities a power of discretion, the law must also “indicate the scope of that discre- tion.”��� The Court has also cautioned against practices in which “a very large number of people are deprived of the protection of the law…[which] would in practice render the protective machinery largely devoid of substance,”��� and that it is necessary in a democratic society that such interceptions of communications must be strictly inter- preted in favor of the right to privacy.

The Court’s jurisprudence sheds light on the issue of interference with correspon- dence in cases of individuals deprived of their liberty. In a case where two persons detained on remand exchanged letters which included “criticisms of prison condi- tions and in particular the behavior of certain prison officers,” the Court found a vio- lation of Article 8, considered that tampering with them was not justified and though “some of the expressions used were doubtless rather strong ones, … they were part of a private letter which under the relevant legislation … should have been read by [the addressee] and the investigating judge only.”��� Of even greater importance is corre-

the practice of weekly routine strip-searches to amount to treatment contrary to Article 3. Available at http://www.worldlii.org/ eu/cases/ECHR/2006/694.html.

384 Article 8 of the ECHR states: 1. Everyone has the right to respect for his private and family life, his home and his cor-

respondence. 2. There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or mor- als, or for the protection of the rights and freedoms of others.

385 For a detailed analysis of the Court’s jurisprudence regarding these limits, see Pati, supra note 249, at 250-257 (2005).

386 Huvig v. France, ECtHR, Judgment of 24 April 1990, Series A, No. 176-B, at 54, para. 29. 387 Malone v. United Kingdom, ECtHR, Judgment of 2 August 1984, Series A, No. 82, at 56,

para. 34. 388 Lampert v. France, ECtHR, Judgment of 24 August 1998, Reports 1998-V, at 2241-2242,

paras. 38-40. 389 Pfeifer and Plankl v. Austria, ECtHR, Judgment of 25 February 1992, Series A, No. 227, at

19, para. 47.

95Due Process in Peacetime: International Law

spondence between a lawyer and a person detained on remand. The Court found the state in violation of Article 8 because of the fact that the district prosecutor withheld the letter sent to the detained by his potential lawyer.��0

The prohibition of retroactivity of criminal laws is guaranteed in Article 7(1).��� Like the ICCPR, it refers to acts that did not constitute a criminal offence under national or international law at the time committed, and it is not susceptible to derogation under Article 15. This provision enshrines the principle of legality, i.e. that an offense must be clearly defined in law. The Court has interpreted this article to embody “the principle that only the law can define a crime and prescribe a penalty (nullum cri- men, nulla poena sine lege), as well as the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance, by analogy,”��� affecting thus both the legislature and the courts’ interpretation of criminal law. It excludes any broad construction of criminal legislation.��� The notion of national or international law complements the principle of legality, that penal consequences exist even if a conduct is not an offence prescribed in municipal law, but constitutes a crime under international law, as well as it potentially extends national courts’ jurisdiction over crimes against international law. This notion is further elaborated in Article 7(2) by mention of general principles of law recognized by civilized nations.

Another vital principle in the administration of criminal justice is the prohibition of double jeopardy. This is guaranteed in Article 4��� of Protocol No. 7 to the Euro- pean Convention on Human Rights and Fundamental Freedoms, which in paragraph 2 also states that there could be a re-opening of the case if there is evidence of new facts, or if there was a fundamental defect in previous proceedings. This provision is unique in the sense that in its paragraph 3 it states expressis verbis that the principle is

390 Schönenberg and Durmaz, ECtHR, Judgment of 20 June 1988, Series A, No. 137. 391 Article 7(1) of the ECHR states:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

392 Kokkinakis v. Greece, ECtHR, Judgment of 25 May 1993, Series A, No. 260-A, at 22, para. 52.

393 For a detailed discussion of the interpretation of the criminal law, see Jacobs & White, supra note 307, at 164-166.

394 Article 4 of Protocol No. 7 to the ECHR, available at http://conventions.coe.int/treaty/ en/Treaties/Html/ 117.htm, states:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No dero- gation from this Article shall be made under Article 15 of the Convention.

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non-derogable. In the case of Oliveira v. Switzerland,��� the Court interestingly argues that Article 4 of Protocol No. 7 “prohibits people being tried twice for the same of- fence whereas in cases concerning a single act constituting various offences (concours idéal d’infractions) one criminal act constitutes two separate offences.”���

As to punishments, the Court has been adamant against judicial corporal punish- ment. It has argued against it in the following terms: “The very nature of judicial cor- poral punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalized violence that is in the pres- ent case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State. … Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment – whereby he was treated as an object in the power of the authorities – constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a person’s dignity and physical integrity.”���

c. Due Process in Appeal No conviction acquires the status of res judicata until all appeals have been con- cluded, or until the time for appeal expires. The right to appeal is guaranteed in Article 2��� of Protocol No. 7 to the Convention, though the Convention does not, per se, provide for it.��� However, in paragraph 2 of the same provision there is a quali- fication which provides for exceptions to this right “in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried

395 Oliveira v. Switzerland, ECtHR, Judgment of 30 July 1998, Reports 1998-V. 396 Id., at 1998, para. 26. 397 Tyrer v. The United Kingdom, ECtHR, Judgment of 25 April 1978, Series A, No. 26, at 16,

para. 33. In the same paragraph the Court went on arguing “Neither can it be excluded that the punishment may have had adverse psychological effects. The institutionalized character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender. Admittedly, the relevant legislation provides that in any event birching shall not take place later than six months after the passing of sentence. However, this does not alter the fact that there had been an interval of several weeks since the applicant’s convic- tion by the juvenile court and a considerable delay in the police station where the pun- ishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him” (emphasis added).

398 Article 2 of Protocol No. 7 to the ECHR provides that: 1. Everyone convicted of a criminal offence by a tribunal shall have the right to have

his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first in- stance by the highest tribunal or was convicted following an appeal against acquittal.

399 Tolstoy Miloslavsky v. United Kingdom, ECtHR, Judgment of 13 July 1995, Series A, No. 316-B, at 79, para. 59.

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in first instance by the highest tribunal or was convicted following an appeal against acquittal.” Nevertheless, the Court has constantly mandated that “a Contracting State which sets up an appeal system is required to ensure that persons within its juris- diction enjoy before appellate courts the fundamental guarantees” of Article 6 and has clarified that “the manner of application of Article 6 to proceedings before such courts depends on the special features of the proceedings involved” and “account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein.”�00 Actually, the guarantees of Article 6 apply equally to court proceedings as well as to procedures that precede and follow them.�0� The Court found a violation of this provision in cases when the prosecution was in a more advantaged position than the defense, by joining in the deliberation of judges when deciding on how to dispose of the appeal.�0�

3. The Inter-American Convention on Human Rights and the Jurisprudence of the Commission and the Court

a. Due Process before Trial The American Convention on Human Rights deals with the right to personal liberty and security, also providing for guarantees against arbitrary arrest and detention in its Article 7.�0�

The Inter-American Court on Human Rights (IACtHR) has interpreted the issue of the legality of detention, both substantively and procedurally, in the case of Gan- garam Panday v. Suriname,�0� and has held that paragraphs two and three of Article 7 guarantee that “no person may be deprived of his or her personal freedom except for reasons, cases or circumstances expressly defined by law (material aspect) and, furthermore, subject to strict adherence to the procedures objectively set forth in that law (formal aspect). The second provision addresses the issue that no one may be subjected to arrest or imprisonment for reasons and by methods which, although classified as legal, could be deemed to be incompatible with the respect for the funda-

400 Ibid. 401 For several illustrations on guarantees of Article 6 see Mole & Harby, supra note 277. 402 The Court actually reconsidered its previous decision of Delcourt v. Belgium, supra note

312, that considered the general prosecutor as impartial, and noted the importance of “appearances” and “increased sensitivity of the public to the fair administration of jus- tice.” See Borgers v. Belgium, 12005/86 [1991] ECHR 46 (30 October 1991), para. 24.

403 Article 7 of the American Convention on Human Rights, inter alia, states: 1. Every person has the right to personal liberty and security. 2. No one shall be deprived of his physical liberty except for the reasons and under the

conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment. 404 Gangaram Panday v. Suriname, IACtHR, Judgment of January 21, 1994, OAS Doc. OAS/

Ser.L/V/III.31, Doc. 9, Annual Report of the Inter-American Court of Human Rights 1994, at 32.

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mental rights of the individual because, among other things, they are unreasonable, unforeseeable or lacking in proportionality.”�0� In this reasoning, the Court empha- sizes the need for not merely existence of a law, but for a certain quality of the law, which has to be appropriate, just, foreseeable and complying with due process of law. The Court has also found violations of Article 7(1), (2) and (3) in cases of arrest and detention without a written order issued by a judicial authority,�0� and in cases when detention, prosecution and conviction proceeded in defiance of a judicial order of release.�0� Within the realm of Article 7, the Inter-American Court of Human Rights has reasoned against incommunicado detention and forced disappearances. In the Velásquez Rodríguez Case,�0� the Court held that “[t]he kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee’s right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in violation of article 7 of the Convention.”

The Inter-American Commission on Human Rights in interpreting the guaran- tees offered by Article 7(5)�0� has stated that if a court is not officially informed of a detention or is informed only after significant delay, the rights of a detainee are not protected. That would also lead to other types of abuses, erode respect for the courts and their effectiveness and institutionalize lawlessness.��0 The Commission has also stated that a detainee should be brought before a judge or other judicial authority “as soon as it is practicable to do so” and that “delay is unacceptable.”��� In its Seventh Re- port on the Situation of Human Rights in Cuba the Commission pointed out that in Cuba, “in theory, the law allows for a detainee to remain in prison for a week without appearing before a judge or court competent to hear his case. In the opinion of the Commission, this is an excessively prolonged period.”���

405 Id. at para. 47. 406 Castillo Páez v. Peru, IACtHR, Judgment of November 3, 1997, OAS Doc. OAS/Ser.L/V/

III.39, Doc. 5, Annual Report Inter-American Court of Human Rights 1997, at 263, para. 56.

407 Cesti Hurtado v. Peru, IACtHR, Judgment of September 29, 1999, OAS Doc. OEA/Ser. L/V/III.47, Doc. 6, Annual Report Inter-American Court of Human Rights 1999, at 445, paras. 141-143.

408 Velásquez Rodríguez v. Honduras, IACtHR, Judgment of July 29, 1988, Series C, No. 4, at 146-147, paras. 154-155.

409 Article 7(5) of the ACHR provides: Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

410 Inter-American Commission, Second Report on the Human Rights Situation in Suri- name, OEA/Ser. L/V/II.66, Doc. 21 rev. 1, 1985, at 23.

411 Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc 10, rev.1 at 73, 24 April 1997.

412 Inter-American Commission, Seventh Report on the Situation of Human Rights in Cuba, 1983, OEA/Ser.L/V/II.61, Doc.29, rev.1, at 41

99Due Process in Peacetime: International Law

The Inter-American Court of Human Rights (IACtHR) interprets Article 7(6)��� jointly with Article 25,��� which guarantees judicial protection. Like the HRC, the In- ter-American Court places utmost importance on the existence of effective remedies to violations of rights, and the mere existence of remedies in the law is not enough. In the case of Castillo Petruzzi et al. v. Peru,��� the Court argues that “the right to a simple and prompt recourse or any other effective remedy filed with the competent court that protects that person from acts that violate his basic rights is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention,”��� and that such a right can not be derogated from or suspended under any circumstances.��� In this case, the Court found a violation of both Article 7(6) and Article 25, because the victims had no possibility of recourse to judicial guarantees. The domestic law that regulated the crime of treason “denied persons suspected of terrorism or treason the right to bring actions seeking judicial guarantees,” and another law amended the Habeas Corpus and Amparo Act to the effect that “the writ of habeas corpus was impermissible when petitioner’s case is in its examining phase or when petitioner is on trial for the very facts against which remedy is being sought.” The applicants were subsequently con- victed of treason by a “faceless” military tribunal.

In the case of Suárez Rosero v. Ecuador, stressing that the remedies guaranteed in article 7(6) “must be effective, since their purpose… is to obtain without delay a decision on the lawfulness of [his] arrest or detention, and, should they be unlawful,

413 Article 7(6) of the ACHR provides: Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

414 Article 25 of the ACHR states: 1. Everyone has the right to simple and prompt recourse, or any other effective recourse,

to a competent court or tribunal for protection against acts that violate his funda- mental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

2. The States Parties undertake: a. To ensure that any person claiming such remedy shall have his right determined

by the competent authority provided for by the legal system of the State; b. To develop the possibilities of judicial remedy; and c. To ensure that the competent authorities shall enforce such remedies when

granted. 415 Castillo Petruzzi et al. v. Peru, IACtHR, Judgment of May 30, 1999, OAS Doc. OEA/Ser.

L/V/III.47, Doc. 6, Annual Report of the Inter-American Court of Human Rights 1999. 416 Id. at 276, para. 184. 417 Id. at 277, para. 186.

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to obtain, also without delay, an order [for] his release,”��� the Court also noted that “in order for habeas corpus to achieve its purpose, which is to obtain a judicial de- termination of the lawfulness of a detention, it is necessary that the detained person be brought before a competent judge or tribunal with jurisdiction over him.”��� The Court has also found a violation in a case where the Peruvian military did not obey the decision of the Public Law Chamber of the Superior Court of Justice in Lima which upheld a petition for habeas corpus, and went on with the arrest.��0

Access to legal counsel during pre-trial, though not expressly stated in the ACHR, is considered important by the Inter-American Commission, which has stated that the right to defend oneself requires that an accused person has access to legal assis- tance when first detained, and that a law which prohibits a detainee from access to counsel during detention and investigation could seriously encroach on the right to defense.���

b. Due Process during Trial The most elaborate article providing for a fair trial in the American Convention is Article 8,��� which, inter alia, states that “[e]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and

418 Suárez Rosero v. Ecuador, IACtHR, Judgment of November 12, 1997, OAS Doc. OAS/Ser. L/V/III.39, Doc. 5, Annual Report of the Inter-American Court of Human Rights 1997, at 298, para. 63.

419 Ibid. 420 Cesti Hurtado v. Peru, supra note 407, at 443, para. 133. 421 Annual Report of the Inter-American Commission, 1985-1986, OEA/Ser.L/V/II.68, Doc.

8 rev. 1, 1986, at 154, El Salvador. 422 Article 8 of the ACHR states:

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: (a) the right of the accused to be assisted without charge by a translator or inter-

preter, if he does not understand or does not speak the language of the tribunal or court;

(b) prior notification in detail to the accused of the charges against him; (c) adequate time and means for the preparation of his defense; (d) the right of the accused to defend himself personally or to be assisted by legal

counsel of his own choosing, and to communicate freely and privately with his counsel;

(e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

101Due Process in Peacetime: International Law

impartial tribunal, previously established by law.” Among these due guarantees, in the case of Villagrán Morales et al. v. Guatemala,��� the Inter-American Court noted that “it is evident from article 8 of the Convention that the victims of human rights violations or their next of kin should have substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek due reparation.”���

Article 8(1) refers to a competent, independent, and impartial tribunal, previously established by law, and the Court has recommended that the member States of the OAS “take the steps necessary to protect the integrity and independence of mem- bers of the Judiciary in the performance of their judicial functions, and specifically in relation to the processing of human rights violations; in particular, judges must be free to decide matters before them without any influence, inducements, pressures, threats or interferences, direct or indirect, for any reason or from any quarter.”��� The Court has further elaborated that the independence of any judge is preconditioned by an adequate process of appointment (“un adecuado proceso de nombramiento”), for a period in the post (“con una duración en el cargo”) and with guarantees against external pressures (“con una garantía contra presiones externas”).���

The right of the accused to be assisted without charge by a translator or interpret- er, guaranteed in Article 8(2)(a), has been interpreted by the Inter-American Com- mission to include the right to translation of documents, and it has been considered to be fundamental to due process.���

Within the pre-trial rights included in this provision is Article 8(2)(b), providing for “prior notification in detail to the accused of the charges against him.” The Court found a violation of the above provision in a case, where the indictment was presented

(f ) the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

(g) the right not to be compelled to be a witness against himself or to plead guilty; (h) the right to appeal the judgment to a higher court.

3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.

5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

423 Villagrán Morales et al. (The “Street Children” Case) v. Guatemala, IACtHR, Judgment of November 19, 1999, Series C, No. 63.

424 Id. at 195, para. 227. 425 OAS Doc. OEA/Ser.L/V/II.95, Doc. 7 rev., Annual Report of the Inter-American Com-

mission on Human Rights 1996, at 761. 426 Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru),

IACtHR, Judgment of 31 January 2001, para. 75 (Spanish version). Available at http:// www.corteidh.or.cr/ serie_c/C_71_ESP.html.

427 See Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA Ser.L/V/11.62, Doc.10, rev. 3, 1983. Available at http://www1. umn.edu/humanrts/ iachr/country-reports/nicaragua1983.html .

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only one day before judgment was rendered, so in the Court’s view “the accused did not have sufficient advance notification, in detail, of the charges against them.”��� This of course violated also Article 8(2)(c), as it did not allow for “adequate time and means for the preparation of [their] defense.” The Court went on reasoning that “the condi- tions under which the defense attorneys had to operate were wholly inadequate for a proper defense, as they did not have access to the case file until the day before the ruling of first instance was delivered.” In the same case Article 8(2)(d), which pro- vides, inter alia, for the right of the accused “to be assisted by legal counsel of his own choosing” was also violated when later they were assigned court-appointed lawyers, and not allowed legal counsel of their choice until one day before trial.��� Paragraph 2(c) is closely related to Article 8(2)(c), which provides for “the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel.” The phrase “communicate freely and privately” is of particular importance to note, as this is a characteristic only of the American Convention, and it protects the confidentiality of the client-lawyer relationship. The Court found a violation of Article 8(2)(c), (d) and (e) in a case where the victim had been held in incommunicado detention for 36 days, unable to consult any lawyer, and even when finally he was visited by the lawyer, he was “unable to com- municate with him freely and privately,” but only in the presence of police officers.��0

Article 8(2)(f ) provides for “the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts.” The Court found a violation of this article in a case where the applicable law “did not allow for the cross-examination of the witnesses whose testimony was the basis for the charges brought against the alleged victims.”���

Article 8(2)(g) provides the right not to be compelled to be a witness against himself or to plead guilty and it is read jointly with Article 8(3) which states that “a confession of guilt by the accused shall be valid only if it is made without coercion of any kind.” The Court found no violation of this article in the case of Castillo Petruzzi because the trial records showed that the accused were only urged to tell the truth, but no punish- ments or any other legal consequences were threatened, if they refused to do so.���

The right to a public hearing, Article 8(5), in the ACHR is only guaranteed in crimi- nal proceedings, which “shall be public, except insofar as may be necessary to protect the interests of justice,” and the Inter-American Court has argued against trials held in secret, “out of the public eye.”��� In the Castillo Petruzzi case involving Peru, the Court noted that “the proceedings were conducted on a military base off limits to the

428 Castillo Petruzzi et al. v. Peru, supra note 415, at 202, paras. 141-142 read in conjunction with para. 138, at 201.

429 Id. at 202, para. 141. 430 Suárez Rosero v. Ecuador, supra note 418, at 301, para. 83; see also at 292, para. 34.g and

h. 431 Castillo Petruzzi et al. v. Peru, supra note 415, at 205, paras. 153 and 156. 432 Id. at 210, paras. 167-168. 433 Id. at 211, paras. 172-173.

103Due Process in Peacetime: International Law

public,”��� and that constituted a manifest violation of the right to a public hearing. The Inter-American Commission as well has expressed itself for the elimination of secret justice by “faceless judges” in Columbia,��� and by military tribunal in Chile,��� as it denies the defendants their due process of law.

Article 9��� of the Convention provides for freedom from ex post facto laws, but in contrast from the ICCPR and ECHR that refer to national and international law, the American Convention notes only “the applicable law.”

The principle of ne bis in idem is guaranteed in Article 8(4), which states that “an accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.” The Court has explicated that unlike “the formula used by other international rights protection instruments, … the American Convention uses the expression ‘the same cause’, which is a much broader term in the victim’s favor.”��� In the case of Loayza Tamayo, the Court also held that the Decree Laws con- taining the crimes of “terrorism” and “treason” were in themselves contrary to article 8(4), since they referred “to actions not strictly defined” which could be “interpreted similarly within both crimes” as was done in that particular case, thus giving rise to unacceptable legal insecurity.���

c. Due Process in Appeal Article 8(2)(h) of the American Convention on Human Rights specifies that in crimi- nal proceedings “every person is entitled, with full equality [to] the right to appeal the judgment to a higher court.” In interpreting this provision the Court has noted that the mere existence of “a higher court than the one that tried and convicted the accused and to which the latter has or may have recourse” does not per se satisfy the requirements of Article 8(2)(h). In order to ensure a true review of the judgment “the higher court must have the jurisdictional authority to take up the particular case in question.”��0 In finding a violation of this provision in the case of Petruzzi et al. v. Peru, the Court reasoned that the appeal available to victims was a superior court “part of the military structure and as such did not have the independence necessary

434 Ibid. 435 Inter-American Commission, Second Report on the Situation of Human Rights in Co-

lombia, OEA/ Ser.L/V/II.84, Doc 39, 1993, at 249. 436 Case 9755, Chile, Inter-American Commission, 132, 137, OEA/Ser.L/V/I.74, Doc.10, rev. 1

(1988). 437 Article 9 of the ACHR states:

No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be im- posed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.

438 Loayza Tamayo v. Peru, IACtHR, Judgment of September 17, 1977, OAS Doc. OAS/Ser. L/V/III.39, Doc. 5, 1997 Annual Report I-A Court HR, at 213, para. 66.

439 Id. at 213, para. 68. 440 Castillo Petruzzi et al. v. Peru, supra note 415, at 208, para. 161.

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to act as or be a tribunal previously established by law with jurisdiction to try civil- ians.” In the Court’s view, “there were no real guarantees that the case would be re- considered by a higher court that combined the qualities of competence, impartiality and independence that the Convention requires.”���

4. The African Charter on Human and Peoples’ Rights and the Jurisprudence of the African Commission on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights (hereinafter the African Char- ter) reflects in its name the importance of the collectivity by including, as bearers of rights, “peoples,” and by mandating “duties” in addition to rights. As to the subject of our discussion, it deals rather inadequately with the right to a fair trial.��� Spread over several articles, elements of fair trial guarantees are in many respects left to the creative interpretation of the African Commission on Human and Peoples’ Rights (hereinafter the African Commission or ACHPR).��� The African Court of Human Rights that came into being on January 25, 2004 is not yet fully operational.���

a. Due Process before Trial Article 6��� provides the right to liberty and to the security of a person and protects against arbitrary arrest. In the case of World Organisation against Torture and Others v. Zaire, the victims were detained indefinitely and the African Commission found a violation of Article 6 reasoning that the “indefinite detention of persons can be in- terpreted as arbitrary as the detainee does not know the extent of his punishment.”���

441 Ibid. 442 For an analysis of this issue, see Christof Heyns, Civil and Political Rights in the African

Charter, in The African Charter on Human and Peoples’ Rights: the System in Practice, 1986-2000, 137 (Malcolm D. Evans & Rachel Murray eds., 2002). As to the concept of “peoples’ rights” as well as the jurisprudence of the African Commission of Human Rights, see Frans Viljoen, International Human Rights Law in Africa 242-248 (2007).

443 Heyns, supra note 442, at 155. 444 The first eleven Judges of the African Court on Human and Peoples’ Rights were elected

on January 22, 2006 by the Eighth Ordinary Session of the Executive Council of the African Union, and they held their first meeting on July 2-5, 2006. The Court’s seat is in Arusha, Tanzania, on the other side of the continent from The Gambia where the African Commission is located. For more on the Court, see www.aict-ctia.org.

445 Article 6 of the African Charter on Human and Peoples’ Rights, available at http://www1. umn.edu/ humanrts/instree/z1afchar.htm (last visited on June 22, 2006) states:

Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

446 World Organisation against Torture and Others v. Zaire, Communications Nos. 25/89, 47/90, 56/91 and 100/93, ACHPR, Decision adopted during the 19th session, March 1996, para. 67; for the text see http://www.up.ac.za/chr/ (last visited on June 11, 2006.)

105Due Process in Peacetime: International Law

Arbitrary deprivation of liberty within the meaning of Article 6 is also found when a person is detained without charges and without the possibility of bail. In the case of Constitutional Rights Project and Civil Liberties Organisation v. Nigeria,��� the de- tainees were kept in such conditions for over three years. In the same case, a violation was also found on the fact that a decree prohibited the writ of habeas corpus.���

In expanding the interpretation of Article 6, the African Commission has held that the security agents of a State party should “scrupulously” comply with the re- quirement to submit grounds for arrest and to inform promptly the persons arrested of any charges against them.��� The Commission has held that not only should arrests and detention be in accordance with known laws, but such laws “must be in accor- dance with the provisions of the Charter.”��0 A prima facie violation of the right not to be arbitrarily arrested or detained was also found in a case where the courts had no power in considering the lawfulness of detention.��� A violation of Article 6 was also found when the victim arrested in the interest of national security was never charged with any offence, nor had he stood trial.��� The same happened in a case of arrest and detention without charge and without recourse to the courts for redress.��� The Commission has also interpreted the phrase “previously laid down by the law” to imply a temporal as well as a substantive standard, meaning that any deprivation of freedom be consistent with the Charter.��� Furthermore, the Commission has cau- tioned that the “competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution or international human rights standards.”���

447 Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communica- tion No. 102/93, ACHPR, Decision adopted on 31 October 1998, para. 55 of the text pub- lished at the following web site: http://www1.umn.edu/humanrts/africa/comcases/102- 93.html (last visited on June 11, 2006).

448 Ibid. at paras. 22-34. 449 Huri-Laws (on behalf of the Civil Liberties Organisation) v. Nigeria, Communication

No. 225/98, ACHPR, Decision adopted during the 28th Ordinary Session, 23 October – 6 November 2000, paras. 43-44, available at http://www1.umn.edu/humanrts/africa/ comcases/225-98.html (last visited on June 13, 2006).

450 See Kazeem Aminu v. Nigeria, Communication No. 205/97 (2000), ACHPR, para. 20, available at http://www1.umn.edu/humanrts/africa/comcases/205-97.html.

451 International PEN and Others v. Nigeria, Communications Nos. 137/94, 139/94, 154/96 and 161/97, ACHPR, Decision adopted on 31 October 1998, para. 83, available at http:// www1.umn.edu/ humanrts/africa/comcases/137-94_139-94_154-96_161-97.html.

452 Alhassan Abubakar v. Ghana, Communication No. 103/93, ACHPR, Decision adopted during the 20th session, October 1996, paras. 9-10, available at http://www1.umn.edu/ humanrts/africa/comcases/103-93.html (last visited on June 13, 2006).

453 Kazeem Aminu v. Nigeria, supra note 450, para. 21. 454 Heyns, supra note 442, at 155, referring to the case of Sir Dawda K. Jawara v. The Gambia,

Communications 147/95 and 149/96. 455 See Dawda Jawara v. The Gambia, Communications Nos. 147/95 and 149/96 (2000),

ACHPR, para. 59. The Commission further added that a previously laid law has to be consistent with State party’s obligations under the Charter, and it found the arrests and

106 Chapter II

b. Due Process during Trial The African Charter does not provide a detailed provision on fair trial, like the ones provided by the ICCPR, the ECHR and the ACHR. However, in its interpretation of the trial guarantees provided for in Article 7��� of the Charter, the Commission, based on Article 60,��� is enabled to “draw inspiration” from other international instruments for the protection of human and peoples’ rights, such as Article 14 of the ICCPR. Its case law, which abundantly deals with violations of detention and trial rights, shows that the Commission has constantly taken advantage of this empowerment, requir- ing that the trial should be fair as a whole, and interpreting the Charter to require elements like a public hearing, the right to an interpreter, the protection against self- incrimination, as well as the protection against double jeopardy, etc.��� In the case of Media Rights Agenda v. Nigeria,��� the Commission invoked��0 paragraph 6 of the General Comment No. 13 of the HRC reasoning in favor of a public hearing, and finding a violation of Article 7 because of the fact that the government had failed to specify the exact grounds for the non-publicity of the trial. The Commission stated that “[t]he exceptional circumstances under the International Covenant on Civil and

incommunicado detention of the concerned persons to be inconsistent with Gambia’s obligations under the Charter. Ibid.

456 Article 7 of the ACHPR states: 1. Every individual shall have the right to have his cause heard. This comprises:

(a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regula- tions and customs in force;

(b) the right to be presumed innocent until proved guilty by a competent court or tribunal;

(c) the right to defense, including the right to be defended by counsel of his choice;

(d) the right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally

punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

457 Article 60 of the ACHPR states: The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peo- ples’ rights, the Charter of the United Nations, the Charter of the Organization of Afri- can Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.

458 Heyns, supra note 442, at 155-156. 459 Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No.

224/98, ACHPR, Decision adopted during the 28th session, 23 October – 6 November 2000, available at http://www1.umn.edu/humanrts/africa/comcases/224-98.html (last visited on June 22, 2006).

460 Id. at para. 51.

107Due Process in Peacetime: International Law

Political Rights, which the … [HRC] monitors are for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. The Commission notes that these circumstances are exhaustive, as indicated by the use of the phrase ‘apart from such exceptional circumstances.’”���

Though the African Charter does not specifically guarantee the right to be prompt- ly brought before a judge or other judicial officer, the African Commission has inter- preted Article 7(1)(a)’s “right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force,” to include a right for the victims “to challenge the arrest and detention before a court of law.”��� It has also held that detaining vic- tims “for weeks and months…without any charges being brought against them,” fail- ing in this way to bring them before a judge or other judicial officer for trial, violated Article 7(1)(a) of the Charter.��� A violation was also found when detainees who were considered illegal aliens were denied the opportunity to appeal to national courts.���

Article 7(1) also provides in paragraph (b) for “a competent court or tribunal,” and in (d) provides for “an impartial court or tribunal.” In addition, Article 26 of the Char- ter imposes upon the States parties “the duty to guarantee the independence of the Courts.” So, though it is worded differently and spread out over several provisions, the right to a competent, independent, impartial tribunal is guaranteed in the African system of human rights protection. The Commission has placed great importance on this issue. It considered courts the bastion of protection of human rights when explaining the relationship between Articles 7 and 26,��� and it deemed ousting of the courts’ jurisdiction to constitute an “attack of incalculable proportions on Article 7.”��� Moreover, in the view of the African Commission Article 7 must be considered

461 Id. at para.52. 462 International PEN and Others v. Nigeria, supra note 451, paras. 83-84. 463 Huri-Laws (on behalf of Civil Liberties Organisation) v. Nigeria, supra note 449, para.

45-46, available at: http://www1.umn.edu/humanrts/africa/comcases/225-98.html. See also Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa, Amnesty International on behalf of Orton and Vera Chirwa v. Malawi (64/92, 68/92, 78/92 respectively), 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994-1995, ACHPR/RPT/8th/Rev.I, where the African Commission held that failure to allow a prominent political figure detained for 12 years without charge or trial to challenge the violation of his right to liberty before a court violated Article 7(1)(a) of the African Charter.

464 Rencontre Africaine pour la défense de droits de l’homme v. Zambia, (71/92), 10th An- nual Report of the African Commission, 1996 -1997, ACHPR/RPT/10th.

465 In the case of Civil Liberties Organization v. Nigeria, Communication 129/94 (1995), available at http://www1.umn.edu/humanrts/africa/comcases/129-94.html, the Com- mission explains: “While Article 7 focuses on individual’s right to be heard, Article 26 speaks of the institutions which are essential to give meaning and content to that right.” Id. at para. 15.

466 Id. at para. 14.

108 Chapter II

as non-derogable since it provides “minimum protection to citizens.”��� In this re- spect, in the case of Constitutional Rights Project v. Nigeria, the Commission found the Civil Disturbances (Special Tribunal) Act incompatible with Article 7(1)(d) of the African Charter. This special criminal tribunal ousted the power of regular courts to “inquire” into the actions of the tribunal.��� Also, under the terms of the Act, the tribunal should consist of one judge and four members of the armed forces. Accord- ing to the Commission, the tribunal was as such “composed of persons belonging largely to the executive branch of government, the same branch that passed the Civil Disturbance Act.”��� The Commission went on stating that “regardless of the char- acter of the individual members of such tribunals, its composition alone creates the appearance, if not actual lack, of impartiality,”��0 reasoning thus in the same way as the European Court of Human Rights, that even appearance of partiality is enough to constitute a violation of the provision.���

The presumption of innocence, as part of the right to have one’s cause heard, is guaranteed in Article 7(1)(b), which states that every individual has “the right to be presumed innocent until proved guilty by a competent court or tribunal.” The Com- mission has also found a violation in cases where leading government representatives had pronounced the accused persons guilty of crimes during various press confer- ences as well as before the United Nations.��� A violation of the right to be presumed innocent was also found in the case of Annette Pagnoulle v. Cameroon, where the person was detained two more years after serving his prison term on grounds that he “may cause problems.”��� In a case against Mauritania, the Commission found a breach of this provision on the basis that “the presiding judge [had] declared that the refusal of the accused persons to defend themselves was tantamount to an admission of guilt.”��� Later, the tribunal had based its verdict “on the statements made by the

467 Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria, Communication No. 218/98, ACHPR, Decision adopted during the 29th Or- dinary session, 23 April – 7 May 2001, para. 27. Available at http://www1.umn.edu/hu- manrts/africa/comcases/218-98.html.

468 Heyns, supra note 442, at 157. 469 Constitutional Rights Project (on behalf of Zamani Lakwot and six others) v. Nigeria,

Communication No. 87/93, ACHPR, para. 13, available at http://www1.umn.edu/hu- manrts/africa/comcases/87-93.html.

470 Id. at para. 14. 471 Oberschlick, supra note 343. 472 International PEN and Others (on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organ-

isations) v. Nigeria, ACHPR, Communications Nos. 137/94, 139/94, 154/96 and 161/97, Decision adopted on 31 October 1998, paras. 94-96, available at http://www1.umn.edu/ humanrts/africa/comcases/137-94_139-94_154-96_161-97.html.

473 See Heyns, supra note 442, at 158. 474 Malawi African Association and Others v. Mauritania, Communications Nos. 54/91,

61/91, 98/93, 164/97 à 196/97 and 210/98 (2000), ACHPR, para. 95, available at http:// www1.umn.edu/humanrts/ africa/comcases/54-91.html.

109Due Process in Peacetime: International Law

accused during their detention in police cells, which statements were obtained from them by force.”

Article 7(1)(c) guarantees “the right to defense, including the right to be defended by counsel of his choice.” The Commission found a violation of this provision in a case where the accused, though allowed access to a lawyer, was not represented by a lawyer of his own choice.��� While interpreting this right, the African Commission also paid due respect to the confidentiality of communication between the accused and the counsel of his choice, thus providing not only the right to have his prepara- tion of defense assisted by a competent counsel but also respecting the guarantees that are not clearly provided for in the provisions of the Charter.��� As stated above, in such cases the Commission draws from various international instruments, gen- eral principles of law recognized by the African States, customs generally accepted as law, as well as legal precedents and doctrine.��� The Commission has constantly considered the right to legal counsel as a fundamental component of the right to a fair trial, noting that the interests of justice in critical contentions/conflicts particu- larly mandate the benefit of the assistance of a lawyer for the accused at each stage of the case. Consequently, the Court found a violation of this provision in the case of Avocats Sans Frontières v. Burundi.��� Insufficient time for the lawyer to prepare the defense for their clients was considered to be in violation of the right to defense.��� A breach was also found in a case where trial and judgment has continued though the defense counsel was intimidated to such extent, that he was forced to withdraw from the case.��0 This provision has been interpreted to include the right of access to a lawyer even when detained without trial.��� The Commission interpreted the right

475 Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No. 224/98, ACHPR, Decision adopted during the 28th session, 23 October – 6 November 2000, paras. 55-56 of the text of the decision as published at http://www1.umn.edu/hu- manrts/africa/comcases/224-98.html. However, the right to be defended by counsel of one’s own choice has been considered to be problematic, if counsel would mean “a fully qualified and admitted lawyer.” Such an interpretation has been avoided favoring the term to mean “a legal representative.” See Heyns, supra note 442, at 158.

476 ACHPR /Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992), para. 2 (e/i) states that in determination of charges against him the individual is entitled to “[h]ave adequate time and facilities for the preparation of their defense and to communi- cate in confidence with counsel of their choice. Available at http://www.achpr.org/eng- lish/resolutions/resolution09_en.html .

477 Media Rights Agenda v. Nigeria, supra note 475, para. 51. 478 Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication

No. 231/99, ACHPR, Decision adopted during the 28th Ordinary session, 23 October – 6 November 2000, para. 30, available at http://www1.umn.edu/humanrts/africa/com- cases/231-99.html.

479 Malawi African Association and Others v. Mauritania, supra note 474, para. 96. 480 Constitutional Rights Project (on behalf of Zamani Lekwot and six others) v. Nigeria,

supra note 469, para. 29. 481 Media Rights Agenda and Others v. Nigeria, Communications Nos. 105/93, 128/94,

130/94 and 152/96, ACHPR, Decision adopted on 31 October 1998, available at http://

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to defense to also include the right to understand the charges, so indirectly providing for a right to an interpreter.��� Moreover, the Commission, through general resolu- tion, is translating internationally accepted principles into the substance of the fair trial provisions of the Charter.���

Trial within reasonable time is provided for in Article 7(1)(d), and the Commission has interpreted this provision in a number of cases. In the case of Krischna Achuthan and Amnesty International v. Malawi,��� the Commission found a violation of this provision on the basis of the victim’s being detained indefinitely without trial. An interesting interpretation is found in the case of Dawda Jawara v. The Gambia, ���

www1.umn.edu/humanrts/africa/ comcases/105-93_128-94_130-4_152_96.html. 482 Malawi African Association and Others v. Mauritania, supra note 474. In paragraph 97,

the Commission notes that “[i]n the trial on the September Manifesto … only 3 of the 21 accused persons spoke Arabic fluently, and this was the language used during the trial. This means that the 18 others did not have the right to defend themselves; this also con- stitutes a violation of article 7(1)(c).”

483 The Commission, largely drawing from international jurisprudence on human rights, has taken up the issue of fair trial in its 1992 Resolution on the Right to Recourse Procedure and Fair Trial, (ACHPR Res.4(XI)92), available at http://www.achpr.org/english/resolu- tions /resolution09_en.html, stating, inter alia, in para. 2-3, that:

“the right to fair trial includes, among other things, the following: a) All persons shall have the right to have their cause heard and shall be equal before the

courts and tribunals in the determination of their rights and obligations; b) Persons who are arrested shall be informed at the time of arrest, in a language which

they understand of the reason for their arrest and shall be informed promptly of any charges against them;

c) Persons arrested or detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released;

d) Persons charged with a criminal offence shall be presumed innocent until proven guilty by a competent court;

e) In the determination of charges against individuals, the individual shall be entitled in particular to:

i) Have adequate time and facilities for the preparation of their defense and to commu- nicate in confidence with counsel of their choice; ii) Be tried within a reasonable time; iii) Examine or have examined, the witnesses against them and to obtain the at-

tendance and examination of witnesses on their behalf under the same condi- tions as witnesses against them;

iv) Have the free assistance of an interpreter if they cannot speak the language used in court.

3. Persons convicted of an offence shall have the right of appeal to a higher court.” 484 Krischna Achutan (on behalf of Banda) and Amnesty International (on behalf of Or-

ton and Vera Chirwa) v. Malawi, Communications Nos. 64/92, 68/92, and 78/92 (1995), ACHPR, para. 9, available at http://www1.umn.edu/humanrts/africa/comcases/64-92b. html.

485 Dawda Jawara v. The Gambia, supra note 455.

111Due Process in Peacetime: International Law

where the Minister of Interior was empowered to detain anyone without trial for up to six months, with the possibility to extend the period ad infinitum. The Com- mission found such powers to be analogous to those of a court, and according to the Commission “with all intents and purposes, [the Minister] is more likely to use his discretion to the detriment of the detainees, who are already in a disadvantaged posi- tion. The victims will be at the mercy of the Minister who, in this case, will render a favor rather than vindicating a right. This power granted to the Minister renders valueless the provision enshrined in Article 7(1)(d) of the Charter.”��� Considering the impartiality of courts in this provision, the Commission focused on the necessity for courts to have “personnel qualified to ensure that they operate impartially,” and it found a violation of the right of individuals to have their case heard by such impartial tribunals in a case where the government acted against the judiciary by dismissing over one hundred judges.��� In the context of this study, it is of interest to observe that the African Commission has found fault with military tribunals as regards prin- ciples of impartiality and independence, stating that “their very existence constitutes a violation” of such principles. Furthermore, while requesting that Military Courts and Special Tribunals respect fair trial standards in determining offences of a pure military nature, the Commission cautions that “[t]hey should in no circumstances whatsoever have jurisdiction over civilians…[neither should] Special Tribunals …try offences which fall within the jurisdiction of regular courts.”���

The prohibition on retroactivity of criminal law, guaranteed by Article 7(2), was interpreted by the Commission in the case of Media Rights Agenda and Others v. Nigeria.��� The Commission reasoned that this provision prohibits “not only con- demnation and infliction of punishment for acts which did not constitute crimes at the time they were committed, but retroactivity itself.” It went on commenting that the rule of law would be undermined, the potential prosecution was a serious threat, and “a terrible uncertainty” would occur for a law-abiding citizen, if laws were to be changed with retroactive effect.��0

486 Id. at para. 61. 487 Amnesty International and Others v. Sudan, Communications No. 48/90, 50/91, 52/91,

89/93 (1999), ACHPR, para. 69, available at http://www1.umn.edu/humanrts/africa/ comcases/48-90_50-91_52-91_89-93.html.

488 Dakar Declaration and Recommendations, adopted by the African Commission on Hu- man and Peoples’ Rights (“the Commission”) in collaboration with the African Society of International and Comparative Law and Interrights, in Dakar, Senegal, on 11 September 1999, para. 3 of the text available at http://www.chr.up.ac.za/hr_docs/african/docs/ach- pr/achpr2.doc. It is important to note the Commission has referred to this paragraph of the declaration in its case law. Cf. Forum of Conscience v. Sierra Leone, Communication No. 223/98 (2000), ACHPR, para. 16, available at http://www1.umn.edu/humanrts/ af- rica/comcases/223-98.html.

489 Media Rights Agenda and Others v. Nigeria, supra note 481. 490 Id. at paras. 58-59.

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c. Due Process in Appeal Article 7(1)(a) provides for “the right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by con- ventions, laws, regulations and customs in force.” The Commission found a viola- tion of this provision in the case of Constitutional Rights Project,��� because the Civil Disturbances Act, passed by the Nigerian Government, excluded any review by any court of law of the “validity of any decision, sentence, judgment … or order given or made, … or any other thing whatsoever done under this Act.”��� The Commission went on arguing that “to foreclose any avenue of appeal to ‘competent national organs’ in criminal cases bearing [capital] penalties clearly violates” Article 7(1)(a) of the Char- ter, “and increases the risk that even severe violations may go unredressed.”��� In line with other regional systems of human rights protection, the African Commission did not consider a “genuine appeal procedure” and found a violation of this provision, in a case where the “Court of Appeal simply confirmed sentences without considering all the elements of fact and law”��� and reasoned that this is not an effective appeal. A violation was also found when no appeal was allowed after a conviction by a military court, as this “falls short of the requirement of the respect for fair trial standards expected of such courts.”���

B. Customary International Law and General Principles of Law

Having discussed treaty law as one of the sources of due process guarantees in inter- national law, this study will now turn to the other two sources as listed in Article 38��� of the Statute of the International Court of Justice,��� i.e. customary international law and general principles of law.

491 Constitutional Rights Project, supra note 447. 492 Id. at paras. 26-27. 493 Id. at para. 28. 494 Malawi African Association and Others v. Mauritania, supra note 474, para. 94. 495 The Commission found “the execution of the twenty four soldiers without the right of ap-

peal” to be in violation of article 7(1)(a) of the Charter. See Forum of Conscience v. Sierra Leone, supra note 488, para. 17.

496 Article 38(1) of the ICJ Statute reads as follows: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) subject to the provisions of Article 59, judicial decisions and the teachings of the most

highly qualified publicists of the various nations, as subsidiary means for the determi- nation of rules of law.

497 June 26, 1945, 59 Stat. 1055, U.N.T.S. No. 993.

113Due Process in Peacetime: International Law

1. Due Process in Customary International Human Rights Law

Does the right to a fair trial, in full or in part, constitute a norm of customary inter- national law? In analyzing this issue it is important to see the historical evolution of this right in its legal context. Many a time a norm enshrined in a treaty may have already been part of customary international law, or it might develop into a rule of customary international law.��� In order for a norm to rise into the status of custom- ary international law it must enjoy very widespread and representative support, both in normative statements and practice, from amongst the states of the international community (consuetudo), and this must occur out of sense of legal obligation (opinio juris).��� The right to a fair trial, in its entirety seems to run squarely within these boundaries, as it is laid down in many national constitutions and international hu- man rights instruments.

The focal point of the customary human rights law argument has always been the Universal Declaration of Human Rights, adopted by the United Nations General As- sembly in 1948. As one uniting document, acceptable to all the world’s divisions, on a comfortable level of generality and simplicity, harnessing idealism, it may provide the text rallying state and peoples’ support more effectively than the hard and detailed law chiseling the scope and limits of each right as hammered out in the compromise texts of human rights treaties, in particular, the two UN human rights covenants of 1966.

a. The Universal Declaration on Human Rights The Universal Declaration on Human Rights�00 (hereinafter UDHR), referred to by Eleanor Roosevelt as “a Magna Carta for all mankind,”�0� is modeled after the civil law tradition as it constitutes a code aiming to be comprehensive. It includes a pre- amble followed by thirty articles, and it represents the first consensus declaration of the international community of nation-states regarding specific rights and freedoms of all human beings. Although technically it does not have the binding power of a treaty, the great majority of its provisions, generated from a cross-section of provi- sions from existing bills of rights and constitutional documents, have been followed sufficiently widely in state practice, even found their way into constitutions, often of newly-independent states, that they can be considered to have been maturing into

498 Eckart Klein, A Comment on the Issue of Reservations, supra note 143, at 62. 499 Criteria for the formation of new customary law have been detailed in the North Sea

Continental Shelf Case (F.R.G. v. Den. /F.R.G. v. Neth.) 1969 I.C.J. 3, 41-44. 500 Adopted by U.N. General Assembly Resolution 217A (III), December 10, 1948. Its articles

are for the most part considered declarative of customary international law and are vitally important in cases when a state has not ratified or acceded to the ICCPR or other signifi- cant human rights instruments.

501 Eleanor Roosevelt’s speech before the General Assembly as she submitted the Decla- ration for review. Available at http://www.udhr.org/history/Biographies/bioer.htm (last visited on June 10, 2006).

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state obligations under customary international law.�0� This has also been confirmed, in the case of one right at least that is at issue in this study, by the high authority of the International Court of Justice in its dictum in the case concerning United States diplomats and staff held hostages in Tehran,�0� where the ICJ stated that “wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights,”�0� thus arguably confirming the legally bind- ing nature of such “fundamental principles.”

The most recent affirmation of the legal status of the UDHR is its inclusion as a basis for the review of states’ practices in the Universal Periodic Review Mechanism of the United Nations Human Rights Council, side by side with the UN Charter and the human rights treaties which a state has ratified.�0� So, within the institutionalized community of nations, the UDHR is already considered to be a standard of some normative power in evaluating states’ behavior regarding human rights.

Also, the Restatement (Third) of U.S. Foreign Relations Law of 1987 mentions that “[i]t has been argued that customary international law is already more comprehensive than here indicated and forbids violation of any of the rights set forth in the Universal Declaration.”�0� This argument would, however, be overstating the case, since it can- not be maintained that, for example, the “right to change one’s nationality” as listed in Article 15(2) of the Declaration would be recognized by any presently existing state as a human right of any individual to opt into its nationality. Still, most of the rights listed in the Declaration do have both sufficient state support, both in practice and opinio juris, that they have become part and parcel of customary law.

502 For scholarly contributions on the formation of customary international law, see gener- ally David Fidler, Challenging the Classical Concept of Custom: Perspectives on the Future of Customary International Law, 39 German Y.B. Int’l L. 198 (1996); Ralph Gaebler, Conducting Research in Customary International Law, in Contemporary Practice of Public International Law 77 (E. Schaffer & R. Snyder eds., 1997); Suzanne Thorpe, A Guide to International Bibliography, in Contemporary Practice of Public Inter- national Law 17, 38 (E. Schaffer & R. Snyder eds., 1997); Shabtai Rosenne, Customary International Law, in Practice and Methods of International Law 55 (1984); For the U.S. Perspective on Customs and Principles, see Restatement (Third) of Foreign Relations Law, § 102; § 702; § 701 (1987).

503 United States of America v. Iran, 1980 I.C.J. 42, para. 91. 504 Ibid. Emphasis added. 505 See Human Rights Council, Annex to Resolution 5/1 of 18 June 2007—United Nations

Human Rights Council: Institution Building (Universal Periodic Review Mechanism), available at http://ap.ohchr.org/ documents/E/HRC/resolutions/A_HRC_RES_5_1.doc.

506 Restatement (Third) of Foreign Relations Law of the United States, § 702, Reporter’s note 1 (1987). See Myres S. McDougal, Harold D. Lasswell, and Lung- chu Chen, Human Rights and World Public Order 273-74, 325-27 (1980); Hum- phrey Waldock, Human Rights in Contemporary International Law and the Significance of the European Convention, in The European Convention on Human Rights 15 (1963) (British Inst. Int’l & Comp. L., Int’l L. Ser. No. 11).

115Due Process in Peacetime: International Law

This means that the UDHR reflects, in many of its provisions, obligations of all states owed to each other – erga omnes – and benefiting human beings within their jurisdiction�0� whether they have or have not endorsed the Declaration – for as long as they have not been a persistent objectors to a particular such obligation.�0� Indeed the UDHR has surpassed the aspiration of the General Assembly which in Article 13 of the UDHR encouraged back in 1948 “the progressive development of international law and its codification.” Its influence is tangible in the constitutions�0� and national legislation of many newly independent states, which are inspired by the UDHR, and enshrine in their laws the spirit of democracy and rule of law promoted by the UDHR (see, e.g. article 21 of the Universal Declaration of Human Rights). Its materializa- tion is also obvious at a universal and regional level, having inspired more than sixty

507 The 1968 International Conference on Human Rights proclaimed that the UDHR “states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.” Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 (1968), at 3, para. 2.

508 “Although customary law may be built by the acquiescence as well as by the actions of states … and become generally binding on all states, in principle a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures.” Restatement (Third), Foreign Relations Law of the United States 24, 25-26 (1987). Cf. David A. Colson, How Persistent Must the Persistent Objector Be?, 61 Wash. L. Rev. 957, 969 (1986). See also Prosper Weil, Towards Relative Normativity in International Law?, 77 Am. J. Int’l L. 413, 433-34 (1983) (call- ing the persistent objector doctrine the “acid test of custom’s voluntarist nature”). This traditional concept has been attacked, not only from the angle of peremptory norms of international law (jus cogens). See Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 Brit. Y.b. Int’l L. 1-24 (1986); id., Universal International Law, 87 Am. J. Int’l L. 529, 538-542 (1993).

509 See, for example, the constitution of South Africa after the collapse of the Apartheid re- gime. It was strongly influenced by international human rights standards and its Chapter 2 is a detailed Bill of Rights, including rights like the right to equality, the right to freedom and security of the person, the freedoms of expression, assembly and association, political rights, environmental rights, the right to property, the right of access to adequate hous- ing, the right to health care services, sufficient food and water, social security, the rights of the child, the right to basic education, the right of access to courts and the rights of arrested, detained and accused persons. Available at http://www.info.gov.za/documents/ constitution/1996/96 cons2.htm (last visited on June 10, 2006). However, some scholars are cautious when talking about UDHR as customary law, as regards the evidentiary power of national constitutions. Since evidence of state practice is required to support the claims that certain rights have become part of customary international law, Oscar Schachter notes in his book, International Law in Theory and Practice (1981), at 336: “Constitutions with human rights provisions that are little more than window- dressing can hardly be cited as significant evidence of practice.” Then he concludes that although some important human rights included in the declaration have become cus- tomary law, neither governments nor courts have accepted the Universal Declaration of Human Rights “as an instrument with obligatory force.” Id. at 337.

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human rights instruments,��0 which constitute today a commonly accepted interna- tional standard of human rights, as well as countless declarations and resolutions. A number of such treaty and non-treaty instruments explicitly refer to the UDHR, sometimes employing the very same language (see article 19 of UDHR and article 19 of ICCPR). Another fact that goes to show that various articles in the UDHR have now become part of the body of customary law is that many national courts refer to the UDHR as a source of standards for judicial decisions.��� But, what rights have ac- tually achieved the status of customary law? The list is not necessarily complete, and it is not closed: human rights not listed in this section may have achieved the status of customary law, and some rights might achieve that status in the future. It is beyond the scope of this study to enumerate all customary law UDHR rights, thus, it will only focus on the ones related to the topic under discussion.

A number of UDHR articles relate directly to issues of due process by establishing safeguards against unlawful deprivations of liberty in connection with the prosecu- tion of a criminal offence. Its Article 3 proclaims that “[e]veryone has the right to life, liberty and security of a person,” prohibiting governmental transgression of these rights through arbitrary detention or forced disappearances; Article 9 expressed in a prohibition clause that “[n]o one shall be subjected to arbitrary arrest, detention or exile,” requiring from states that any curtailment of liberty has to be on grounds and pursuing procedures established by law; Article 10��� contains a general right to an equal, fair, and public hearing, as a primary institutional guarantee that no decisions will be made by political institutions, and that the accused will be tried in court, by a independent and impartial tribunal, in a manner open to the public administration of justice. Article 11,��� in two paragraphs, delineates the principle of presumption of innocence, which applies to treatment before trial and during trial and which means that the burden of proof lies with the prosecution; it provides guarantees necessary for the defense of the accused, as an important aspect of the fundamental principle of “equality of arms,” as well as the principle nulla poena sine lege, protection from ret-

510 Available at http://www.tiger-tail.org/human_rights_mechanisms_and_international_ law.htm (last visited on June 10, 2006).

511 Restatement (Third), Foreign Relations Law of the United States § 701, Re- porter’s Note 7, at 158 (1987). Cf., e.g., Zemel v. Rusk, 381 U.S. 1. 14 n. 13 (1963); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 161 n. 16 (1965).

512 Article 10 reads: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

513 Article 11 states: (1) Everyone charged with a penal offence has the right to be presumed innocent until

proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

117Due Process in Peacetime: International Law

rospective application of laws in criminal proceedings, at the same time imposing an obligation on states to define precisely all criminal offences and respective sanctions in their penal laws. Its reference to international law means that a person committing an offence under international law (such as genocide, other crimes against humanity, war crimes, slavery, torture etc.) can still be prosecuted, even if such a crime did not constitute an offence in the national law at the time it was committed.

It is necessary to mention in this context three more articles of the UDHR. Ar- ticle 5,��� the prohibition of torture, is instrumental to the right to a fair trial, which cannot be realized if detention will interfere with the faculties and the capabilities of the accused through torture or ill treatment. Article 6 enshrines the right to recog- nition everywhere before the law, guaranteeing the individual to have all protection offered by a legal system, no matter whether he is a citizen or not. Article 7,��� the right to equality before the law, in the context of a fair trial, prohibits discriminatory laws as regards access to courts and treatment by the courts. The significance of the UDHR as it relates to issues of due process in criminal proceedings is paramount, as it legally binds, in this context via customary international law, all governments of the world, whatever their particular view may be, since national constitutions and criminal procedure laws widely include these fair trial��� provisions and no state has persistently objected generally, and, especially, to the UDHR’s due process rights, Articles 9 through 11. It would thus be safe to say that the rights enumerated above reflect customary international law.

b. General Principles of Law Recognized by the Community of Nations Listed third as a source of international law in Article 38 of the Statute of the Inter- national Court of Justice, the general principles of law recognized by the community of nations serve to ascertain cases in which international treaties and customary law might not provide sufficient source for the Court to make a decision. They reflect principles analogous to those found in the major legal systems of the world, and his- torically may derive from them or from a more remote common origin.��� A general

514 Article 5 reads: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or pun- ishment.

515 Article 7 states: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

516 It may indicate the high rank and core nature of due process rights in the human rights catalogue that the HRC has noted that there cannot be a general reservation to the right to a fair trial under Article 14 [of the ICCPR], even though this article is not listed in Ar- ticle 4 as non-derogable. See General Comment 24 (52), on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6 (1994), para. 8. Available at http://www1.umn.edu/humanrts/gencomm/hrcom24.htm .

517 Restatement (Third), supra note 506, at § 102 (1987).

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principle of international human rights law is a fundamental legal norm or principle of human rights character that is found in all major legal systems throughout the world there has to be enough evidence showing that States, in their domestic law,��� adhere to this legal principle. In this case such a principle would be legally binding as a source of international law under Article 38(1)(c) of the ICJ statute. Domestic courts in their reasoning when rendering judgment would look to other legal systems to determine whether a particular human rights standard has been accepted enough to be considered such a general principle of law.

In the field of due process guarantees, the Restatement of U.S. Foreign Relations Law (Third) states that “rules that have been drawn from general principles include rules relating to the administration of justice, such as the rule that no one may be judge in his own cause; res judicata; and rules of fair procedure generally. General principles may also provide ‘rules of reason’ of a general character, such as … the principle that rights must not be abused, and the obligation to repair a wrong. Inter- national practice may sometimes convert such a principle into a rule of customary law.” The same document also notes that there is substantial international law on hu- man rights that makes it “plausible to conclude that a rule against torture is part of international law, since such a principle is common to all major legal systems.”���

Bin Cheng’s seminal book titled General Principles of Law as Applied by International Courts and Tribunals, upon thorough analysis, articulated a number of general principles of law that constitute part of due process guarantees. To begin with, the principle of nemo debet judex in propria sua causa, a universally accepted doctrine, adopted by all systems of law, provides a basic and vital guarantee of impartiality in the administration of justice, though its “application extends be- yond purely judicial proceedings.”��0 Its raison d’être remains “justice is impartial,”��� and it disqualifies both parties in the dispute, that by definition are partial, to serve as judges, which must be impartial. In addition, “[j]ustice…must not only be just, but appear so. A judge must not only be impartial, but there must be no possibility of suspecting his impartiality.”���

Audiatur et altera pars. The juridical equality of parties as litigants is prejudiced if one of the parties is not present. The absence of the defendant destroys the equilibrium of

518 A recent good example of an excellent collection of national case law in determining the current state of international criminal law is the book by Antonio Cassese, Interna- tional Criminal Law (2003). Thus, for instance, through such analysis of domestic cases as well as the practice of ad hoc international tribunals, he shows us how a rule of international criminal law actually develops, for instance chapter 4 on crimes against humanity, chapter 13.1 on superior orders etc.

519 Restatement (Third), supra note 506, at § 702 (d); § 701 (1987). 520 Bin Cheng, General Principles of Law as Applied by International Courts

and Tribunals 279 (1987, repr. 1994). 521 Commissioner Gore in The Betsy Case (1797) in Cheng, at 284. 522 Report of the Advisory Committee for the establishment of the Permanent Court, in

Cheng, supra note 520, at 289.

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a suit at law and constitutes a defective judicial procedure, which in its routine would have both parties be heard. However, the process is not rendered defective if a party is not heard because it refuses to appear before a court after it had been duly notified, or because it fails to present its case,��� if there is no vis major for such a failure.��� Thus the maxim audiatur et altera pars expresses exactly the requirement of equality between the parties in judicial proceedings, and in international proceedings there has never been a refusal to hear one of the parties.��� Rules of procedure make sure that the judge hears the statements of both sides on the issue at dispute and also on the statements of the opponent, which allows for control on errors, omissions, mis- statements.��� In addition, this provides an opportunity for furnishing enough data to enable the judge to make the right decision, because while the judge knows the law, the parties, as a rule, prove the facts of the case.

Jura novit curia, a well-known principle of municipal law, is also applicable in inter- national law. The court ascertains the law which it administers, i.e. it has to comply with the terms of the instrument that establishes it and confers jurisdiction upon it.��� It is not bound by the arguments of the parties in determining the meaning and the effect of the applicable law. The principle implies that the court has to examine ques- tions of law proprio motu,��� while the parties raise questions of fact.

The last argument leads to another general principle of international law, that in judi- cial proceedings it is “accepted by the law of all countries that it is for the claimant to make the proof of his claim.”��� Mutatis mutandis, any party who asserts a violation of international law which brings about international accountability has the burden of proving its allegation.��0

The principle of res judicata linked to ne bis in idem ascertains the terms of a definitive and obligatory final judgment of a competent tribunal. The execution of such judgment cannot be submitted to any conditions other then what the judgment sanctions. Its understanding in international law of human rights has been dealt with in the above sections.

523 Such was considered to be the case in the Corfu Channel Case (1949) before the Interna- tional Court of Justice. Albania omitted to file its submissions, thus failed to defend its case, and the ICJ proceeded without the participation of Albania. Consequently, find- ing the damages claimed by the United Kingdom as justified, the ICJ allowed the claim. Corfu Channel Case (Compensation), 1949 I.C.J. 244, 248.

524 Cheng, supra note 520, at 296. 525 Id. at 291. 526 Id. at 293-294. 527 Id. at 300. 528 PCIJ, International Commission of the River Oder Case (1929), A. 23, at 18-19, in Cheng,

at 299, n. 2. 529 The Queen Case (1872), in Cheng, supra note 520, at 327, n. 11. 530 Cheng, at 306, referring to Portugo-German Arbitration (1919) and to Claims for Losses

Suffered in Belgium (1930), n. 17.

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Finally, acts, resolutions and declarations of a non-binding nature promulgated by intergovernmental organizations��� and their expert organs��� may provide evidence of general principles. Such policy statements and principles that the representatives of states consent to, mostly without a vote, may also be observed in their domestic action.

Such binding and non-binding instruments and the corresponding state practice served as sources in a recent study of customary international humanitarian law un- dertaken by the International Committee of the Red Cross. It concluded that many elements of the due process constitute now general principles of law��� – which shows that there is a somewhat fluid line between customary international law and general principles of law. This research, since it was developed in the ambit of the laws of war, will be developed further in the next chapter on international law and due process in times of emergency.

c. Déni de justice: International Minimum Standard of Diplomatic Protection

Civis Romanus Sum���

Diplomatic protection, a legal institution with origins far back in feudal times as an obligation of protection owed subjects by their feudal lord in exchange for their

531 Such examples would constitute the U.N. General Assembly, U.N. Security Council, U.N. Human Rights Commission (now the U.N. Human Rights Council), the Council of Europe, the Organization for Security and Cooperation in Europe, the Organization of American States, the African Union, etc.

532 For instance, the U.N. Human Rights Commission and the U.N. Sub-Commission on Promotion and Protection of Human Rights and its working groups as well as its the- matic and country special rapporteurs, their fact-finding missions, etc. are a good exam- ple of lots of studies made in the field. Under the newly-established U.N. Human Rights Council, such expert bodies have variously been continued or are being established; a universal periodic review is being undertaken. Cf. http://www2.ohchr.org/english/ bod- ies/hrcouncil/7session/index.htm (last visited on February 17, 2008).

533 See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary Interna- tional Humanitarian Law, Volume 1 (ICRC, 2005), as well as discussion on funda- mental rights in armed conflicts in its chapter on emergency situations.

534 Latin for “I am a Roman Citizen.” This phrase was invoked by Lord Palmerston, the Brit- ish Foreign Secretary, when he addressed the House of Commons regarding the case of Don Pacifico, a British subject whose house in Greece had been burned down by an anti- Semitic mob and whose legal claim arising from these facts had not been acknowledged by the Greek Government. He stated:

As the Roman, in days of old, held himself free from indignity when he could say ‘Civis Romanus Sum,’ so also a British subject in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him against injustice and wrong.

Parl.Deb., vol. 62, ser. 3, col. 380, 25 June 1850, quoted in Jan Paulsson, Denial of Jus- tice in International Law 15-16 (2005). See also Elihu Root, The Basis of Protection to Citizens Residing Abroad, 4 Am. J. Int’l L. 517, 522 (1910). For more on this case, see International Protection of Human Rights 40-58 (Louis Sohn & Thomas Buer- genthal eds., 1973).

121Due Process in Peacetime: International Law

perpetual allegiance,��� has changed in the era of the modern nation-state into the right of the state to protect its citizens in cases of violations of their rights under international law, be they customary or treaty-based, by another state. In post-feudal times, the notion was based on Vattel’s maxim that an injury to an alien is an injury to his state.��� Denial of justice, better known, due to its time-honored origin, in the language of the old lingua franca of international law, as déni de justice, has been a key element of the customary international minimum standard of the rights of aliens giving rise to legitimate claims of home state protection since the very beginnings of modern international law. Déni de justice has its distinct history��� and, over the years, has assumed different meanings. Vattel defined it the following way:

Now, justice may be refused in several ways: (1) By an outright denial of justice or by a refusal to hear the complaints of a State or of its

subjects or to allow the subjects to assert their rights before the ordinary tribunals. (2) By pretended delays, for which no good reason can be given; delays equivalent to a

refusal or even more injurious than one. (3) By a decision manifestly unjust and one-sided.���

The Institut de Droit International, at Lausanne in 1927, provided the following defi- nition:

Art. 5. The State is responsible on the score of denial of justice: (1) When the tribunals necessary to assure protection to foreigners do not exist or do not

function. (2) When the tribunals are not accessible to foreigners. (3) When the tribunals do not offer the guarantees which are indispensable to the proper

administration of justice.���

535 As Coke formulated it, “protectio trahit subjectionem et subjectio protectionem.” 7 Rep., 5a, quoted in the British treason case of Joyce v. Director of Public Prosecutions, [1946] A.C. 347, 364 et seq. (H.L.).

536 Emmerich de Vattel, The Law of Nations 161-171 (6th American ed. 1844). 537 For a brief description on the history of the notion from the time when merchants and

other individuals from one place or nation were badly treated in another and were denied justice, see Don Wallace, Jr., Fair and Equitable Treatment and Denial of Justice: Loewen v US and Chattin v Mexico, at 3, available at http://www.ili.org/images/books/Wallace- DenialofJustice-ILI.pdf (last visited on March 10, 2007).

538 Le droit des gens (1758), Book II, ch. 18, para. 350, quoted in Stephan Verosta, Denial of Justice, 1 Encyclopedia of Public International Law 1007, 1008 (Rudolf Bern- hardt ed., 1992).

539 Institut de Droit International, Session de Lausanne 1927, Responsabilité internationale des Etats à raison des dommages causés sur leur territoire à la personne et aux biens des étrangers, 1 September 1927, Art. 5, available at http://www.idi-iil.org/idiF/resolu- tionsF/1927_lau_05_fr.pdf (in French).

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Verosta comments that denial of justice may take “highly various” forms, including “any abuse of the practice of a court in each phase of a legal procedure, e.g. the misuse of a declaration of the inadmissibility of some legal avenue, the determination that a tribunal is not comprised to hear the issue, the transfer of an issue to another court, the irregular establishment of a court, or the unusual and inexcusable protraction of proceedings (justicia protracta).”��0 While “simple miscarriage of justice (mal jugé simple, défaut de justesse)” only “rarely” qualifies, “serious and intentional perversion of justice as a result of malicious and false evaluation of the evidence or determina- tion of the law” does.��� Also the denial or delay in bad faith of the enforcement of judgments may constitute a denial of justice.��� Verosta also notes that in “criminal proceedings, both judicial and administrative,” “any discrimination against individual aliens or groups in favor of resident nationals where the prosecution or [sic] crimi- nal offences or the enforcement of criminal penalties are concerned” may qualify. This applies particularly to “arbitrary arrest, the protraction of investigations and in- creased penalties against aliens” as well as the “insufficient prosecution of criminal acts carried out by the State’s own nationals against aliens,” including the protraction of investigations, mild penalties, the non-enforcement of penalties ordered against guilty resident nationals or abetting the escape of nationals from pre-trial detention, remand or ordinary imprisonment.”���

Denial of justice thus first and foremost encompasses the denial of judicial jus- tice,��� that is “improper administration of civil and criminal justice as regards an alien, including denial of access to courts, inadequate procedures, and unjust deci- sions.”��� Such a judicial failure, defined by Borchard as “misconduct or inaction of the judicial branch of the government by which an alien is denied the benefits of due process of law,”��� makes the state accountable in customary international law

540 Verosta, supra note 538, at 1008. 541 Id. “This view applies particularly when the court’s bad faith is manifestly directed against

the alien, for instance where legal forms are used purely as a cloak for arbitrary acts (ex- orbitant injustice, absence totale de justice). Ibid.

542 Id. 543 Id. 544 Don Wallace, Jr., supra note 644, at 3. Referring to John R. Dugard, Wallace goes on not-

ing that “stricto sensu, responsibility for injuries to aliens is more accurately responsibility for injuries to nationals of other states, for whom traditionally diplomatic protection may be exercised by that other state.” See Report, Art. 1 and the Commentary in First Report on Diplomatic Protection, by John R. Dugard, Special Rapporteur, International Law Com- mission, A/CN.4/506 (2000), available at http://ods-ddsny.un.org/doc/UNDOC/GEN/ N00/330/76/PDF/N0033076.pdf?OpenElement. Id. at note 11.

545 A.O. Adede, A Fresh Look at the Meaning of the Doctrine of Denial of Justice under Inter- national Law, 14 Can.Y. B. Int’l L. 72, 91 (1976).

546 Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad 330 (2003, reprint of 1919 ed.).

123Due Process in Peacetime: International Law

as it violates this law regarding proper administration of justice, and it constitutes a “wrong perpetrated by the abuse of judicial process.”���

The most recent monographic treatment of this issue, Jan Paulsson’s Denial of Justice in International Law,��� innovative in drawing on recent decisions mostly in the human rights and investment law field, concludes that misapplication of national law “cannot, by itself, be an international denial of justice.”��� This is true, in his opinion, also for misapplications by domestic courts of international law.��0 Beyond that, he concludes that “in modern international law there is no place for substantive denial of justice. … If a judgment is grossly unjust, it is because the victim has not been afforded fair treatment. … Extreme cases should thus be dealt with on the footing that they are so unjustifiable that they could have been only the product of bias or some other violation of the right of due process.”��� Limiting the concept thus to situations of fundamental procedural unfairness,��� he gives examples:

Some denials of justice may be readily recognized: refusal of access to court to defend legal rights, refusal to decide, unconscionable delay, manifest discrimination, corruption, or sub- servience to executive pressure.

Unfairness in the hearing of a case is a more difficult matter. … One might say that de- nial of justice arises when proceedings are so faulty as to exclude all reasonable expectation of a fair decision, but the choice of words is infinite. What they all have in common is that they lead to a debate to be resolved by appeals to experience, not to the dictionary. …

Recurring instances [of denials of justice] are unreasonable delay, politically dictated judgments, corruption, intimidation, fundamental breaches of due process, and decisions so outrageous as to be inexplicable otherwise than as expressions of arbitrariness or gross incompetence. …

[S]ome acts or omissions by governmental authorities are sufficiently closely related to the administration of justice that they must also be deemed capable of generating inter- national delinquency under the heading of denial of justice: failures of enforcement, the implementation of sanctions against persons or property without trial, failure of investiga- tion or indictment, lengthy imprisonment without trial, arbitrarily lenient or harsh punish- ment.���

This concludes the analysis of customary international law and general principles of law, as pertaining to criminal due process guarantees. The discussion proceeds with the procedural law and practice of international criminal tribunals.

547 Ibid. 548 Jan Paulsson, Denial of Justice in International Law (2005). 549 Id. at 81. 550 Id. at 84-87. 551 Id. at 82. 552 Id. at 98 (“Denial of justice is always procedural.”). 553 Id. at 205-206.

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C. Due Process in Proceedings before International Criminal Tribunals

The last century has seen the establishment of criminal courts beyond national ju- risdictions, tribunals designed to address its most heinous crimes. In the context of this study, it is of great interest to see whether, and to what degree, these courts’ structures and procedures adhere to the due process guarantees developed in the various universal and regional human rights systems discussed above. This section starts with an analysis of the International Military Tribunals at Nuremberg and To- kyo, followed by the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and ending with the permanent International Criminal Court.

The procedure of the nascent system of international criminal courts is only slow- ly developing. In the beginning, focused on the specialized contexts of the conflicts areas for which they were constituted, their procedure was written on a virtually clean slate. The Nuremberg and Tokyo Courts, comparatively speaking, were consti- tuted rather speedily, as speedily as they delivered justice. Their essential procedural features demonstrating their underlying idea of a fair trial will be analyzed first. The second wave of international adjudication of individual criminal liability started with the establishment of the International Criminal Tribunal for the former Yugoslavia in 1993, followed by the International Criminal Tribunal for Rwanda a year later. Both bodies were constituted by the UN Security Council; both developed extensive rules of procedure and evidence. As in Nuremberg, they were the shocked response of the international community to atrocities of unspeakable magnitude. In contrast to Nuremberg, their structure and procedure could build upon the human rights revo- lution post-World War II and benefit from a growing international jurisprudence, both regional and universal, outlining the minima of a fair trial, albeit directed to domestic courts. The last accomplishment in international criminal accountability is the International Criminal Court, established by international agreement via the Statute of Rome of 1998. It was designed to transcend the limitations of time and space afflicting the prior ad hoc tribunals and be the fallback court of last resort, when individual states did not have the power or the will to address acts that shock the conscience of humankind, i.e. international crimes, technically called genocide, crimes against humanity, war crimes, and, possibly, aggression.

The way these international bodies dealt with the issue of providing fairness to persons accused of most heinous atrocities may be instructive for the purposes of our study. Still, the ad hoc international tribunals mentioned above, by and large, could complete their tasks when the atrocities that gave rise to their creation had come to an end (with the exception of the 1999-2000 events in Kosovo); and they were located in relative peace either outside the country of the commission of these acts (The Hague, Arusha) or inside a country defeated by war (Germany, Japan).

Part 1 of this Chapter will address the procedural guarantees for defendants set up within the Charter and the Rules of the International Military Tribunals in Nurem- berg and Tokyo; Part 2 will introduce the guarantees afforded the accused before the International Criminal Tribunals for the former Yugoslavia and for Rwanda; and Part 3 will outline the rights of defendants and persons suspected of crimes before the International Criminal Court.

125Due Process in Peacetime: International Law

1. The International Military Tribunals in Nuremberg and Tokyo a. The IMT at Nuremberg The “International Military Tribunal for the just and prompt trial and punishment of the major war criminals of the European axis” (hereinafter IMT) was established on August 8, 1945 via inter-Allied agreement after the end of World War II and the Ger- man Reich’s unconditional surrender. This institution was the first of its kind.���

It had not come about without a fight. Particularly, the British, the French, and the Soviets, as well as some significant sectors of the American political elite, did not immediately sign on to the granting of legal process to defendants who stood accused of not only having attacked other countries without provocation and com- mitted grave violations of the laws and customs of war, but also of wholesale and systematic eradication of entire ethnic groups with unprecedented precision and on an unprecedented scale. They rather would have preferred the firing squad.��� Robert H. Jackson, former U.S. Attorney General, since 1941 U.S. Supreme Court Justice, and famed U.S. Chief Prosecutor at Nuremberg, was one of the most influential voices for a judicial, not a political, body dealing with the issue of how to properly react to the individual guilt vel non of those accused of responsibility for the Nazi atrocities.

Since Nuremberg, controversies have raged whether the IMT was an impartial tribunal or whether it constituted simple “victor’s justice,” whether the crimes the defendants were accused of were established after their commission of the acts (ex post facto), and whether other fair trial guarantees were sufficiently observed. In this brief overview, the Nuremberg law and procedure will first be presented as written

554 A prior plan to put Kaiser Wilhelm II of Germany on trial, “for a supreme offence against international morality and the sanctity of treaties,” articulated in Article 227 of the Ver- sailles Peace Treaty, never came to fruition as the former German emperor spent the rest of his days in exile in the Netherlands, which as a neutral country, refused his extradition. William A. Schabas, The UN International Criminal Tribunals 9 (2006).

555 For details on the struggle between the Allies and within the U.S., see the account by one of the participants of the Nuremberg trials, Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (1992). As papers from the British War Cabinet released only on January 1, 2006 show, British Prime Minister Winston Church- ill, in 1942, had advocated a policy of summary execution of leading Nazis. John Cross- land, Churchill: execute Hitler without trial, The Sunday Times, Jan. 1, 2006, available at http://www.timesonline.co.uk/article/0..2097-1965607.00html. At the 1943 Tehran Con- ference, Stalin proposed executing 50,000 to 1000,000 German staff officers. Churchill there opposed the “cold blooded execution of soldiers who fought for their country” as well as executions “for political purposes,” but suggested trials of war criminals where their crimes had been committed. Originally supportive of U.S. Treasury Secretary Hen- ry Morgenthau, Jr.’s Plan of severe economic sanctioning of post-War Germany, similar to the measures taken after World War I, Churchill and U.S. President Roosevelt aban- doned that plan in 1944. Also, the Soviet Union at that time, “announced a preference for a judicial process.” The plan for a trial of European axis war criminals was drafted by U.S. Secretary of War Henry L. Stimson. Upon President Roosevelt’s death in April 1945, President Truman gave strong support to the judicial process. Nuremberg Trials, at http://en.wikipedia.org (last accessed December 31, 2006).

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and, second, as applied; lastly, it will be looked at from the angle of the extent of its fair trial guarantees.

The law on the books

In pursuance of the August 8, 1945 agreement between the four Allied powers an “International Military Tribunal for the just and prompt trial and punishment of the major war criminals of the European Axis” – the so-called London Charter – was established.��� Its permanent seat was to be in Berlin, with the first trial to be held in Nuremberg, Germany.��� The Tribunal consisted of four members, one from each of the four Signatories.��� Decisions by the Tribunal were made by majority vote, with the President breaking a tie.���

The jurisdiction of the IMT encompassed individual responsibility for the follow- ing acts: (a) crimes against peace; (b) war crimes; and (c) crimes against humanity.��0 Detailed definitions were given of these crimes, including, e.g. for “crimes against peace,” inter alia, the “planning, preparation, initiation or waging of a war of aggres- sion … or participation in a common plan or conspiracy for the accomplishment of the foregoing,” and, as to “crimes against humanity,” inter alia, “murder, extermi- nation, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war…”��� Heads of State or other officials of the government were not immune from such individual responsibility;��� neither were those who acted pursuant to orders from their superiors.��� The IMT could also declare a group or organization of which an indicted individual was a member of a “criminal organization.”��� This declaration was to form the basis for later trials for membership in such organizations before national, military or occupation courts, in which “the criminal nature of the group or organization” was to be “considered proved and shall not be questioned.”��� Trials in absentia were allowed broadly if the person charged “has not been found or if the Tribunal, for any reason, finds it neces- sary in the interests of justice, to conduct the hearing in his absence.”���

Each Signatory appointed a Chief Prosecutor for the investigation and prosecu- tion of major war criminals, but all four Chief Prosecutors, as a committee acting by majority vote, had to agree upon a plan of work of each Chief Prosecutor and his

556 Charter of the International Military Tribunal, art. 1. 557 Id. art. 22. 558 Id. art. 2. The signatories included the U.S., the U.S.S.R., U.K. and France. 559 Id. art. 4(3). 560 Id. art. 6. 561 Id. 562 Id. art. 7. 563 Id. art. 8. Such superior orders could, however, be considered in mitigation of punish-

ment. Ibid. 564 Id. art. 9. 565 Id. art. 10. 566 Id. art. 12.

127Due Process in Peacetime: International Law

staff, settle the final designation of the major war criminals to be tried, approve the indictments and lodge them with the IMT, as well as draft the Tribunal’s rules of pro- cedure.��� Each individual Chief Prosecutor and his staff investigated, gathered and produced all necessary evidence, prepared the indictment, and acted as prosecutor at the trial in the cases assigned to him.���

One article of the Charter of the IMT was entitled “Fair Trial for Defendants.” This Article 16 included the following guarantees for the defendants:

(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial;

(b) During any preliminary examination or Trial of a Defendant he will have the right to give any explanation relevant to the charges made against him;

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution. ���

The Tribunal had the power to summon witnesses to the trial and put questions to them; to interrogate any Defendant; and require the production of evidence.��0 It was to “confine the Trial strictly to an expeditious hearing of the cases raised by the charg- es,” “take strict measures to prevent any action which will cause reasonable delay [sic], and rule out irrelevant issues and statements of any kind whatsoever,” and “deal summarily with any contumacy, imposing appropriate punishment, including exclu- sion of any Defendant or his Counsel from some or all further proceedings…”���

Importantly, “[t]he Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.”��� Also, it “may require to be informed of the nature of any evidence before it is entered so that it may rule upon the relevance thereof.”��� It “shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, includ-

567 Id. art. 14. 568 Id. art. 15. 569 Id. art. 16. 570 Id. art. 17. 571 Id. art. 18. 572 Id. art. 19. 573 Id. art. 20.

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ing the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of recordings and findings of military or other Tribunals of any of the United Nations.”���

The trial commenced with the indictment being read in court, then proceeding with the Defendant being asked whether he pleads “guilty” or “not guilty,” the pros- ecution making an opening statement, the Tribunal ruling on the admissibility of evidence submitted by the prosecution and the defense, an examination of the wit- nesses for the prosecution and the defense with possible rebuttal evidence by either, questioning by the Tribunal and interrogation and cross-examination by prosecu- tion and defense, respectively, the defense and prosecution addressing the court, the defendant making a final statement, and the Tribunal delivering the judgment and pronouncing the sentence.��� The decision was final; there was no appeal.���

The Rules of Procedure adopted by the IMT on October 29, 1945 detailed some of the protections outlined in the Charter. In Rule 2, for example, it stated that each defendant shall receive, within 30 days before trial, a copy of the indictment, the Charter, and any other documents lodged with the indictment as well as a statement of his right to the assistance of counsel, together with a list of counsel, and a copy of the rules of procedure.��� Defendants not in custody were to be notified of the indict- ment “in such form and manner as the Tribunal may prescribe,”��� as were members of groups and organizations the Tribunal had indicated its intention to declare a “criminal organization.”��� Each defendant had the right to conduct his own defense or to apply for particular counsel with the General Secretary of the IMT; if requested counsel was not to be found or available within ten days, the Tribunal would desig- nate counsel.��0 The defense could apply in writing to the Tribunal for the production of witnesses or documents, indicating facts proposed to be proved by such testimony or document and the reasons why such facts are relevant to the defense.��� The Tri- bunal, acting through its President during trial and most of the time also before trial, ruled on any motions, applications and other requests, including issues as to the admissibility of evidence.���

574 Id. art. 21. 575 Id. art. 24. 576 Id. art. 26. 577 International Military Court, Rules of Procedure, 29 October 1945, Rule 2(a). 578 Id. Rule 2(b). 579 Id. Rule 2(c). 580 Id. Rule 2(d). 581 Id. Rule 4(a). 582 Id. Rule 7.

129Due Process in Peacetime: International Law

The law in Action

The trial of 24 prominent leaders of Nazi Germany, selected to represent the “major war criminals of the European axis,”��� took place from November 20, 1945 to Octo- ber 1, 1946 at the Nuremberg Palace of Justice.��� It was the first, and the last, such trial, as the beginning Cold War put an end to such common inter-Allied endeavors. Trials of “lesser” war criminals proceeded subsequently until 1949 under Allied Con- trol Council Law No. 10 before courts called the U.S. Nuremberg Military Tribunals. Overall, some 200 German war crimes defendants were tried there, in addition to 1600 adjudicated through traditional channels of military justice.���

The IMT opened its proceedings on October 18, 1945 in Berlin under the presi- dency of the Soviet judge Nikitchenko. Indictments were entered against 24 indi- viduals listed as “major war criminals” and several groups or organizations to be de- clared “criminal organizations”: the Leadership Corps of the Nazi Party, the NSDAP; the Schutzstaffel (SS); the Sicherheitsdienst (SD); the Secret State Police (Gestapo); the Sturmabteilung (SA); the Third Reich’s Cabinet, and the General Staff and High Command of the German Armed Forces (OKW).���

The trial itself was conducted in Nuremberg. It resulted in the convictions of nine- teen defendants on October 1, 1946. The convictions ranged from participation in a common plan or conspiracy for the accomplishment of a crime against peace, to planning, initiating and waging wars of aggression and other crimes against peace, to war crimes and crimes against humanity. The sentences for those convicted ranged from death (Göring, Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Sauckel, Jodel, Seyß-Inquart and, in absentia, Bormann) to life imprison- ment (Heß, Funk and Raeder), to twenty years (von Schirach and Speer), fifteen years (von Neurath) and ten years of imprisonment (Dönitz); three defendants were ac- quitted (Schacht, von Papen and Fritzsche).��� The death sentences were carried out

583 Actually, the trial started with only 21 defendants present. Robert Ley had committed suicide on October 25, 1945; Gustav Krupp von Bohlen und Halbach’s trial had been post- poned indefinitely due to a serious health condition; and Martin Bormann was tried in absentia, only to be officially declared dead as of May 1 or 2, 1945 by a German court ten years later. Herbert R. Reginbogin & Christoph J.M. Safferling, Introduction – Lessons of Nuremberg: Returning to Courtroom 600 on the 60th Anniversary of the Nuremberg Trial against the major German War Criminals, in The Nuremberg Trials: Internation- al Criminal Law Since 1945 11 (Herbert R. Reginbogin & Christoph J.M. Safferling eds., 2006) (hereinafter The Nuremberg Trials).

584 While Berlin had been favored by the Soviet Union, Nuremberg was designated as the place of the first trial (Art. 22), due to its location in the U.S. zone of Germany, its large, and largely undamaged, Palace of Justice and adjacent prison, and its immediate past his- tory as host of impressive Nazi party rallies.

585 Nuremberg Trials, in www.wikipedia.com. 586 International Military Tribunal (Nuremberg), Judgment, Oct. 1, 1946, 41 Am. J. Int’l 172,

252 (1946). 587 Judgment, 41 Am. J. Int’l 172, 331-332 (1946); France et al. v. Göring et al., 22 IMT 203

(1946), 13 ILR 203; Süddeutsche Zeitung, Oct. 1, 1946, Special Edition, at 1. For fur- ther details, see http://www. justiz.bayern.de/gericht/olg/n/imt/.

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by hanging – as the British and Soviet judges opposed a French proposal to use the firing squad, standard for court-martial procedures, arguing that the military officers convicted had violated their military code and were thus not worthy of its rites.���

The Leadership Corps of the NSDAP, the SS, the SD, and the Gestapo were de- clared “criminal organizations,” while the Reich Cabinet, the OKW, the SA and the Reiter-SS were not.���

b. The IMT at Tokyo The Charter of the International Military Tribunal for the Far East of January 19, 1946, established the IMT at Tokyo. The Rules of Procedure of this court were promulgated on April 25, 1946. Similar to Germany, the unconditional surrender had not been de- clared by the Government of the Empire of Japan, but the Japanese Armed Forces.

The law on the books

The Charter of the Tokyo Tribunal closely parallels the Charter of the IMT at Nurem- berg. The eleven judges presiding over the Tribunal were representing eleven Allied powers winning the war over Japan.��0 Unlike in Nuremberg, however, the prosecu- tors did not operate by committee; while each country, as with the judges, provided one prosecutor, the prosecutorial team was led, and represented, by one Chief Pros- ecutor – former U.S. Assistant Attorney General Joseph B. Keenan.

The IMT at Tokyo was set up to try the leaders of the Empire of Japan for virtu- ally the same types of crimes committed during the war as stated and defined in the London Charter: Class A: crimes against peace; Class B: war crimes; and Class C: crimes against humanity. Procedurally, the Tokyo Tribunal operated very similarly to the Nuremberg Tribunal.���

The law in Action

The IMT for the Far East commenced its proceedings on May 3, 1946, and was ad- journed on November 12, 1948. It was presided over by Sir William Webb, Justice of the High Court of Australia. While Emperor Hirohito and Prince Asaka were not prosecuted, 28 defendants were originally tried. Two of them died of natural causes during the trial, and another one was removed following a nervous breakdown.

Seven defendants, mostly military leaders, but also a foreign minister and a war minister, were convicted of crimes against peace, war crimes and crimes against hu- manity. They were sentenced to death and hung on December 23, 1948. Sixteen more defendants were sentenced to life imprisonment. Three died in prison, while the oth- er thirteen were paroled in 1955. Another defendant was sentenced to 20 years and

588 Second World War: Events: Nuremberg Defendants, at http://www.worldwar-two.net/ac- ontecimentos/ 85/ (last visited on February 17, 2008).

589 Judgment, 41 Am. J. Int’l L. 172, 252-272 (1946). 590 Those powers included the U.S., the U.S.S.R., the U.K., France, the Republic of China, the

Netherlands, Canada, Australia, New Zealand, British India, and the Philippines. 591 Robert Cryer, An Introduction to International Criminal Law and Proce-

dure 96-100 (2007).

131Due Process in Peacetime: International Law

died in prison. The last defendant, another former foreign minister, was sentenced to 7 years in jail, but was paroled in 1950 and went on to serve as foreign minister again. ���

There was one dissenting opinion. The Indian judge, representing then British In- dia, at the Tokyo Tribunal, Radhabinod Pal, made the point of unequal justice: “If Japan is judged, the Allies should also be judged equally.” ���

Criticisms of victor’s justice��� and ex post facto concerns were raised against the IMT for the Far East as well. Also, an “American bias” was alleged, since the Chief Prosecutor was an American.���

c. Appraisal of both Tribunals Strictly reviewed under the focus of this inquiry, the guarantees of a fair trial, the International Military Tribunals at Nuremberg and Tokyo elicit the following com- ments:

It has been charged that these trials lacked legitimacy, because they constituted “victor’s justice,”��� i.e. they imposed a court, consisting of representatives of states who won a war, a court whose composition could not be challenged by the defen- dants, on the leaders of the defeated nation without their consent, using standards and procedures not used by the winning nations themselves to judge the conduct of their citizens. As to these “macro”-arguments, they merit some disentangling before we address procedural points.

First, as to the issue whether the IMT constituted one-sided “victor’s justice,” a significant counter-argument, one that has been advanced in the context of Nurem-

592 For details on this history, see Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trial (1987) and Timothy P. Maga, Judgment at Tokyo: The Japanese War Crimes Trials (2001). In addition to these high-profile defendants, 300,000 nationals of Japan were charged with Class B and C crimes, mostly on account of prisoner abuse.

593 Cryer, supra note 591, at 98, with further assessment. 594 Richard H. Minear, Victor’s Justice: The Tokyo War Crimes Trial (1971). 595 Solis Horowitz, The Tokyo Trial, Int’l Conciliation 473-584 (Nov. 1950). Interestingly,

though, the Tokyo Tribunal was seen as receiving far less support by the U.S. Govern- ment than the Nuremberg tribunal, as the American Chef Prosecutor Joseph Keenan held a much lower position than Robert H. Jackson, Chief U.S. Prosecutor at Nurem- berg.

596 U.S. Senator Robert Taft argued that “[t]he trial of the vanquished by the victors cannot be impartial, no matter how it is hedged about with the forms of justice.” Cited in Ray- mond M. Brown, The American Perspective on Nuremberg: A Case of Cascading Ironies, in The Nuremberg Trials, supra note 583, at 21, 24. Even more strongly, the Chief Jus- tice of the U.S. Supreme Court, Harlan Fiske Stone, objected to the IMT’s Chief Prosecu- tor’s actions: “Jackson is away conducting his high-grade lynching party in Nuremberg. I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.” Ibid., citing Graeme A. Barry, “The Gifted Judge”: An Analysis of the Judicial Career of Robert H. Jackson, 38 Alberta L. Rev. 880, 883 (2000).

132 Chapter II

berg, is that the political authority over Germany had been transferred after its un- conditional surrender to the Allied Powers and their Control Council.��� The Allies were thus entitled to punish violations of the laws of war through special tribunals, including the international ones here created. Justice also was not one-sided as the Allies themselves punished, through courts-martial and similar domestic military justice systems, violations of the laws of war by their own troops. Without institu- tions such as the Nuremberg tribunals, violations of the laws of war by the Germans would have been left unpunished. This argument well addresses the jurisdiction of the courts regarding war crimes; it may, however, provide less of an answer for the argument against the IMT’s jurisdiction over crimes against peace and crimes against humanity. Crimes against humanity, in particular, could have been committed under London Charter Article 6(c) “before or during the war,” expressly cutting the linkage to crimes limited to the situation of war.��� Still, such “new” crimes were arguably not committed by the winners of the war,��� and thus needed no prosecution, domesti- cally or internationally. In addition, they were so horrendous that substantive justice itself demanded the overriding of the purely theoretical imbalance argument.

The next argument presented is that the tribunals were not impartial since their members could not be challenged by the defendants.�00 This point, however, has been countered, quite effectively, with the observation that, even in ordinary criminal law, “a burglar cannot complain that he is being tried by a jury of honest citizens.”�0�

The next issue is whether the crimes the defendants were accused of were estab- lished after their commission of the acts in violation of a general principle of criminal law which prohibits ex post facto,�0� i.e. retroactive criminalization of previously legal conduct. The main argument was that international law of the time did not include

597 The counter-argument is, however, that only the German armed forces, not its govern- ment, surrendered unconditionally.

598 Even though empowered by the Charter to address crimes against humanity before the war, the IMT limited itself in its judgment to such crimes committed during the war.

599 The hesitation with which one could approach this issue stems, e.g., from the invasion by the Soviet Union, in concert with Germany, of the Baltic States committed under the Rib- bentrop-Molotov Non-Aggression Pact of August 23, 1939 (George Ginsburgs, Mos- cow’s Road to Nuremberg 129, 142 (1996)), which also had “left Hitler free to move against Poland” (Bradley F. Smith, Reaching Judgment at Nuremberg 105 (1977)). Michael J. Bazyler, The Role of the Soviet Union in the International Military Tribunal at Nuremberg, in The Nuremberg Trials, supra note 583, at 45, 49. See also Brown, supra note 596, at 27.

600 This argument receives some support from the fact that Soviet Judge Nikitchenko had presided over some of the most notorious of Stalin’s show trials of 1936-38. Bazyler, supra note 599, at 45.

601 A.L. Goodhart, The Legality of the Nuremberg Trials, 58 Juridical Rev. 1 (April 1946), cited in Bazyler, supra note 599, at 47.

602 William O. Douglas, U.S. Supreme Court Justice, has been quoted this way: “I thought at the time and still think that the Nuremberg trials were unprincipled. … Law was created ex post facto to suit the passion and clamor of the time.” H.K. Thompson, Jr. & Henry Strutz, Dönitz at Nuremberg.: A Reappraisal (1983).

133Due Process in Peacetime: International Law

an international crime other than piracy. The only reference to a “crime against hu- manity” in state practice prior to the London Charter occurred in 1915 when Britain, France and Russia issued a statement accusing Turkey of such offense in the Armenian genocide, without, however, attributing any specific meaning to it,�0� not to speak of defining any element of this crime. The prevailing counter-argument to the ex post facto point with respect to Nuremberg appears to be that German law of the time itself had prohibited the acts described as crimes against humanity or war crimes,�0� and that, in any event, the acts the defendants were accused of were so shocking to the conscience of every human being that their criminality had to be established on the basis of natural justice, transcending the positive justice system of any offending nation.�0� This is particularly true for the charge most susceptible to the ex post facto argument, the crime against peace.�0� As the British Chief Prosecutor in Nuremberg

603 Nuremberg Trials, in www.wikipedia.com. 604 Albin Eser, Das International Militärtribunal von Nürnberg aus deutscher Perspektive,

in The Nuremberg Trials, supra note 583, at 53, 55, referring to his predecessor (as Director of the Freiburg Max Planck Institute of Foreign and International Penal Law) Professor Hans-Heinrich Jescheck’s argument that these crimes were nothing but regular crimes under domestic criminal codes which had been politically motivated and carried out systematically.

605 Cf., e.g., Carl Schmitt’s characterization of these crimes as “extraordinary.” Ibid. 606 One of Chief Prosecutor Jackson’s assistants at Nuremberg, Professor Bernard Meltzer,

analyzed this point later this way: “The international formulations relied on by Justice Jackson were silent about individual responsibility for aggressive war. Indeed, such re- sponsibility was disclaimed during the confirmation discussions in the United States Senate of the Kellogg-Briand Pact, a pact on which Jackson heavily relied. Thus, Senator Borah, the chairman of the Senate Foreign Relations Committee, had declared that the pact was an appeal solely to the conscience of the world and that its breach was not to lead to any punitive consequences.” Cited in Brown, supra note 599, at 26. Even another assistant, Telford Taylor, concluded: “Arguments in support of punishing individuals ex post facto for violation of the crime against peace can be made, but, if conducted on a plane devoid of political and emotional factors will be won by the defense. But in 1945 those very factors were overwhelming. Peoples whose nations had been attacked and dismembered without warning wanted legal retribution whether or not this was a ‘first time.’ The inclusion of the crime against peace vastly enhanced the world’s interest in and support to the trials at Nuremberg.” Telford Taylor, The Anatomy of the Nurem- berg Trials, supra note 555, at 629. See also David Cesarani, The International Military Tribunal at Nuremberg: British Perspectives, in The Nuremberg Trials, supra note 583, at 31, 37, citing The Rt Hon Lord Hankey, Politics, Trials and Errors 10-27, 50-65, 125-30 (1950). “To Lord Hankey, a minister in Churchill’s war cabinet in 1940-1, the IMT was a travesty of justice. War, he maintained, is an instrument of policy and not a crime. If it was a crime, then the countries sitting in judgment were equally guilty of aggressive war at one time or another over the previous six years. In this respect, alone, the participation of the USSR made a mockery of the proceedings and gave them every appearance of ‘victor’s justice.’” Interestingly, although the IMT convicted twelve defend- ants of the crime against peace, only defendants convicted of war crimes and crimes against humanity were executed, with the noted exception of Julius Streicher. Brown, supra note 596, at 25, 26. The somewhat questionable nature of the international “crime

134 Chapter II

argued: “If this be an innovation, it is an innovation long overdue – a desirable and beneficent innovation fully consistent with common sense and with the abiding pur- poses of the law of nations.”�0� Also, the crime of conspiracy and individual criminal responsibility for membership in criminal organizations led to criticism, particularly from judges and scholars trained in the civil law tradition.�0�

The positive elements of the Nuremberg and Tokyo Charter and Rules included the fair notice given to the defendants of the charges and supporting evidence, as well as their right to present witnesses and other evidence of their own – subject to the approval of the Tribunal regarding their relevancy – as well as the defendants’ right to cross-examine witnesses for the prosecution. The other praiseworthy feature includ- ed the right to the assistance of counsel, albeit from a list composed by the Tribunal.

What is to be noted is the absence, in either Charter or Rules, of any provision limiting pre-trial investigations and arrests, explained partly by the fact that the de- fendants were already either in custody or still on the loose, never to be found (e.g. Martin Bormann), partly by the fact of the fog of war. Trials in absentia were very loosely allowed.

The conduct of the trial itself resembled very much a continental, German pro- ceeding – with the Tribunal interrogating witnesses and the counsels for prosecution and defense performing additional questioning. The Charter dedicated itself to an “expeditious” procedure, recalling, at least in form, the right to a speedy and public trial of time-honored criminal justice systems.

Where the most problematic features came in was in the treatment of the evi- dence by the Tribunal: – First, the Tribunal was to admit “any evidence it deems to be of probative value,”

and was “not bound by technical rules of evidence” (Article 19). This mandate can be seen as ignoring the fact that the “technical” rules of evidence are meant to rule out notoriously unreliable testimony such as hearsay, or sanction illegal and abusive conduct and techniques by the authorities in obtaining evidence (through the exclusionary rule or the fruit of the poisonous tree doctrine).

– Second, the Charter mandated, as evidence immunized from any questioning by the Tribunal or the parties, “official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of recordings

against peace” may also be seen as reflected in the impossibility, to date, to find agree- ment to define “aggression” according to Article 5(2) of the Rome Statute of the Interna- tional Criminal Court.

607 Cited by Eser, supra note 604, at 56. 608 During the trial’s deliberations, the French judge, Henri Donnedieu de Vabres, expressed

his opinion that the charge of conspiracy was ex post facto, and might be hurtful to the acceptance of the Tribunal’s findings. Bradley F. Smith, Reaching Judgment at Nu- remberg 122 (1977), cited in Brown, supra note 596, at 25 (mentioning also Soviet con- cerns during the Charter negotiations). For a broader statement of these concerns, see Hervé Ascensio, The French Perspective, in The Nuremberg Trials, supra note 583, at 39, 40-42.

135Due Process in Peacetime: International Law

and findings of military or other Tribunals of any of the United Nations” (Arti- cle 21). The validity of any statements of fact contained in any such documents therefore could not be tested in open court.

– Lastly, the Charter did not demand the presumption of innocence. There was no provision of a right to appeal, and no habeas corpus or any similar relief.

The general soundness of the judgment itself, the enormity of the crimes adjudicated, and the bold innovativeness of the institution and its mandate have left Nuremberg as the first beachhead of international criminal justice. Its precedents have been clas- sified as “canonical”�0� – dwarfing the procedural shortcomings we may perceive looking back. As we move along the line of time, those shortcomings were addressed in much more satisfying ways in the ad hoc international criminal tribunals of the 1990s and in the Statute of Rome.

b. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda

Horrors of unprecedented magnitude in the Balkans, during the disintegration of the former Yugoslavia, and the African postcolonial state of Rwanda, both motivated by ethnic conflict, led to cries for individual international criminal accountability for those responsible. The UN Security Council responded, with the creation, on May 25, 1993, of the International Criminal Tribunal for the former Yugoslavia (ICTY),��0 and, on November 8, 1994, of the International Criminal Tribunal for Rwanda (ICTR).��� Due to their creation by decision of the Security Council, they may be called the first truly international criminal tribunals.���

609 Particularly for international criminal courts of our day. Allison Marston Danner & Jen- ny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Calif. L. Rev. 75, 118 (2005).

610 UN Security Council Res. 827, adopted without vote by general agreement. The full name of the tribunal is “The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.” For details on its origins, see Kelly Dawn Askin, The ICTY: An Introduction to its Origins, Rules and Jurisprudence, in Essays on ICTY Pro- cedure and Evidence in Honour of Gabrielle Kirk McDonald 13 (Richard May et al. eds., 2001) (hereinafter Essays on ICTY Procedure).

611 UN Security Council Res. 955, with Rwanda opposed and China abstaining. The full name of the Tribunal is “The International Criminal Tribunal for the Prosecution of Per- sons Responsible for Genocide and Other Serious Violations of International Humani- tarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994.”

612 William A. Schabas, The UN International Criminal Tribunals 8 (2006), with reference to Theodor Meron, War Crimes in Yugoslavia and the Development of Inter- national Law, 88 Am. J. Int’l L. 78, 79 (1994). B.V.A. Röling, a Dutch judge on the Tokyo IMT, had called the Nuremberg and Tokyo IMTs “multinational,” since the powers es- tablishing them could have exercised jurisdiction individually – they had “done together

136 Chapter II

The decision to create those tribunals has been challenged as ultra vires the Se- curity Council, as such a measure is not one of those expressly mentioned in Article 41 or other provisions of Chapter VII of the UN Charter. But the International Court of Justice had previously issued an opinion that confirmed the power of UN organs to delegate their powers to subsidiary powers, including tribunals,��� and the Inter- national Court of Justice, in the Lockerbie case,��� has refused to review the exercise of the Security Council’s powers under Chapter VII since, under Article 25 of the UN Charter, the Security Council has the “primary responsibility” regarding issues of international peace and security.

Security Council Resolution 827, in its annex, promulgated the Statute of the ICTY; similarly, Security Council Resolution 955, in its annex, promulgated the Stat- ute of the ICTR. Both statutes exhibit broad similarities in structure, content and procedure. In particular, the definition of the crimes under their jurisdiction is very similar. The ICTY has jurisdiction over grave breaches of the 1949 Geneva Conven- tions,��� violations of the laws and customs of war,��� genocide,��� and crimes against humanity��� – the ICTR over genocide,��� crimes against humanity,��0 and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.��� Even though the ICTY and the ICTR have concurrent jurisdiction with national courts over those crimes, the international tribunals have primacy over national courts.��� This determination allows the international tribunal at any stage of the pro- ceeding to ask national courts to defer to the competence of the ICTY/ICTR.��� Both the ICTY and the ICTR have chambers (or judges), an office of the registry, and an office of the prosecutor. In the beginning, they even shared the same prosecutor���

what any one of them might have done singly.” B.V.A. Röling, The Law of War and the National Jurisdiction since 1945, in Recueil des Cours 1960-II, at 356.

613 Effect of Awards of Compensation Made by the United Nations Administrative Tribunals (Advisory Opinion), 1954 I.C.J. 47, 21 ILR 310, 312 (taking into account Article 28 of the UN Charter).

614 Case Concerning Questions of Interpretation and Application of the 1971 Montreal Con- vention Arising from the Aerial Incident at Lockerbie (Libya v. U.K.; Libya v. U.S.), Provi- sional Measures, 1992 I.C.J. 3, 114 (Orders of April 14).

615 ICTY Statute, art. 2. 616 Id. art. 3. 617 Id. art. 4. 618 Id. art. 5. 619 ICTR Statute, art. 2. 620 Id. art. 3. 621 Id. art. 4. 622 ICTY Statute, art. 9; ICTR Statute, art. 8. 623 Ibid. 624 Subsequently, the Security Council changed this arrangement to provide for separate

prosecutors. UN Doc. S/RES/1503 (2003), para. 8.

137Due Process in Peacetime: International Law

and appeals body.��� Today, the ICTY consists of three Trial Chambers and one Ap- peals Chamber, the Prosecutor, and a Registry serving both the Chambers and the Prosecutor.��� The ICTY Chambers are composed of sixteen permanent and up to nine ad litem judges��� elected by the General Assembly from a list submitted by the Security Council.��� The ICTR also consists of three Trial Chambers and one Appeals Chamber as well as the Prosecutor and the Registry.���

The Statutes of both the ICTY and the ICTR are rather sparse on rules of proce- dure and evidence. The Statutes direct the Trial Chambers to make sure that trials are “fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.”��0 The Statutes leave elabora- tion of those rules to the judges of the Tribunal; they “shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and ap- peals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.”���

By necessity, because of the diverse professional backgrounds of the judges and lawyers involved, the Tribunals’ procedure had to strike a compromise between the main legal traditions around the globe, i.e. those of the common law and the civil law. In the field of criminal law, the main difference was thus between the common law’s adversarial process, where justice ideally emerges through the struggle between prosecution and defense, and the civil law’s inquisitorial model, where the judge has the ultimate responsibility to search for the truth. Due to the prevalence of American lawyers on the ground,��� and an early draft submitted by the American Bar Associa-

625 More precisely, there were two separate Appeals Chambers, but they had the same mem- bership. Compare ICTR Statute, art. 12(2). The reasons for this were economies of scale and the desire for consistency in appellate decisions. Schabas, supra note 612, at 593. More recently, the Security Council created a more autonomous Appeals Chamber for the ICTR. UN Doc. S/RES/1329 (2000), paras. 2-3. For details, see Schabas, at 594.

626 ICTY Statute, art. 11. 627 Id. art 12. 628 Id. art.14. 629 ICTR Statute, art. 11. 630 ICTY Statute, art. 20; ICTR Statute, art. 19. 631 ICTY Statute, art. 15; ICTR Statute, art. 14. 632 “The International Criminal Tribunal for the former Yugoslavia was originally staffed by

twenty-five US attorneys who donated their time for a couple of years. Many European countries were outraged by the large number of Americans and felt that the United States had basically hijacked the institution culturally. And it had, to a large extent. It was a common-law jurisdiction, and the way of doing business was very North American be- cause the Americans were there from day one.” Louise Arbour, Crimes against Women under International Law, 21 Berkeley J. Int’l L. 196, 209 (2003).

138 Chapter II

tion,��� fervently promoted by the Judge from the U.S., Gabrielle Kirk McDonald,��� the Rules of Procedure and Evidence as published first in 1994��� had a distinctly American, i.e. adversarial flavor. It is more of a hybrid now. Thus, the adversarial process was instituted as the starting point; still, there are inquisitorial features, e.g. the judges retained their right to interrogate witnesses, and to even call their own witnesses or ask for documents.��� They cannot issue subpoenas to States��� or in- ternational organizations,��� but they can make binding orders to States to produce certain pieces of evidence,��� who then, internally, can subpoena those witnesses or documents or other evidence. Also, although direct evidence, particularly live testi-

633 Schabas, supra note 612, at 410. 634 Judge McDonald later told an American journalist: “I guess I was playing the typical

American role – we know it all, we control it all.” Judging Tadić, The American Law- yer, Sept. 1995, at 63, cited in Schabas, supra note 612, at 85. That attitude must have changed, since Judge McDonald was later elected President of the ICTY and her friends and colleagues at the Tribunal edited a book titled Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, supra note 610. Her predeces- sor as President, Judge Antonio Cassese, said of her: “She has shown great competence, integrity and impartiality. She has demonstrated admirable equanimity and a deep sense of humanity. … Judge McDonald represents to me the best that America can offer: she is straightforward, she is direct, she is intelligent and unstintingly hardworking.” Cited in Richard May, Gabrielle Kirk McDonald: A Biographical Note, in Essays on ICTY Pro- cedure 3, 6-7.

635 International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and Evi- dence, U.N. Doc. IT/32/Rev.38 (2006), entered into force 14 March 1994, last amended 30 May 2006 (hereinafter ICTY RPE). The ICTR’s Rules of Procedures and Evidence, entered into force 29 June 1995, last amended 10 November 2006 (hereinafter ICTR RPE) initially copied the ICTY’s, but now they differ in significant respects. Schabas, supra note 612, at 85.

636 ICTY RPE Rule 98: “A Trial Chamber may order either party to produce additional evi- dence. It may proprio motu summon witnesses and order their attendance.” Virtually identical: ICTR RPE Rule 98.

637 Blaškić (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II 0f 18 July 1997, 29 October 1997, para. 25.

638 Kovačević (IT-97-24-PT), Decision Refusing Defence Motion for Subpoena, 23 June 1998.

639 ICTY Statute, art. 29(2); ICTR Statute, art. 28(2): States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest and detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal.

139Due Process in Peacetime: International Law

mony, in trial is preferred,��0 alternative evidence such as hearsay is not excluded,��� although its weight in the decision-making process is diminished.���

This procedure and the exact delineation of powers between the judge and the lawyers remain still subject to constant struggles between the bench and, mostly the defense, which lead to lengthy delays in trials. These struggles are exacerbated when judges from the civil law tradition clash with defense counsel from the common law tradition. Both are convinced of the rightness of their positions, since they have been socialized in their profession in their domestic legal contexts.��� Only when interna- tional criminal law practice becomes a significant practice field of its own will the rules be clear, as a new code of procedure derived from a sui generis amalgamation of features of both common law and civil law, with a dose of innovations due to the international nature of the process. Many of these rules and their refinements will have been formulated by the ICTY and the ICTR when they complete their trials, as envisioned by 2010.���

It is the responsibility of the Prosecutor to ex officio and independently investigate and prosecute persons responsible for offenses under the jurisdiction of the ICTY.��� Upon a “determination that a prima facie case exists,” he or she “shall prepare an indictment containing a concise statement of the facts and the crime or crimes with

640 Richard May & Marieke Wierda, Evidence before the ICTY, in Essays on ICTY Proce- dure, supra note 610, at 250, 253. Significantly, though, original Rule 90(1) (“Witnesses shall, in principle, be heard directly by the Chambers.”), which May and Wierda refer to in their statement, is no longer part of the ICTY RPE of 2006.

641 May & Wierda, id., at 257. See generally Gideon Boas, Admissibility of Evidence under the Rules of Procedure and Evidence of the ICTY: Development of the “Flexibility Principle,” in Essays on ICTY Procedure, supra note 610, at 263.

642 The Appeals Chamber clarified in 1999: “It is well settled in the practice of the Tribunal that hearsay evidence is admissible. … The fact that the evidence is hearsay does not nec- essarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which sur- round hearsay evidence.” Aleksovski, (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15. Compare Boas, id., at 271 (“the Chambers of the Tribunal will admit hearsay evidence on the basis that the weight to be attributed to it would obviously be less than the weight attributed to direct testimony of events witnessed first-hand”); Almiro Rodrigues & Cécile Tournaye, Hearsay Evidence, in Essays on ICTY Procedure, supra note 610, at 291 (“a hearsay statement should never be given such a weight as to be the only evidence relied upon to convict an accused”).

643 The tribunals have thus been called a “virtual laboratory of comparative criminal law.” Schabas, supra note 612, at 410.

644 The sunset provisions imposed by the Security Council may endanger an orderly and complete fulfillment of the ICTY’s task. For details on the “completion strategy,” see Schabas, supra note 612, at 40-43.

645 ICTY Statute, art. 16; ICTR Statute, art. 15.

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which the accused is charged under the Statute.”��� This indictment is then reviewed by a judge of the competent Trial Chamber.��� Upon his or her confirmation of the indictment, the judge may, “at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.”��� Plea bargains, a staple of the common law, but alien to most civil law jurisdictions, are now formally available,��� and account for more than one third of all convictions before the ICTY.��0 Still, they remain highly contested.��� Obligations of the Prosecutor and the Defense to disclose evidence to each other before and during trial, either mutually or unilaterally, are of a high intensity and degree.���

The right to defense counsel,��� assigned to an accused without sufficient means to pay, is assured throughout all phases of the proceedings. This is particularly relevant in the pre-trial stage.��� In fact, where the ICTY and the ICTR have gone even beyond international human rights law it is with respect to the treatment of suspects. Inter-

646 ICTY Statute, art. 18(4); ICTR Statute, art. 17(4). On the complex legal requirements for issuing a proper indictment, see Michael J. Keegan & Daryl A. Mundis, Legal Require- ments for Indictments, in Essays on ICTY Procedure, supra note 610, at 123.

647 ICTY Statute, art. 19(1); ICTR Statute, art. 18(1). Compare David Hunt, The Meaning of a “prima facie Case” for the Purposes of Confirmation, in Essays on ICTY Procedure, supra note 610, at 137.

648 ICTY Statute, art. 19(2); ICTR Statute, art. 18(2). 649 ICTY RPE Rule 62bis, added on November 12, 1997, and Rule 62ter, adopted on Decem-

ber 13, 2001. 650 Ralph Henham & Mark Drumbl, Plea Bargaining at the International Criminal Tribunal

for the Former Yugoslavia, 16 Crim. L.F. 49 (2005), in Schabas, supra note 612, at 426. At the ICTR, plea bargaining was much less successful, cf. Schabas, ibid.

651 For a special pleading against their use, see Michael Bohlander, Plea-Bargaining before the ICTY, in Essays on ICTY Procedure, supra note 610, at 151. See also Claude Jorda & Jérôme de Hemptinne, Un Nouveau Statut pour l’Accusé dans la Procédure du Tribu- nal Pénal International pour l’ex-Yougoslavie, in Essays on ICTY Procedure, supra note 610, at 215.

652 ICTY RPE Rules 66-68; ICTR RPE Rules 66-68. For details, see Schabas, supra note 612, at 398-403; Renee Pruitt, Discovery: Mutual Disclosure, Unilateral Disclosure and Non- Disclosure under the Rules of Procedure and Evidence, in Essays on ICTY Procedure, supra note 610, at 305; Mark B. Harmon & Magdalini Karagiannakis, The Disclosure of Exculpatory Material by the Prosecution to the Defence under Rule 68 of the ICTY Rules, in Essays on ICTY Procedure, supra note 610, at 315.

653 For details, see John E. Ackerman, Assignment of Defence Counsel at the ICTY, in Essays on ICTY Procedure, supra note 610, at 168; Michael Greaves, The Right to Counsel before the ICTY and the ICTR for Indigent Suspects: An Unfettered Right?, in Essays on ICTY Procedure, supra note 610, at 177; Toma Fila, The ICTY from the Perspective of Defence Counsel from the Former Yugoslavia: My Point of View, in Essays on ICTY Pro- cedure, supra note 610, at 187.

654 ICTY Statute, art. 18(3); ICTR Statute, art. 17(3). For implementation, see ICTY RPE Rules 42, 44 and 45 as well as ICTR RPE Rules 42, 44 and 45.

141Due Process in Peacetime: International Law

national human rights law would prohibit certain forms of ill-treatment in detention, but remain relatively silent on procedural pre-trial rights. The Rules of Procedure and Evidence for both the ICTY and the ICTR formulate substantially broader rights. Rule 42 of the ICTY RPE��� accords this catalog of rights during investigation:

(A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which the Prosecutor shall inform the suspect prior to questioning, in a language the suspect understands: (i) the right to be assisted by counsel of the suspect’s choice or to be assigned legal

assistance without payment if the suspect does not have sufficient means to pay for it;

(ii) the right to have the free assistance of an interpreter if the suspect cannot un- derstand or speak the language to be used for questioning; and

(iii) the right to remain silent, and to be cautioned that any statement the suspect makes shall be recorded and may be used in evidence.

(B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived the right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.

As far as the trial is concerned, the Statute not only mandates that trials be “fair and expeditious,”��� but that they respect the fundamental rights of the accused. The right of the accused to an expeditious trial has faced many difficulties in its implementa- tion, due to the complexity of the cases, both substantively and procedurally, as well as the conduct of the accused and the authorities. ��� The fundamental rights of the accused are catalogued in ICTY Statute Article 21���:

1. All persons shall be equal before the International Tribunal. 2. In the determination of charges against him, the accused shall be entitled to a fair and

public hearing, subject to article 22 of the Statute. 3. The accused shall be presumed innocent until proved guilty according to the provi-

sions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Stat-

ute, the accused shall be entitled to the following minimum guarantees, in full equal- ity: (a) to be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defence and to

communicate with counsel of his own choosing;

655 ICTY RPE Rule 42; ICTR RPE Rule 42 is virtually identical. 656 ICTY Statute, art. 20; ICTR Statute, art. 19. 657 Hafida Lahiouel, The Right of the Accused to an Expeditious Trial, in Essays on ICTY

Procedure, supra note 610, at 197. 658 ICTY Statute, art. 21; ICTR Statute, art. 20.

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(c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal as-

sistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the at- tendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f ) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;

(g) not to be compelled to testify against himself or to confess guilt.

This listing is a slightly modified rendition of Article 14 of the ICCPR, a provision that has been called the “gold standard” of the right to a fair trial in international hu- man rights law.��� What is lacking in Article 21 of the Statute of the ICTY is Article 14 ICCPR’s guarantee of a trial before “a competent, independent and impartial tribunal established by law.” Obviously, an ad hoc tribunal cannot fulfill all of these require- ments. Still, the ICTY Statute requires that the judges “shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices.”��0 The Rules of Procedure and Evidence also require disqualification in cases of judicial lack of im- partiality,��� i.e. actual bias or unacceptable appearance of bias.���

659 Schabas, supra note 612, at 501-02. While these guarantees are tailored after the IC- CPR, the ICTY Trial Chamber had grappled with the issue of how much weight the ICTY should accord the interpretation of the fair trial guarantees by judicial and quasi- judicial human rights bodies. The Trial Chamber found the interpretation of the other international judicial bodies to be of “limited relevance” since such interpretations were based on different considerations: regarding the issue at hand, neither the ICCPR nor the ECHR had as primary considerations the protection of victims and witnesses in their cases involving fair trial guarantees. See Roza Pati, Fair Trial Standards under Human Rights Treaty Law and the ICTY: A Process of Cross-Fertilization?, in ICTY: Towards a Fair Trial? 147 (Thomas Kruessmann ed., 2008).

660 ICTY Statute, art. 13(1). According to this provision, in filling these positions the experi- ence of the judges in “criminal law, international law, including international humanitar- ian law and human rights law” is to be taken into account. Interestingly, in the practice of the ICTY the judges with specifically criminal law background tend to be viewed, at least by defense counsel, as being more demanding in the circumscription of the elements of a crime, i.e. “strict constructionist,” thus, in effect, more pro-defendant, while judges with human rights background tend to be perceived as having a broader approach to account- ability and thus less of a focus on the narrow definition of a crime, resulting, generally, in an outcome less favorable to the defendant.

661 ICTY RPE Rule 15(A); ICTR RPE, Rule 15(A). 662 Furundžija (IT-95-17/1-A), Judgment, 21 July 2000, para. 189.

143Due Process in Peacetime: International Law

It has been stated that the ICTY in practice has not always been “exemplary” in living up to the gold standard of a fair trial: in one of its first rulings, one possibly “unavoidable under the circumstances,” two judges of a Trial Chamber, dealing with the issue of authorizing anonymous testimony, stated that “[t]he International Tribu- nal is, in certain respects, comparable to a military tribunal, which often has limited rights of due process.”��� But, generally, the ICTY has abided by the rights granted under the Statute, i.e. the right to equality before the law, the right to a fair and public hearing, the presumption of innocence, the right to be informed of the charge, the right to a trial without undue delay, the right to be present at trial, the right to coun- sel, the right to call and examine witnesses, the right to an interpreter, the right to remain silent and the right to appeal.���

Rule 73(D) also allows for preliminary motions by the accused based on “abuse of process,” defined by the ICTR Appeals Chamber in reliance on the English House of Lords’ jurisprudence as a discretionary doctrine “by which Judges may decline to exercise the court’s jurisdiction in cases where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity.”��� None of the defendants invoking this doctrine proved to be, however, ultimately successful.���

The Tribunals have added to those rights under the Statute and Rules the right to equality of arms between Prosecution and Defense, arguing that “under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts. This principle means that the Prosecution and the Defence must be equal before the Trial Chamber. It follows that the Chamber shall provide every prac- ticable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.”��� The ICTY Appeals Cham- ber affirmed that minimally “a fair trial must entitle the accused to adequate time and facilities for his or her defence” under conditions that do not place him or her at a

663 Tadić (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 28, cited in Schabas, supra note 612, at 503.

664 For details on pertinent ICTY jurisprudence, see Schabas, supra note 612, at 511-535. 665 Barayagwiza, (ICTR-97-19-AR72), Decision, 3 November 1999, para. 74 666 Barayagwiza, (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review or Recon-

sideration), 31 March 2000; Milošević (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 48; Dragan Nikolić (IT-94-2-AR73), Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, paras. 30-32; see also discussion in Schabas, supra note 612, at 539-542.

667 Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 52. This principle does not necessarily mean, however, that Prosecution and Defense are assured material equality in the sense of possessing the same financial and/or personal resources. Kayishema et al. (ICTR-95- 1-A), Judgment (Reasons), 1 June 2001, paras. 63-71; Milutinović et al. (IT-99-37-AR73.2), Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003; Schabas, supra note 612, at 514.

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substantial disadvantage in relation to his or her opponent.��� Also, “the concept of equality of arms could be exemplified having regard to the right to call witnesses as between the prosecution and the defence, as well as the duty of the Prosecution to disclose relevant material to the Defence.”���

The right to habeas corpus as a remedy for challenging the legality of detention is nowhere expressly mentioned in the Statute or the Rules. Still, in line with many human rights instruments, including Article 9(4) of the ICCPR, the ICTR Appeals Chamber has stated that “the notion that a detained individual shall have recourse to an independent judicial officer for review of the detaining authority’s acts is well- established by the Statute and Rules. Moreover, this is a fundamental right and is enshrined in international human rights norms.”��0

It can be safely concluded that the ad hoc tribunals created by the UN Security Council have contributed immensely, in their statutory mandate, their rules and their case law, to the development and legal entrenchment of transnational concepts of due process through all phases of a criminal proceeding. Limited, in their authority to decide, to their particular universe of adjudicable facts, they have fashioned, and prescriptively fleshed out, a model regime for what many thought would never come to pass: an International Criminal Court principally unfettered by jurisdictional boundaries of time and space.

c. The International Criminal Court The idea of a permanent international criminal court arose practically alongside the establishment of the International Military Tribunals of Nuremberg and Tokyo. It seemed to be the perfect answer to the claim that those Tribunals constituted nothing but “victor’s justice.” The international community of states was, however, reluctant to buy into such revolutionary restriction on its sovereign leaders, as intellectually and morally compelling as it appeared. The 1948 Genocide Convention included a refer- ence to a prospective international criminal court,��� but a cautious world community proceeded with finalizing the Convention without establishing and implementing

668 Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 47; Kordić et al. (IT-95-14/2-A), Judg- ment, 17 December 2004, para. 175. For a general discussion of the impact of the ICTY’s case law on procedural issues, see Roza Pati, Fair Trial Standards under Human Rights Treaty Law and the ICTY: A Process of Cross-Fertilization?, supra note 659.

669 Brdjanin and Talić (IT-99-36-PT), Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23 May 2002. See also Krajisnik and Plavsić (IT-00-39 and 40-PT), Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter, 66(B) and 67(C), 1 August 2001.

670 Barayagwiza, (ICTR-97-19-AR72), Decision, 3 November 1999, para. 88; cf. Milošević (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, para. 38.

671 Convention on the Prevention and Punishment of the Crime of Genocide, UN GA Res. 260(III)A, 9 December 1948, 78 U.N.T.S. 277, art. VI: “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” (emphasis added).

145Due Process in Peacetime: International Law

this sanctioning mechanism, leaving States parties with the duty to either extradite or adjudicate alleged offenders (aut dedere aut judicare; Articles VI and VII) and a duty to prevent such conduct (Article I) as well as not to commit genocide themselves, as clarified by the ICJ in its Genocide decision of February 26, 2007.��� Still, the item on how to define and combat offenses against the peace and security of humankind lingered on the agenda of the UN International Law Commission (ILC) since the late 1940s��� – to be frozen for the many years of the Cold War which worked to seem- ingly end the dreams of a just world order of the immediate postwar period. After the end of the Cold War, however, like Phoenix from the Ashes, the idea of a permanent international criminal court war reemerged on the international legislative agenda – strangely enough, through an initiative of Trinidad and Tobago, a state who was con- cerned about combating drug trafficking as an international offense.��� In 1994, the International Law Commission submitted its final draft statute for an international criminal court to the General Assembly,��� and added its final draft code of crimes against the peace and security of mankind in 1996.��� Over the next two years, a Pre- paratory Committee composed of representatives of states, international organiza- tions and NGOs substantially reworked these drafts,��� and on the basis of its own final draft,��� in the summer of 1998, a Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was convened in Rome. After long and protracted discussions, the “Statute of Rome Establishing an International Criminal Court”��� was adopted on July 17, 1998, by a vote of 120 in favor, 21 absten-

672 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, 2007 I.C.J. 58-67, paras. 155-179.

673 Besides the General Assembly mandate pursuant to Article VI of the Genocide Conven- tion (G.A. Res. 216 B (III): Study by the International Law Commission of the Question of an International Criminal Jurisdiction), the ILC was charged to elaborate a “Code of Crimes Against the Peace and Security of Mankind,” a draft of which was actually pre- sented in 1954. D.H.N. Johnson, Draft Code of Offenses Against the Peace and Security of Mankind, 4 Int’l & Comp. L.Q. 445 (1955). Asked by the General Assembly in 1981 to revive its work on the code, a substantially revised version of the 1954 draft code was provisionally adopted by the ILC in 1991. William A. Schabas, An Introduction to the International Criminal Court 9-10 (2d ed. 2004) (hereinafter Schabas, ICC).

674 In 1989, Trinidad and Tobago initiated General Assembly Resolution 44/89 which direct- ed the ILC to consider the subject of an international criminal court within the context of its work on the draft code of crimes. Schabas, ICC, supra note 673, at 9.

675 James Crawford, The ILC’s Draft Statute for an International Criminal Tribunal, 88 Am. J. Int’l L. 140 (1994); James Crawford, The ILC Adopts a Statute for an International Criminal Court, 89 Am. J. Int’l L. 404 (1995).

676 Schabas, ICC, supra note 673, at 10. 677 M. Cherif Bassiouni, Observations Concerning the 1997-98 Preparatory Committee’s

Work, 25 Denver J. Int’l L. & Pol’y 397 (1997). 678 U.N. Doc. A/CONF.183/2/Add.1. 679 U.N. Doc. A/CONF.183/9, 17 July 1998 (hereinafter ICC Statute).

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tions and 7 votes against (including the U.S., Israel and China).��0 The Final Act of the Conference��� also provided for the establishment of a Preparatory Commission by the General Assembly, which was to draft the ICC’s Rules of Procedure and Evidence as well as the Elements of Crimes.

Surprisingly fast, the ICC Statute entered into force on July 1, 2002, the first day of the month after the 60th day following the deposit of the 60th instrument of ratifica- tion, acceptance, approval or accession as foreseen in its Article 126.��� The Assembly of States Parties was convened in September 2002 formally approved the 2000 drafts of the Preparatory Commission’s Elements of Crimes��� and the Rules of Procedure and Evidence.��� The election of judges was completed by February 2003.��� Philippe Kirsch, who had presided over the Rome Conference and chaired the sessions of the Preparatory Commission, was elected President of the Court, and the judges took of- fice on March 11, 2003.��� The first Chief Prosecutor of the ICC, Luis Moreno Ocam- po was elected in April 2003.��� The Court was ready to start its work.

Structurally, the ICC is an independent international organization, formally sepa- rate from the UN, and composed of four organs: the Presidency, the Divisions (Pre- Trial Division, Trial Division and Appeals Division), the Office of the Prosecutor and the Registry.��� There are eighteen judges, who need to be of “high moral character, impartiality and integrity,” eligible for appointment to the highest judicial offices in their home countries. They must be experts in either criminal law or international law, particularly international humanitarian and human rights law.��� They are elected for staggered terms of nine years, and they are generally not eligible for reelection.��0

The Statute of the International Criminal Court institutes a permanent court in order to bring to trial persons accused for the most serious international crimes, such as genocide, crimes against humanity and war crimes, in cases when a national legal system has failed to do so. These crimes delimit its subject-matter jurisdiction, as outlined in Articles 5-8 of the Statute. Details about the “elements” of the crimes were added as mentioned above, in order to bring more specificity to the crimes listed in the Statute. In reaction to the sometimes liberal construction of crimes in the

680 Schabas, ICC, supra note 673, at 18. 681 U.N. Doc. A/CONF.183/10. 682 In fact, the United Nations organized a ceremony of depositing the instruments of ratifi-

cation for ten states the same day, April 11, 2002, in order for all of them to reach the sixty states mark for entry into force of the Statute simultaneously. Schabas, ICC, supra note 673, at 20.

683 Text in Schabas, ICC, supra note 673, at 279 et seq. 684 Text in Schabas, ICC, supra note 673, at 322 et seq. 685 Schabas, ICC, supra note 673, at 20-21. 686 Id. at 178. 687 Id. at 21. 688 ICC Statute, art. 34. 689 Id. art. 36(3). 690 Id. art. 36(9).

147Due Process in Peacetime: International Law

ICTY, Article 22(2) of the ICC Statute mandates that the “definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”���

The three international crimes fully defined in the body of the Rome Statute also reflect a consensus on their content as being part of customary international law. What was excluded, in the early drafting processes, were so-called “treaty crimes,” i.e. crimes solely defined by various conventions, i.e. drug trafficking, attacks against UN personnel and other internationally protected persons, and terrorism.��� This does not exclude that certain particular manifestations of, say, terrorism, could be consid- ered as international crimes under the jurisdiction of the ICC.���

691 This resolves an issue debated particularly between ICTY/ICTR judges with a criminal law background and those with a public international law background in favor of the former. The question remains open, however as to whether the provisions of the ICC Statute other than those defining crimes should be interpreted in the more contextual and purposive way the Vienna Convention on the Law of Treaties (Articles 31 and 32) suggests or in the strict constructionist manner prevalent in the field of criminal law. Cf. Schabas, ICC, supra note 673, at 93-95.

692 While these treaty crimes – including various anti-terrorism conventions, the anti-hos- tage taking treaty, the convention on crimes against internationally protected persons, the convention against illicit traffic in narcotic drugs and psychotropic substances, etc. – were still part of the 1994 ILC Draft Statute for an International Criminal Court (Art. 20), they were excluded in 1996 by the Preparatory Committee. “The main argument was that not all the treaties that provided the basis for these ‘treaty crimes’ have yet found universal acceptance. Thus, their prosecution would have been restricted to the contract- ing parties to them, thereby weakening the automatic jurisdiction of the court. Moreover, these treaties do not foresee universal jurisdiction, but only a subsidiary form, i.e. the aut dedere aut iudicare principle. … Instead, the drafters of the ICC wanted to limit the ICC’s jurisdiction over customary law crimes which are already subject to universal jurisdiction in every potential member state. A final argument was that the introduction of a crime lacking a universally accepted definition could have politicized the court and jeopardized its coming into existence.” Roberta Arnold, The ICC as a New Instrument for Repressing Terrorism 54-56 (2004).

693 For details, see Roberta Arnold, supra note 692. In particular, the author concludes: “[O]nly a restricted category of terrorist acts can be prosecuted pursuant to Article 8 ICC Statute. These are usually state-sponsored attacks conducted by regular governmental armed forces or individuals linked to them, within the framework of an already ongoing conflict, and primarily aimed at civilians. … Article 7 ICC Statute … proves to be the ideal provision to prosecute acts of terrorism. Its content evokes the customary definition of crimes against humanity and requires that an act be committed as part of a widespread or systematic attack, against a civilian population and in furtherance of a policy, be this of a state or an international organization. A nexus with the war is not required and everyone can be a perpetrator. Although acts of terrorism as such are not encompassed, these of- ten fulfill the criteria of crimes against humanity such as murder, torture, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical lib- erty in violation of fundamental rules of international law, torture, persecution, enforced disappearance, and, more generally, inhumane acts.” Id. at 139-140.

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A fourth crime designated “aggression” was mentioned in Article 5 of the Stat- ute. Due to controversies about its definition, however, its conceptual delimitation was left to a review conference to be convened seven years after the entry into force of the Statute, i.e. 2009 at the earliest. It comes as no surprise that particularly the German and Japanese delegations to the Rome Conference voiced their displeasure about this decision, as in the Nuremberg Charter and the Judgment at Nuremberg the “crime against peace” of waging aggressive war had been considered the principal offense.���

Interestingly, also, for the purposes of this study, Article 7(2)(e) of the Rome Stat- ute defines torture as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.” This definition is broader than the one offered in the Convention Against Torture,��� as it includes even acts which are committed by pri- vate individuals for private motives. The Statute further gives jurisdiction to the ICC for a war crime of “torture or inhuman treatment” under Article 8 (2)(a)(ii), evidently criminalizing in this way also certain abusive interrogation methods. However, in Article 31 (1)(d) the ICC Statute provides for criminal law defenses of necessity and duress, and such an offense could be invoked by someone charged with a violation of Article 8 (2)(a)(ii). Although it has not yet been put to the test, this challenge is obvi- ously present, particularly if we consider, in the context of this study, that we might have to deal with an abusive interrogation method used by an official on someone detained and interrogated on terrorist charges.���

In contrast to the ad hoc tribunals as well, and in order to be palatable to all states, the principle of nullum crimen sine lege was meticulously followed with respect to the jurisdiction ratione temporae of this Court. Only offenses committed after the entry into force of the Statute, i.e. July 1, 2002, will be adjudicated by the ICC.��� It will thus not punish with retroactive effect. As far as jurisdiction ratione personae is

694 Schabas, ICC, supra note 673, at 32. 695 The definition of and protection against torture as elaborated in Art 1(1) of the 1984 Con-

vention Against Torture reads: “… the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimi- nation of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

696 An interesting examination of potential such conflicts and needs for balancing preven- tion of international crimes such as terrorism, and protection of human rights is found in Geert-Jan Alexander Knoops, International Criminal Law Liability for Interrogation Methods by Military Personnel under Customary International Law and the ICC Statute, 4 Int’l Crim. L. Rev. 211 (2004).

697 ICC Statute, art. 11.

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concerned, apart from a situation referred to it by the Security Council, acting under Chapter VII of the UN Charter, the ICC limits itself to offenses committed on the territory of, or by citizens of, states parties to its Statute or states which have accepted the jurisdiction of the Court with respect to the particular crime in question.���

Originally, in the ILC draft, the ICC was designed to have primacy over national courts, just as the ad hoc tribunals for Yugoslavia and Rwanda. Due to heavy political opposition, this concept was replaced by that of “complementarity.”��� The ICC will only be allowed to exercise its jurisdiction if the state with competing jurisdictional claims is “unable or unwilling” to prosecute the offender (Article 17). Only in this lat- ter situation will the ICC’s claim to prosecute and adjudicate be “admissible.”

For any trial, in particular, an international criminal trial to retain its legitimacy it is imperative to apply a fair procedure. As discussed above, both the Nuremberg and Tokyo trials suffered from a degree of unfairness to the accused, consequently drawing substantial criticism, particularly in light of later developing human rights guarantees. The ICC Statute places at the top of its agenda the fair trial and human rights guarantees. They are supplemented and implemented by the Rules of Proce- dure and Evidence, as adopted by at least a two-thirds majority of the members of the Assembly of States Parties.�00

As in the case of the ICTY and ICTR, the procedure of this Court is decidedly mixed: a hybrid between common law and civil law criminal procedure, with a start- ing point being the adversarial system, but not abandoning the search for truth as an important goal to be safeguarded, inter alia, by traditional inquisitorial rights of the bench.�0� As with the ICTY/ICTR, the detailed final tableau of the process before the ICC is still left to be developed in the practice of the Court.

Proceedings before the ICC can be started by the Prosecutor, acting proprio motu�0� or upon referral of a certain “situation” in which one or more crimes under the jurisdiction of the Court “appear to have been committed” by the Security Coun- cil, acting under Chapter VII.�0� Any state party may also refer a pertinent “situation” to the Court.�0� If the Prosecutor decides to investigate proprio motu, his or her in- vestigation first has to be authorized by the Pre-Trial Chamber.�0�

The Prosecutor considers the following factors in deciding whether to initiate an investigation: “(a) [t]he information available to the Prosecutor provides a reasonable

698 Id. art. 13. 699 Schabas, ICC, supra note 673, at 13-14. 700 ICC Statute, art. 51. 701 For details, see Schabas, ICC, supra note 673, at 143 (“Although much of the procedure

of the Court is a hybrid of different judicial systems, it seems clear that there is a definite tilt towards the common law approach of an adversarial trial hearing. However, the exact colouring that the Court may take will ultimately be determined by its judges”). See also the comparable situation before the ICTY/ICTR, supra, at notes 643-644.

702 ICC Statute, art. 13(c), 15(1). 703 Id. art. 13(b). 704 Id. art. 13(a), 14 705 Id. art. 15(3) and (4).

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basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) [t]he case is or would be admissible under Article 17; and, (c) [t]aking into account the gravity of the crime and the interests of victims, there are nonethe- less substantial reasons to believe that an investigation would not serve the interests of justice.”�0� Thus, a case may not be prosecuted unless a state which has jurisdiction over it is “unwilling or unable genuinely to carry out the investigation or prosecution” (the above-mentioned principle of complementarity).�0� Also, the Security Council may request the Prosecutor to defer an investigation or prosecution for a (renewable) period of 12 months.�0� These limitations appear to address the specter of a prosecu- tor run amok, but still leave him or her with a great deal of power as to whether to initiate a proceeding in the first place.

If he or she decides to investigate, the investigation has to cover all relevant facts, in particular, “investigate incriminating and exonerating circumstances equally” – a duty which analogizes him more to the prosecutors or juges d’instruction of civil law systems than the adversarial prosecuting attorneys of the common law�0� –, and “[f ]ully respect the rights of persons arising under this Statute.”��0

Article 55 of the Statute lists those rights during investigation:

1. In respect of an investigation under this Statute, a person: (a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to

any other form of cruel, inhuman or degrading treatment or punishment; (c) Shall, if questioned in a language other than a language the person fully under-

stands and speaks, have, free of any cost, the assistance of a competent interpret- er and such translations as are necessary to meet the requirements of fairness; and

(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such proce- dures as are established in this Statute.

2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Pros- ecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that

he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determina-

tion of guilt or innocence;

706 Id. art 53(1). 707 Id. art. 17. 708 Id. art. 16. 709 Schabas, ICC Statute, supra note 673, at 126. 710 ICC Statute, art. 54(1)(a) and (c).

151Due Process in Peacetime: International Law

(c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and

(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

In addition to the rights of the suspect listed by the ICTY and ICTR,��� this catalog in- cludes the important rights not to be arbitrarily arrested or detained; to be deprived of one’s liberty only in conformity with this Statute; and not to be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment.

Upon investigation and application by the Prosecutor, the Pre-Trial Chamber may issue a warrant of arrest of a person if it is satisfied that “there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”��� Upon application by the Prosecutor, it may alternatively issue a sum- mons for the person to appear.��� States parties are under a general obligation to co- operate with the Court in its investigation of crimes. Details of this obligation, the observance of which is key to the success of the ICC, are laid down in Part 9 of the Statute.��� This includes compliance with a Court request for arrest and surrender of the wanted person to the Court.���

Upon the wanted person’s surrender or voluntary appearance before the Court, the Prosecutor submits formal charges, and, within a reasonable time after such sur- render or voluntary appearance, the Pre-Trial Chamber shall hold a hearing to con- firm the charges on which the Prosecutor intends to seek trial.��� On the basis of this hearing, the Pre-Trial Chamber determines whether there is sufficient evidence to establish “substantial” grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall confirm those charges in relation to which it has determined that there is sufficient evidence – and only those, if any –, and commit the person to a Trial Chamber for trial on the charges as confirmed.���

Article 66 specifies that the accused is presumed innocent, and can be convicted only if the Court is convinced of his or her guilt beyond reasonable doubt.

Article 67 lists the rights of the accused in trial:

711 Supra note 655. 712 ICC Statute, art. 58(1). 713 Id. art. 58. 714 Id. art. 86 et seq. 715 Id. art. 89. 716 Id. art. 61(1). 717 Id. art. 61(7).

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1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the

charge, in a language which the accused fully understands and speaks; (b) To have adequate time and facilities for the preparation of the defence and to

communicate freely with counsel of the accused’s choosing in confidence; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be in-

formed, if the accused does not have legal assistance, of this right and to have le- gal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;

(f ) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;

(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;

(h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any

onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as

soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecu- tion evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

This list includes all of the rights guaranteed in the ICTY/ICTR’s catalog. It incor- porates many lessons learnt from the wealth of experience of the ICTY and ICTR. That works towards a fairer procedure which in the work of international tribunals has continuously progressed to strengthen due process and human rights generally.��� This list specifically emphasizes defendant’s rights such as the right to communi- cate freely and in confidence with his legal representative; the right to remain silent without any implication of guilt or innocence; the right to make an un-sworn oral or written statement in his or her own defense; and the right not to have imposed

718 For an analysis and a comparative study of the procedure governing the ad hoc tribunals and the ICC, and their respective case law, see Salvatore Zappalà, Human Rights in International Criminal Proceedings (2003).

153Due Process in Peacetime: International Law

on him or her any reversal of the Prosecutor’s burden of proof or onus of rebuttal. Importantly, there is also a right to a counsel of one’s choosing. Further safeguards in the use of confession evidence are provided by Article 65.��� Plea bargaining is se- verely limited.��0 However, with the prosecution, but not the defense, being an organ of the Court, the experience of the ICTY involving judges in the pre-trial and trial phases even in orders to produce evidence or to ensure the appearance of witnesses proves to be an important guarantee in securing the equality of arms between the prosecution and the defense. The right to a “fair hearing,” in particular, may allow for the development of a vigorous “equality of arms” jurisprudence similar to the one developed in the ICTY and ICTR.���

U.S. critics of the ICC procedure have pointed to various perceived insufficiencies of the Statute. In particular, it has been stated by a Texas Assistant District Attor- ney:

The ICC Statute is silent about numerous basic guarantees that are taken for granted in the United States’ criminal justice system. There is no reference to the concept of a right to privacy. There is no protection from witness tampering. There is no hearsay rule. The discovery guarantees are vague. There is no reference to the concept of a chain of custody necessary for evidence collected. There is no right to review of allegations of prosecuto- rial misconduct. There is no definition of effective counsel. There is no requirement that a conviction be based on more than a co-actor’s testimony. There is no basis for determining whether a confession was properly obtained. There is no requirement of evidence to cor- roborate a confession. There is no concept of offense nullification.���

The ICC Statute is charged to be “unclear about how much notice of charges pending against an accused person is necessary.”��� The Rules of Procedure and Evidence as adopted by the Assembly of States Parties which could fill in some of those perceived gaps are considered insufficiently legitimate: “Any law that comes from the Assembly of States Parties, or from the justices of the court, may too easily be changed and takes the treaty-making power away from sovereign countries and gives it to an un-

719 For further detail, particularly as it concerns plea bargaining and its (non)impact on sen- tencing by the Court, as well as a comparison with such procedure in ICTY and ICTR see Ralph Henham, Procedural Justice and Human Rights in International Sentencing, 4 Int’l Crim. L. Rev. 185, 192-204 (2004).

720 ICC Statute, art. 65((5): “Any discussions between the Prosecutor and the defense regard- ing modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.”

721 Schabas, ICC, supra note 673, at 99. See also the discussion regarding ICTY procedure, supra at notes 667-669.

722 Andrew J. Walker, When A Good Idea Is Poorly Implemented: How the International Criminal Court Fails to Be Insulated from International Politics and to Protect Basic Due Process Guarantees, 106 W. Va. L. Rev. 245, 279-280 (2004).

723 Id. at 280.

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checked international body.”��� With respect to the crimes other than genocide, the author charges:

There are many possible interpretations of the words chosen to define the other crimes and several possible interpretations of appropriate mens reas applicable to them. The statute permits the justices of the court to fill in the undefined gaps in the law, including definitions of the crimes.���

Obviously, the author points out, there is no trial by jury, “one of most fundamental tenants [sic] of the American justice system.”��� He concludes:

Like the United States Constitution, the ICC Statute must be meticulously designed to pro- tect individual rights and to protect the reasonable use of preventative force. The statute, in its current form, reads like a European vision of a world without American power, without American constitutional guarantees, and without a basis in the lessons learned from victo- ries in the Cold War and the [S]econd World War.���

A U.S. supporter of the ICC has made the following arguments, though:

Under the Rome Statute and the Rules of Procedure, defendants before the court enjoy a host of protections. Consider, for example, the right to counsel, the presumption of in- nocence, and the privilege against self-incrimination. All ICC defendants “shall be entitled … to have legal assistance assigned by the court where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it.” Regarding the pre- sumption of innocence, the Rome Statute provides that every person “shall be presumed to be innocent until proven guilty before the Court.” The presumption of innocence is given substance by requiring that the Pre-Trial Chamber approve a prosecutor-initiated investi- gation, at which time the accused may object, challenge the evidence, or present her own evidence. Moreover, persons suspected of committing a crime under ICC jurisdiction have the right to remain silent “without such silence being a consideration in the determination of guilt or innocence.” Indeed, early in an investigation or prosecution the Rome Statute provides even more of a privilege than the vaunted Miranda rule, which requires warnings only when a suspect is in police custody. In contrast, the Rome Statute requires a warning whenever the prosecution has grounds to believe that the person being questioned has committed a crime. In other areas, the court also provides guarantees that are roughly com- parable to American rules. [provides examples.] … With respect to unreasonable search- es and seizures, the ICC is required to apply an exclusionary rule rejecting any evidence tainted by violations of “internationally recognized human rights.” See Rome Statute, art. 69(7). The right to privacy is often considered one such right. … Some differences obvi-

724 Id. 725 Id. at 287-288. 726 Id. at 288-289. 727 Id. at 304.

155Due Process in Peacetime: International Law

ously exist between the law affecting an American criminal proceeding and a proceeding before the ICC. In part as a reflection of the civil law precepts of many ICC supporters, the Rome Statute does not provide for a trial by jury. A panel of judges tries cases. But neither do American servicemembers possess a right to trial by a civil jury. Courts martial do not guarantee trial by jury, yet military personnel are still considered to be protected by the U.S. Constitution. Moreover, if a member of the military commits a crime in another country, the Status of Forces Agreement between that country and the United States affects where the individual shall be tried. …

The procedural critique seems even more peculiar when placed in the larger context of “constitutional rights variation” practiced for a host of defendants and detainees of the U.S. Government in different settings. Not everyone enjoys the same package of rights, which is what might allow, for example, a military commission to try charges of a violation of the laws of war instead of an Article III court. … Turning to more recent developments, U.S. citizens and noncitizens treated as enemy combatants are in what is best described as some sort of a legal limbo. … Given the gap between the elaborate rights the ICC guarantees a U.S. national on paper and the more inconsistent protections someone might have inside the United States, it would seem at best as though the procedural due process critique un- derexplains U.S. rejection of the ICC.���

Whatever the truth is about the particular features of the ICC and the U.S. proce- dural regimes, it is clear that the ICC Statute is not, and was not intended to be, an exact replica of the U.S. system of criminal procedure and the due process guarantees developed within this framework. There is, in particular, not a trial by jury to which other elements of the system such as the adversarial nature of the process and broad exclusionary rules respond. Criticisms regarding the absence in the ICC procedural regime of certain features germane to the U.S. legal system reveal the unwillingness of the author to countenance any departure in global adjudicative fora from the Ameri- can system of criminal justice as administered to American citizens in peacetime. The author’s insistence upon the regulation of all procedural elements in the Statute itself also overlooks that the Assembly of States Parties, which adopts the Rules of Procedure and Evidence, leaves the sovereign states in charge of determining the ex- act contours of the ICC’s version of due process. Even more importantly, in the U.S., the exact contours of due process were not delineated by the Constitution itself, or by the various legislative bodies, but by the judges, ultimately the nine Justices of the U.S. Supreme Court. And they are not etched in stone, as the various meanderings of rulings on Miranda and the exclusionary rule demonstrate. The ICC judges will, by the nature of their function, have the power to finetune procedure, but they will have to do it not only within the framework of an open-ended constitutional provi- sion mandating “due process” or one forbidding “unreasonable searches or seizures,”

728 Mariano-Florentino Cuéllar, The International Criminal Court and the Political Economy of Antitreaty Discourse, 55 Stan. L. Rev. 1597, 1608-1612 (2003). For more on the com- parison between due process guarantees under the ICC and the U.S. Constitution, see Audrey I. Benison, International Criminal Tribunals: Is There a Substantive Limitation on the Treaty Power?, 37 Stan. J. Int’l L. 75 (2001).

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but within the normative strictures of the ICC Statute and its Rules of Procedure and Evidence. The real question is whether the ICC will, not only in form, but in substance, not only in its rules, but in its practice, reach the goal of effectively ending impunity for the perpetrators of the most heinous offenses against humankind while still maintaining the rights of the defendants a modern human rights system, as pro- moted historically, and prominently, by the United States.

The practice since the establishment of the Court in 2003��� gives reason to hope that this goal still can be achieved.

There are presently four “situations” on the docket of the prosecutor. Three of them are brought by states parties to the Office of the Prosecutor, one of them by the Security Council.

(1) The first situation was referred to the ICC by the Government of the Democratic Republic of Congo (DRC) on March 3, 2004. On June 23, 2004, the Prosecutor an- nounced his decision to open an investigation in the situation in the DRC.��0

On January 12, 2006, the Prosecutor submitted an application to the Chamber for the issuance of a warrant of arrest against Mr Thomas Lubanga Dyilo. Thomas Lu- banga Dyilo, a national of the DRC, is the alleged founder of the Union des Patriotes Congolais (UPC) and the Forces patriotiques pour la libération du Congo (FPLC), the alleged former Commander-in-Chief of the FPLC and the alleged President of the UPC.���

The warrant of arrest against Mr. Lubanga was issued under seal on 10 February, 2006 and unsealed on 17 March, 2006, the same day as he was arrested in Kinshasa and transferred to the Court in The Hague. According to the arrest warrant, “there are reasonable grounds to believe that from July 2002 to December 2003 members of the FPLC carried out repeated acts of conscription into the FPLC of children un- der the age of fifteen who were trained in the FPLC training camps of Bule, Cen- trale, Mandro, Rwampara, Bogoro, Sota and Irumu”; and that “there are reasonable grounds to believe that, during the relevant period, members of the FPLC repeatedly used children under the age of fifteen to participate actively in hostilities in Libi and Mbau in October 2002, in Largu at the beginning of 2003, in Lipri and Bogoro in February and March 2003, in Bunia in May 2003 and Djugu and Mongwalu in June 2003.”���

On March 20, 2006, there was the initial appearance of Mr. Thomas Lubanga Dy- ilo before Pre-Trial Chamber I in public hearing.

On August 28, 2006, the Pre-Trial Chamber I received documents containing the charges and list of evidence against Mr Thomas Lubanga Dyilo.

In the confirmation hearing on these charges before the Pre-Trial Chamber, all participants to the proceedings had a chance to be heard: the Prosecutor, the Defence

729 For all the relevant documents, see the ICC website at http://www.icc-cpi.int. 730 ICC Newsletter #10, November 2006, available at http://www.icc-cpi.int/library/about/

newsletter/ 10/index.html. 731 Id. 732 Id.

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and the victims. It is the first time in the history of international criminal law that victims were able to assert their rights through their legal representatives.���

Regarding this case, Chief Prosecutor Luis Moreno-Ocampo has stated:

Thomas Lubanga Dyilo, alleged leader of one of Ituri’s most dangerous militias, is alleged to have been involved in the commission of war crimes. The charges presented by my Office are enlisting and conscripting children under the age of fifteen and using them to partici- pate actively in hostilities. He is currently detained in the ICC Detention Centre.

It is my hope that, beyond bringing Mr. Lubanga Dyilo to justice, this case will help to draw the attention of the world to this illegal practice and stimulate co-operation to stop it. The lives and futures of thousands of children and their communities are being destroyed by these practices each year. The abuse of these children worldwide has gone largely unrec- ognised and unpunished for too long.���

On January 29, 2007, Pre-Trial Chamber I, according to Article 61(7) of the Statute, confirmed, “on the evidence admitted for the purpose of the confirmation hearing, that there is sufficient evidence to establish substantial grounds to believe that Thom- as Lubanga Dyilo is responsible, as a co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of articles 8(2)(b)(xxvi) and 25(3)(a) of the Statute from early September 2002 to 2 June 2003” as well as “for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of ar- ticles 8(2)(e)(vii) and 25(3)(a) of the Statute from 2 June to 13 August 2003.”��� It com- mitted Thomas Lubanga Dyilo to a Trial Chamber for trial, the first such proceeding before the ICC.

The prosecution, however, hit a significant roadblock when, on June 13, 2008, Trial Chamber I stayed the trial of Mr. Lubanga sine die, since the Prosecutor’s Office had, in the eyes of the Chamber, incorrectly blocked the release of exculpatory materials in its possession to the defense and the Chamber by entering into improper confiden- tiality agreements with information providers, in particular, the UN.��� The Chamber stated that the “disclosure of exculpatory evidence in the possession of the prosecu-

733 Id. 734 Id. 735 Pre-Trial Chamber I, Situation in the Democratic Republic of Congo in the Case of The

Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06, Decision on the confirma- tion of charges, 29 January 2007, at 156-157, available at http://www.icc-cpi.int/library/ cases/ICC-01-04-01-06-803-tEN_English.pdf.

736 Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, The Hague, 13 June 2008, ICC Doc. No. ICC-01/04-01-06/1401, http://www.icc-cpi.int/li- brary/cases/ICC-01-04-01-06-1401-ENG.pdf.

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tion is a fundamental aspect of the accused’s right to a fair trial.”��� On July 2, 2008, the Trial Chamber ordered the release of the defendant��� – a decision suspended, in its effect, by the Appeals Chamber during its consideration of the appeal filed by the Prosecution.���

(2) On December 16, 2003, the Government of Uganda, a state who had ratified the ICC Statute on June 14, 2002, referred the situation concerning Northern Uganda to the Prosecutor of the ICC.��0 It concerns mostly atrocities allegedly committed by the so-called “Lord’s Resistance Army (LRA)” involving, inter alia, the abduction of children and their use as soldiers of the LRA.

After thorough analysis of available information, on July 28, 2004, the Chief Pros- ecutor opened an investigation into the situation concerning Uganda. On May 6, 2005, the Prosecutor filed an application for warrants of arrest for crimes against humanity and war crimes against five senior commanders of the LRA: Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen. On July 8, 2005, ICC Pre-Trial Chamber II issued arrest warrants under seal. Upon application by the Prosecutor, Pre-Trial Chamber II unsealed these arrest warrants on October 13, 2005.

(3) On May 22, 2007, the Prosecutor announced the opening of an investigation in the Central African Republic in accordance with Article 53 of the ICC Statute. The Government of the Central African Republic, a state party to the ICC having ratified its Statute on October 3, 2001, referred the situation to the Office of the Prosecutor on 22 December 2004.��� The Central African authorities provided information in relation to the allegations of crimes and to proceedings held by the national judiciary. The Prosecutor has also received significant pertinent communications from non- governmental organizations and international organizations.

According to the Prosecutor, his investigation will “focus on the most serious crimes; those were mainly committed during a peak of violence in 2002-03. There are

737 Id. para. 92. 738 Decision on the release of Thomas Lubanga Dyilo, The Hague, 2 July 2008, ICC Doc.

No. ICC-01/04-01-06/1418, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1418- ENG.pdf.

739 Decision on the request of the Prosecutor for suspensive effect of his appeal against the “Decision on the release of Thomas Lubanga Dyilo,” The Hague, 7 July 2008, ICC Doc. No. ICC-01/04-01-06/1423, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06- 1423-ENG.pdf (a decision based on Article 82(3) of the Statute). See also Reasons for the decision on the request of the Prosecutor for suspensive effect of his appeal against the “Decision on the release of Thomas Lubanga Dyilo,” The Hague, 22 July 2008, ICC Doc. No. ICC-01/04-01-06/1444, http://www.icc-cpi.int/library/cases/ICC-01-04-01- 06-1444-ENG.pdf.

740 Facts and Procedure Regarding the Situation in Uganda, ICC Doc. No. ICC20051410.056.1- E, The Hague, 14 October 2005.

741 ICC Office of the Prosecutor, Background, Situation in the Central African Republic, The Hague, 22 May 2007, ICC Doc. ICC-OTP-BN-20070522-220-A_EN.

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in particular many allegations of rapes and other acts of sexual violence perpetrated against hundreds of reported victims. In parallel, the OTP will continue to monitor closely allegations of crimes committed since the end of 2005. … Some of the worst allegations relating to killing, looting and rape, occurred during intense fighting in October – November 2002 and in February – March 2003. Attacks against civilians followed a failed coup attempt; there emerged a pattern of massive rapes and other acts of sexual violence perpetrated by armed individuals. Sexual violence appears to have been a central feature of the conflict. … Credible reports indicate that rape has been committed against civilians, including instances of rape of elderly women, young girls and men. There were often aggravating aspects of cruelty such as rapes committed by multiple perpetrators, in front of third persons, with sometimes rela- tives forced to participate. The social impact appears devastating, with many victims stigmatized and, reportedly for a number of them, infected with the HIV virus.”���

The Prosecutor determined that, according to all the information available to him, the alleged crimes, notably killings and large-scale sexual crimes, were “of sufficient gravity to warrant an investigation.” With respect to admissibility under Article 17 of the Statute, he noted that the Cour de Cassation of the Central African Republic in April 2006 had indicated that “in relation to the alleged crimes the national au- thorities were unable to carry out the necessary criminal proceedings, in particular to collect evidence and obtain the accused.” As part of the evaluation of the interests of justice, victims were heard who confirmed clearly that they “were awaiting the in- volvement of the ICC in order to see justice done and to recover their dignity.”���

(4) The United Nations Security Council addressed the situation in Darfur, which had been characterized by U.S. Administration officials as “genocide.”��� After an In- ternational Commission of Inquiry on Darfur was established by UN Secretary-Gen- eral Kofi Annan in October 2004, the Commission reported to the UN in January 2005 that there was reason to believe that crimes against humanity and war crimes had been committed in Darfur and recommended that the situation be referred to

742 Id. 743 Id. 744 On July 22, 2004, both chambers of the U.S. Congress adopted concurrent resolutions

“condemning the continuing atrocities in the Darfur region of western Sudan as ‘gen- ocide’ and asking the international community to join with the United States to help bring an end to the humanitarian catastrophe that is under way there. The U.S. House of Representatives passed its version (House Concurrent Resolution 467) in a vote of 422-0, with the U. S. Senate approving its version (Senate Concurrent Resolution 133) by voice vote.” Available at http://usinfo.state.gov/is/Archive/2004/Jul/26-233176.html. Both President Bush and the State Department have also “used the term ‘genocide’ to describe the situation in western Sudan.” Recently, however, United States Special Envoy to Sudan, Andrew Natsios, claimed the crisis in Darfur no longer constitutes genocide. On February 7, 2007, he stated at Georgetown University, “The term genocide is counter to the facts of what is really occurring in Darfur,” Aaron Glantz, US Slammed for Back- ing off ‘Genocide’ Charge, February 16, 2007, available at http://www.commondreams. org/headlines07/0216-07.htm.

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the ICC.��� In its 176-page report, the Commission concluded that the government of Sudan had not pursued a policy of genocide; rather, it described it to be “counter- insurgency warfare.” According to the Commission, there was no proof that govern- ment’s policy evinced “a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds.”��� The Commission nevertheless stated that “in some instances individuals, including Government of- ficials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case by case basis.” Certain acts committed by the government forces and militias were seen as potentially amounting to crimes against humanity, and also war crimes.���

On March 31, 2005, acting under Chapter VII of the UN Charter, and Article 13(b) of the Rome Statute, the Security Council referred the situation in Darfur since July 1, 2002 to the Prosecutor of the International Criminal Court.��� The resolution required Sudan and all other parties to the conflict in Darfur to cooperate with the Court. It was adopted by a vote of 11 in favour with 4 abstentions (Algeria, Brazil, China,United States).���

After reviewing the document archive of the International Commission of Inquiry on Darfur, requesting and reviewing information from a variety of sources, leading to the collection of thousands of documents, and interviewing over 50 independent ex- perts, the Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno- Ocampo, on June 6, 2005, concluded that the statutory requirements under Article 53 of the ICC Statute for initiating an investigation were satisfied, and he decided to open an investigation into the situation in Darfur, Sudan.��0

On February 27, 2007, the Office of the Prosecutor presented to the ICC Pre- Trial Chamber evidence according to which Ahmad Harun and Ali Kushayb joined together to systematically pursue and attack innocent civilians. Ahmad Harun is the Sudanese Minister responsible for providing humanitarian assistance to more than four million people in Darfur. “In his former position as Minister of State for the Interior and head of the Darfur security desk, Ahmad Harun organised a system through which he recruited, funded and armed Militia/Janjaweed to supplement the Sudanese Armed Forces and then incited them to commit murder, rape, and other

745 Report of the International Commission of Inquiry on violations of international hu- manitarian law and human rights law in Darfur, UN Doc. S/2005/60.

746 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, at 4. Available at http://www.un.org/News/dh/sudan/com_ inq_darfur.pdf.

747 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, at 3-4.

748 UN Security Council Res. 1593 (2005). 749 UN Security Council, 5158th Meeting (Night), Press Release SC/8351, 31 March 2005. 750 The Prosecutor of the ICC opens investigation in Darfur, The Hague, 6 June 2005, ICC

Doc. ICC-OTP-0606-104-En.

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massive crimes against the civilian population. He was well-suited for the task, hav- ing mobilised and recruited Militia in Kordofan, South Sudan, for a counterinsur- gency campaign in the 1990s. Militia/Janjaweed leader Ali Kushayb played a key role in Harun’s system, personally delivering arms and leading attacks against villages. Together, Ahmad Harun and Ali Kushayb are allegedly responsible for 51 counts of war crimes and crimes against humanity.”��� On April 27, 2007, a panel of three pre- trial judges at the International Criminal Court issued warrants for their arrest.���

On June 7, 2007, the ICC Chief Prosecutor appealed to the United Nations Secu- rity Council that the two accused Darfur international criminals must be arrested: “The Security Council and regional organizations must take the lead in calling on the Sudan as the territorial State to arrest the two individuals and ensure their appear- ance in Court. And we count on every state to execute an arrest should either of these individuals enter their territory.”��� As to Ahmad Harun, the prosecutor stated, “This is the same man who, in 2003, at a public meeting, declared that in being appointed to the Darfur security desk, he had been ‘given all the power and authority to kill or forgive whoever in Darfur for the sake of peace and security.’”���

The cooperation by the Government of Sudan was less than forthcoming. Then, in a surprise action, on July 14, 2008, Luis Moreno-Ocampo, the Prosecutor

for the ICC, applied to the Court’s Pre-Trial Chamber III for the issuance of an arrest warrant against the President of Sudan, Omar Hassan Ahmad al Bashir, based on ten counts of international crimes ranging from genocide, to crimes against humanity, and to war crimes.��� In his application, the Prosecutor noted that, in Darfur, “geno- cide is ongoing.” Claiming that al Bashir was the mastermind behind the atrocities in this benighted region, the Prosecutor added that the crimes were perpetrated by forces under al Bashir’s “absolute control.”���

751 Prosecutor briefs UN Security Council, calls for the arrest of Ahmed Harun and Ali Kushayb for crimes in Darfur, The Hague, 7 June 2007, ICC Doc. ICC-OTP-PR-20070607-222_ EN. Cf. The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muham- mad Ali Abd-Al-Rahman (“Ali Kushayb”), ICC Doc. ICC-02/05-01/07.

752 Id. 753 Id. 754 Id. 755 Details in Prosecutor’s Statement on the Prosecutor’s Application for a warrant of Arrest

under Article 58 Against Omar Hassan Ahmad AL BASHIR, The Hague, July 14, 2008, available at http://www.icc-cpi.int/library/organs/otp/ICC-OTP-ST20080714-ENG.pdf. For the official summary of the application of the Prosecutor to the Pre-Trial Chamber III regarding the situation in Darfur, the Sudan, see Prosecutor’s Application for War- rant of Arrest under Article 58 Against Omar Hassan Ahmad Al Bashir, available at http://www.icc-cpi.int/library/organs/otp/ICC-OTP-Summary-20081704-ENG.pdf. For background on the conflict in Darfur, see Amnesty International: Eyes on Darfur, available at http://www.eyesondarfur.org/conflict.html.

756 Summary of Prosecutor’s Application under Article 58, The Hague, 14 July 2008, ICC Doc. No. ICC-02/05, http://www.icc-cpi.int/library/cases/ICC-02-05-152-ENG.pdf, para. 40.

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There appears to be no issue with the complementarity principle of ICC jurisdic- tion,��� since no national proceedings whatsoever on these crimes have been initiated in Sudan. The Sudanese government has constantly refused to investigate allegations of such crimes committed by its high-ranking officials.

As stated above, in order for the Pre-Trial Chamber to issue an arrest warrant against a person, the Prosecutor only needs to convince the PTC that there are “rea- sonable grounds to believe that the person has committed a crime within the juris- diction of the Court.”���

Though the charges brought up in Prosecutor’s application are not definitive, as they could be changed in the course of further Court proceedings until the accused is brought to trial,��� the Prosecutor is still required to indicate them in detail. Accord- ing to the Prosecutor, al Bashir bears criminal responsibility for:

• genocide under Article 6 (a), killing members of the Fur, Masalit and Zaghawa ethnic groups, (b) causing serious mental harm, and (c) deliberately inflicting conditions of life calculated to bring about their physical destruction in part;

• crimes against humanity under Article 7(1), including acts of (a) murder, (b) extermi- nation, (d) forcible transfer of the population, (f ) torture and (g) rapes; and

• war crimes under Article 8(2)(e) for intentionally directing attacks against the civilian population(i) and pillaging(v).��0

757 As stated supra, at note 806, the ICC will only be allowed to exercise its jurisdiction if the state with competing jurisdictional claims is “unable or unwilling” to prosecute the of- fender (Article 17). A good discussion on the principle of complementarity can be found in John T. Holmes, Complementarity: National Courts versus the ICC, in The Rome Statute of the International Criminal Court: A Commentary 667 (Antonio Cassese, Paola Gaeta & John Jones eds., 2002). Article 17 of the Rome Statute is based on the content of paragraph 10 of the Rome Statute’s Preamble which emphasizes “that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions,” as well as Article 1 which states the same.

758 ICC Statute, art. 58(1)(a). Upon surrender of the person to the Court, the PTC will hold a hearing to determine whether there is “sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged,” and if this question is answered in the affirmative, “confirm” these charges and “commit the person to a Trial Chamber for trial on the charges as confirmed.” Id. art. 61(7).

759 Until the trial starts, the Prosecutor may amend those charges with permission of the PTC and after notice to the accused. Id. art. 61(9). If charges are added, a further con- firmation hearing is required. Id. See also Marko Milanovic, ICC Prosecutor charges the President of Sudan with genocide, crimes against humanity and war crimes in Darfur, 12 ASIL Insight, Issue 15, July 28, 2008, available at http://www.asil.org/insights/2008/07/ insights080728.html.

760 Summary of Prosecutor’s Application under Article 58, The Hague, 14 July 2008, ICC Doc. No. ICC-02/05, http://www.icc-cpi.int/library/cases/ICC-02-05-152-ENG.pdf, para. 62.

163Due Process in Peacetime: International Law

The Prosecutor gave detailed reasons for his charges. In his charge of genocide, he was, in effect, challenging the January 2005 Report of the United Nations Commis- sion of Inquiry which had concluded that the government’s policy lacked the requi- site genocidal intent.��� The Prosecutor stipulates that recent evidence shows that al Bashir has chosen rape, hunger and fear as an “efficient method of destruction” as he camouflages genocide “in the face of international scrutiny.”���

He further claimed that systematic rape, an act which constitutes a crime against humanity, is used as a war weapon in Darfur. He emphasized that: “Seventy-year-old women, 6-year-old girls are raped,”��� and he also quoted a Darfuri victim as saying: “when we see them, we run. Some of us succeed in getting away, and some are caught and taken to be raped – gang-raped. Maybe around 20 men rape one woman. These things are normal for us here in Darfur. They rape women in front of their mothers and fathers.”��� Bringing up further grounds that effectuate the crime he concludes: “Al Bashir does not need gas chambers, bullets or machetes. This is Genocide by at- trition.”��� Reminding the world that there is no more time to wait and see, Moreno- Ocampo observed that the international community had “failed in the past, failed to stop Rwanda genocide, failed to stop Balkans crimes,” and he built his case for im- mediate action stressing the urgency of now to prevent the slow death of 2.5 million Darfuris.���

The Sudanese government and parliament rejected the jurisdiction of the Court, and they labeled the Prosecutor as being politically motivated in filing the charg- es.���

Presently, it is up to Pre-Trial Chamber III of the ICC to decide on the applica- tion of the Prosecutor, either by challenging the legal analysis of the Commission as regards genocide, or maybe by simply providing enough proof that such acts were perpetrated after March 2005. Whatever the result, ensuring compliance with the Court’s decision remains a responsibility of the Security Council. The Council was pressured from the inside to invoke Article 16 of the Rome Statute in order to defer al Bashir’s prosecution for one year, which is a renewable action. Such an act would have meant interference with the Court’s jurisdiction right after the Security Council had established such jurisdiction through Resolution 1593. That was unlikely, as the U.S. had accused Sudan of genocide, and the U.K. and France, members of the ICC,

761 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, at 4. Available at http://www.un.org/News/dh/sudan/com_ inq_darfur.pdf.

762 Prosecutor’s Statement, supra note 755. 763 Mike Corder, Sudanese President Charged with Genocide in Darfur, Associated Press,

July 14, 2008, available at http://ap.google.com/article/ALeqM5gMU9_nxHnfBspo- 342jYG0nXyx7-gD91TMTT80.

764 Prosecutor’s Statement, supra note 755. 765 Id. 766 Mike Corder, supra note 763. 767 Id.

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have strongly opposed any interference with the independence of the court.��� Ad- ditionally, seven��� out of the ten present non-permanent members are states parties to the Rome Statute, and would probably not, in such a circumstance, opt to interfere with its work.��0

However, in the month of July 2008, within the Security Council, matters were not so easy to deal with. The UNAMID mission in Sudan was about to expire on July 31, 2008, and the need to extend it for another year was urgent. The African Union had asked the UN Security Council to invoke Article 16 of the Rome Statute, in order to suspend the ICC’s proceedings against al Bashir for one year. This request was backed up in the Security Council by Libya and South Africa, as well as Russia and China, who insisted that the resolution on renewing the UNAMID mandate should also ask for suspending the ICC’s proceedings, arguing that prosecuting Sudan’s president would set back, and probably make impossible, peace in Darfur. After long negotia- tions, and strong opposition by the UK, France, the US as well as Central American countries, the Resolution that renewed the UNAMID mandate only made notice of the African Union’s request for the Council to postpone the ICC’s proceedings, but it did not commit the Security Council to anything further.��� The Resolution was ap- proved with fourteen votes. Only the U.S. abstained, insisting that there should be no link between the mandate of the peacekeeping force and the Court’s work.���

What we can conclude from this overview is that most of the situations dealt with by the Court have been submitted by governments that are not unwilling, but unable to prosecute offenders of the worst kind. They all are located on the continent of Africa, as is the one situation referred by the Security Council, Darfur. Also, the Pros- ecutor has shown a great deal of self-restraint, not having initiated any case proprio motu. Any fears of him politicizing his office have, at least not yet, materialized. This may also have to do with powerful antagonism from important quarters, particularly the United States.

The ICC’s broader reach and, possibly, success has been imperiled since it has run into heavy opposition from the United States, which, particularly under the Bush Ad-

768 Sudan’s Bashir could escape war crimes indictment, Reuters, July 16, 2008, available at http://www.reuters.com/article/homepageCrisis/idUSN16459860._CH_.2400. In this article Reuters quotes French Ambassador Jean-Maurice Ripert and British Ambassador John Sawers who noted that their countries have no intention to interfere with the ICC process, which should be independent and free of political pressure. Whereas, the US special envoy for Sudan is quoted to have said that “there can be no impunity” for crimes in Darfur. Ibid.

769 Namely: Belgium, Burkina Faso, Costa Rica, Croatia, Italy, Panama, South Africa. 770 See discussion of this issue by Kevin Jon Heller at Opinio Juris, July 14, 2008, available

at http://opiniojuris.org/tag/bashir-icc-indictment/. 771 UN extends Darfur peace mission, BBC, August 1, 2008, available at http://news.bbc.

co.uk/2/hi/africa/ 7535297.stm. 772 Alejandro Wolff, US deputy ambassador to the UN, noted that: “The United States ab-

stained in the vote, because language added to the resolution would send the wrong sig- nal to the Sudanese president.” UN extends Darfur peace mission, BBC, August 1, 2008, available at http://news.bbc.co.uk/2/hi/africa/ 7535297.stm.

165Due Process in Peacetime: International Law

ministration, has fought it with single-minded determination. The Statute was seen as an intolerable intrusion into the country’s sovereignty, and fears were expressed regarding its potential political manipulation by foes of the U.S., a country with many military engagements and leadership and alliance obligations throughout the world. Signed by President Clinton on the last possible day, December 31, 2000,��� President Bush’s point-man on the issue, Under-Secretary of State John R. Bolton declared that the United States will not ratify the Statute of Rome, removing thereby all poten- tial legal effects of its signature under Article 18 of the Vienna Convention of the Law of Treaties (a treaty it has only signed, but not ratified).��� Countries have been “pressured” into signing agreements with the U.S. pursuant to which they would not transfer U.S. citizens on their territory to the custody of the ICC, agreements ar- gued to fall under Article 98 of the Statute of Rome. On August 2, 2002, Congress passed a statute entitled the “American Service Members’ Protection Act”��� which prohibited agencies of the U.S. Government from cooperating with the Court, denied any country that ratified the ICC Statute military assistance, and allowed the use of force to liberate U.S. citizens detained or imprisoned by or on behalf of the Court. The participation of U.S. armed forces in international, particularly UN and NATO, peacekeeping operations was made dependent upon those peacekeepers being im- mune from the jurisdiction of the ICC.��� Only recently, some mellowing in the U.S. stance against the ICC has been observed, when the U.S. let pass a Security Council resolution which referred the investigation and prosecution of international crimes committed in Darfur to the ICC.���

773 ICC Statute, art. 125(1). 774 For the text of the Bolton Statement and its legal effect, see W. Michael Reisman et

al., International Law in Contemporary Perspective 1320 (2004). 775 22 U.S.C. 7421 et seq. 776 Sean D. Murphy, American Service Members’ Protection Act, 96 Am. J. Int’l L. 975

(2002). 777 The U.S. abstained in that vote, rather than vetoing the resolution. Since the U.S. had

called the events happening in Darfur a genocide, a veto would have raised the claim for establishing another ad hoc tribunal along the lines of the ICTY and ICTR or a hy- brid domestic-international tribunal, with all the additional expenses involved. The com- ments by the U.S. Representative to the Security Council at that meeting, Ms. Anne Woods Peterson, were summarized as follows: “While the United States believed that a better mechanism would have been a hybrid tribunal in Africa, it was important that the international community spoke with one voice in order to help promote effective ac- countability. The United States continued to fundamentally object to the view that the Court should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. Because it did not agree to a Council re- ferral of the situation in Darfur to the Court, her country had abstained on the vote. She decided not to oppose the resolution because of the need for the international commu- nity to work together in order to end the climate of impunity in the Sudan, and because the resolution provided protection from investigation or prosecution for United States nationals and members of the armed forces of non-State parties.” UN Security Council, 5158th Meeting (Night), Press Release SC/8351, 31 March 2005.

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Whatever the future of this institution may be, it has managed to attract the con- sent to be bound via treaty by many states to not only a broad and up-to-date array of substantive international crimes, but also to a most modern set of due process rights that build upon the Statutes, Rules and jurisprudence of the ICTY and ICTR – institutions that received their authority “only” from the Security Council, and, in the case of Rules and jurisprudence, the persuasiveness of their own arguments. As of October 20, 2008, the Statute of Rome has been ratified by and entered into effect for 108 states.��� Many of its substantive and procedural provisions are uncontested; their affirmative support by this large number of important states’ ratification of cor- responding obligations reinforces their normative claim to reaching the status of cus- tomary international law.

778 United Nations, Status of Treaties, http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&id=372 &chapter=18&lang=en (last visited on October 20, 2008).

CHAPTER III Domestic Criminal Due Process Guarantees: A Case Study of the United States of America

A. Overview

The section below discusses the domestic guarantees of due process, which came into being long before those guarantees were recognized in international law. Even when we look at the history of the drafting of Article 14 of the ICCPR, we come across the fundamental role played by the United States, whose constitutional history with the Fifth Amendment of 1791 and the Fourteenth Amendment of 1868, as well as with the Sixth and Eighth Amendments of 1791, has constantly been centered on the criminal procedure (and later, administrative law) guarantee of the due process of law.� The U.S. constitutional guarantees, its Bill of Rights and its extensive case law, will represent the model of a country’s legal system in which the liberty of the person denotes the identity of the nation. The American Constitution, in the majestic prose of the Fifth Amendment, stated that no person shall be “deprived of life, liberty, or property, without due process of law.”� In the post-Civil War Fourteenth Amend- ment, this guarantee was extended, in virtually identical language, to the States of the Union.� While not necessarily original – the essential idea can be traced back to foundational rights documents such as the Magna Carta of 1215,� King Edward III’s statute of 1354,� the English Bill of Rights of 1689,� as well as the Virginia Declaration

1 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Com- mentary (2nd revised ed., 2005), at 305, para. 1.

2 “[N]or [shall a person] be deprived of life, liberty, or property, without due process of law;” U.S. Constitution, Amendment V (1791).

3 “[N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.” U.S. Constitution, Amendment XIV (1868), Section 1.

4 For details on the Magna Carta, see supra Chapter I, notes 26-31. 5 See supra Chapter I, at note 31. 6 See English Bill of Rights 1689: An Act Declaring the Rights and Liberties of the Subject

and Settling the Succession of the Crown, available at http://www.webmesh.co.uk/eng- lishbillofrights1689.htm. This bill, whose structure is similar to today’s resolutions and declarations, inter alia, prohibits inflicting cruel and unusual punishments, and asks for independence of the judiciary in trials of serious offenses: “jurors ought to be duly impan-

168 Chapter III

of Rights of 1776� –, the concept of due process of law in its interpretation by the fed- eral judiciary proved not only to become a most consequential Constitutional rule in the U.S., but it was adopted by constitution-makers and legislators around the world, and acknowledged by courts of many countries� as a legal principle of relevance and authority. Within the dynamic of the common law,� the judges, who interpret the

elled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.” Id.

7 See Virginia Declaration of Rights, June 12, 1776, supra Chapter I, note 26. Its sections VIII-XI enumerate several elements that constitute the due process. “That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusa- tion to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous con- sent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.” Id., section VIII. Available at http://avalon.law.yale.edu/18th_century/virginia. asp.

8 Anthony Lester QC, The Overseas Trade in the American Bill of Rights, 88 Colum. L. Rev. 537, 543 (1988). It is interesting to note here that Justice Frankfurter, when advising B.N. Rao during the process of the framing of the Indian Constitution, he suggested that India should not include the due process clause because “the power of review implied in the due process clause was not only undemocratic (because it gave judges the power of vetoing legislation enacted by the representatives of the nation) but also threw an unfair burden on the judiciary.” Consequently, due process was not included in article 22 of the Indian Constitution which provides certain guarantees in case of arrest and detention, but it was replaced with the phrase “except according to procedure established by law.” Later on, a number of cases before the Supreme Court of India in the 1950s and ‘70s proved that the omission of the due process clause did interfere with the rights of the citi- zens of the largest democracy in the world. This caused the Court in the Maneka Gandhi Case to introduce the “requirement of reasonable, fair and just procedure,” bringing in the concept of due process in order to provide greater protection for the personal liberty and life of Indian citizens. Id. at 544-546.

9 It is also important to actually note the dynamics of the common law as it relates to its adversarial system of justice in contrast to the inquisitorial or investigative system of civil law jurisdictions. The rules of evidence as well as the cross-examination of witnesses of the adversarial system account for a strong belief among common law proponents that it is more likely for the trier of fact to discover the truth through the clash of adversaries. However, controversy on this issue exists even among those educated in the common law. See Hurst Hannum, Materials on International Human Rights and U.S. Criminal Law and Procedure 80-81 (1989), quoting Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031, 1035-37(1975): “We proclaim to each other and to the world that the clash of adversaries is a powerful means for hammering out the truth…Despite our untested statements of self-congratulation, we know that oth- ers searching after facts-in history, geography, medicine, whatever-do not emulate our adversary system. We know that most countries of the world seek justice by different routes. What is much more to the point, we know that many of the rules and devices of adversary litigation as we conduct it are not geared for, but are often suited to defeat, the development of truth.”

169Due Process in Peacetime: U.S. Law

law, but at times also make law, at least in cases of first impression, have sometimes expanded and at other times restricted�0 the doctrine of due process, because of the necessity imposed by new situations and changes of local standards or social atti- tudes towards it. At the same time, several propositions have been concerned with the issue of how to apply the rights conferred in the amendments: literally, narrowly, according to the semantics of the words originally used, or in a wider sense, embrac- ing the intent and the spirit of law.�� With the latter perspective in consideration,�� the Supreme Court has held that the prohibition of the deprivation of liberty without due process is not confined only to the specific liberties noted in the Bill of Rights, but ex- tends to, and protects, all rights ranked as fundamental.�� It thus created a distinction between procedural and substantive due process, with the latter guaranteeing not procedural rights, but substantive rights which could be taken away only when com- pelling governmental interests so require and when the means chosen to restrict that right were narrowly tailored to achieve the governmental objective.�� Other rights relevant to the criminal justice process include: The Fourth Amendment’s prohibi- tion against unreasonable searches and seizures;�� the Fifth Amendment with guar- antees of indictment by grand jury, protection from double jeopardy, protection from self-incrimination, and the guarantee of due process; the Sixth Amendment�� with its

10 E.W. Thomas, The Judicial Process: Realism, Pragmatism, Practical Reason- ing and Principles 3 (2005). Thomas goes on opining that judicial law-making is not a monopoly of only “progressive judges, but [it] embraces the judiciary as a whole.” For that reason judges should be directed by “a judicial philosophy that is articulated and transparent” and their law-making should “be justified by sound legal theory.” Id. at 4.

11 J.G. Riddall, Jurisprudence 188 (1999). 12 Supreme Court Justices, especially those of the Warren Court, have often been accused

of undue “activism,” of infusing their own social or political views, their personal sense of right or wrong, into the interpretation of open-ended Constitutional terms such as “due process” or “equal protection.” Technically, such choices of interpretation, as long as they remain such, may be difficult to avoid. Also, as revered Chief Justice John Marshall stated in McCulloch v. Maryland, “we must never forget it is a constitution we are expounding,” 17 U.S. 316, 407 (1819) – a living document reflecting the changing structure and needs of society.

13 Riddall, supra note 11, emphasizing the natural law underpinning of this reasoning. 14 This judicial review of impairments of fundamental rights is referred to as “strict scru-

tiny.” A prime example of such “substantive due process” rights is the right to privacy, developed in case-by-case analysis since Griswold v. Connecticut, 381 U.S. 479 (1965). Others include the right to marry, Zablocki v. Redhail, 434 U.S. 374 (1978), and the right to live together as a family, Moore v. East Cleveland, 431 U.S. 494 (1977).

15 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describ- ing the place to be searched, and the persons or things to be seized.” U.S. Constitution, Amendment IV (1791).

16 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been commit-

170 Chapter III

rights to a speedy and public trial, the proper notification of charges, the confronta- tion of witnesses and other important guarantees such as impartiality of the jury and effective assistance of counsel;��and the Eighth Amendment banning excessive bail, excessive fines and cruel and unusual punishment.�� The language of the Ninth Amendment that “[t]he enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people,” reveals that the framers of the Constitution believed in more fundamental rights than those enu- merated in its text. Thus the liberty of the individual and the protection of his rights would be particularly vulnerable to government power�� and official capriciousness, if the procedural fairness, so uncompromisingly required by due process,�0 was not to be meticulously observed. Is it so observed? What is the rule in the law of due process, and what are the exceptions to the rule in the United States?

All steps in the U.S. process of criminal justice engage, in one form or another, a balancing between the needs of society to enforce its core beliefs through the crimi- nal law and the interests and human dignity concerns of the individual accused of violating such laws. In the federal system, which has to respect all the guarantees of the U.S. Bill of Rights, those steps are, generally speaking, the following: A crime comes to the attention of the authorities, through either it being reported to them or them finding out about it. An investigation ensues, which may lead to the arrest of a suspect and the booking, i.e. photographing and fingerprinting of that individual, as well as a review by the magistrate. Further investigation follows, which may lead to the decision to charge the individual and the filing of a complaint. After the first ap- pearance and a preliminary hearing, a grand jury review may take place, which may lead to the filing of an “indictment” or “information.” An arraignment may take place on the information or indictment, and, after certain pre-trial motions are dispensed

ted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assist- ance of Counsel for his defence.” U.S. Constitution, Amendment VI (1791).

17 Though not operative any longer according to the terms it was formulated, the almost archaic Seventh Amendment provides that: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” U.S. Constitution, Amendment VII (1791).

18 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Constitution, Amendment VIII (1791).

19 The power of government is particularly daunting in the system of criminal justice as it enforces the substance of criminal law by having the exclusive power and the legitimate authority to accuse, prosecute and punish individuals. In this inherent imbalance be- tween the government and the individual, restraining the government power through due process guarantees remains the only redress, the only mitigation.

20 This claim of Justice Robert Jackson in Shaughnessy v. United States, 345 U.S. 206, 224 (1953), remains per se unchallenged, despite the bumps in the road of due process. See David J. Bodenhamer, Fair Trial: Rights of the Accused in the American His- tory 4 (1992).

171Due Process in Peacetime: U.S. Law

with, the trial may be held. If it results in a conviction, sentencing will follow. Ap- peal and post-conviction remedies complete the process of criminal justice.�� These phases will be addressed seriatim.

In the investigational phase, in terms of constitutional ramifications, the Fourth Amendments’ prohibition against unreasonable searches and seizures is of para- mount importance. So is the exclusionary rule developed by judges as a balancing test for constitutional rights protected by the Forth Amendment. The exclusionary rule came into being as a mechanism needed to give meaning to the constitutional protections, to remedy the violations of the rights of the accused. Excluding evidence extorted in violation of the constitutional guarantees was deemed to be the better solution compared to the only other way to remedy a violation: bring charges against the police officer. The exclusionary rule will be discussed in more detail in a later section.

B. Due Process before Trial

1. The Prohibition against Unreasonable Search and Seizure

Once police or prosecutorial authorities are apprised of a possible criminal act, usu- ally their investigative machinery is set in motion directed toward getting to the bot- tom of the truth about what happened and who was legally responsible for it. In this search for the truth, zones of privacy of persons, whether suspects or not in the alleged crime, may need to be infringed upon, upon showing of probable cause. Wit- nesses may be asked or even compelled to share their recollection of relevant events, and a person’s property may be searched and seized, i.e. taken in custody by the gov- ernment, and proceeds gained from illegal activity are forfeited.

Like many other governments, the U.S. is limited by its constitution not to ran- domly or arbitrarily invade individuals’ zones of privacy. The place of such restriction is the Fourth Amendment which sets out the rule:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This provision goes back to pre-Independence colonial times and experiences and draws on the maxim “My home is my castle,” elaborated upon in early English deci- sions of the common law.�� One of them, Entick v. Carrington,�� declared a general warrant according to which government agents had raided the home of an associate

21 For a good overview of these “thirteen steps to criminal justice,” see Robert Henley Woody, Search and Seizure: The Fourth Amendment for Law Enforcement Officers 9-13 (2006), with further references.

22 See, e.g., Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). 23 19 Howell’s State Trials 1029, 95 Eng. 807 (1705).

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of a foe of the King and indiscriminately seized charts, pamphlets and other materi- als, defective as subversive “of all the comforts of society.” The seizure of all of a per- son’s papers rather than only those alleged to be criminal in nature was considered to be “contrary to the genius of the law of England.”�� Instead, a good warrant had to be specific rather than general, it had to be issued on a showing of probable cause, and a record had to be made of what had been seized.�� This decision, together with liber- tarian attacks against British general warrants – termed “writs of assistance” – in the Colonies,�� was used by the U.S. Supreme Court in determining the Framer’s intent in interpreting the Fourth Amendment.��

Historically speaking, the Court emphasized that the Fourth Amendment “was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the amendment, therefore, the requirement that ‘no Warrants shall issue but upon probable cause,’ plays a crucial part.”�� However, there are different levels of searching, and limited search without warrant was permissible on a different show of probable cause, such as the articulable suspicion, i.e. a reasoned suspicion. The police thus had to “whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.”�� Thus the two parts of the Fourth Amend- ment (the prohibition of unreasonable searches and the qualifications of a warrant) were tied together. The rule thus was that a valid search depended on a valid warrant, which in turn flows from probable cause. However, there always were exceptions, which were said to be “jealously and carefully drawn.”�0 But, they have recently mul- tiplied in numbers and breadth to such an extent that the warrantless searches have become a matter of practical importance.

One such exception is consent by the owner of the property in question. Police officers do not have to inform the owner or suspect that he or she may refuse to grant such consent. Still, the consent must be voluntary, a criterion determined by the “totality of circumstances.”��

Whether a warrant is necessary, however, when there is no actual physical tres- passing into one’s home, but the information from the home was gathered via wire- tapping or other electronic invasion was controversial when the issue first emerged.��

24 Id. at 817, 818. 25 Id. 26 Compare Oliver M. Dickerson, Writs of Assistance as a Cause of the American Revolu-

tion, in The Era of the American Revolution 40 (Richard B. Morris ed., 1939). 27 Boyd v. United States, 116 U.S. 616, 626 (1886). 28 Chimel v. California, 395 U.S. 752, 761 (1969). 29 Terry v. Ohio, 392 U.S. 1, 20 (1968). 30 Jones v. United States, 357 U.S. 493, 499 (1958). 31 See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). 32 The Supreme Court, in Olmstead v. United States, 277 U.S. 438 (1928), held that wire-

tapping did not fall under the Fourth Amendment, inter alia, because it did not involve actual physical invasion of defendant’s premises.

173Due Process in Peacetime: U.S. Law

Today this issue has been resolved in the affirmative, as the Court, in Katz v. United States,�� recognized that the principal purpose of the Fourth Amendment is the pro- tection of privacy rather than property. The later test thus probes whether there is an expectation of privacy upon which one may justifiably rely.�� The legitimacy of such expectation has now become the battleground of case law. The Court, in this determination, recently appears to use a test which looks first at whether the interest invaded is important or persuasive enough so that a warrant is required to justify it; in cases of lesser expectations of privacy, it looks secondly at the reasonableness of the intrusion. Lately, the Court appears to show more concern for the objectives of law enforcement in justifying such intrusions.��

There is still a bright line, though, with respect to the doorstep of one’s home: whenever governmental authorities step beyond that line, this step must be based on a valid warrant – absent exigent circumstances.�� Such circumstances exist when police reasonably believe that persons in need of assistance are present, that evidence is in imminent danger of being removed or destroyed, or where there is a continuing danger,�� or when in hot pursuit.

A lowered expectation of privacy exists inside of automobiles,�� while the privacy interest in personal luggage and closed containers is substantially higher.��

No ”reasonable expectation of privacy” exists, for example, when an individual has abandoned a particular piece of property – for example, of garbage left outside the confines of the person’s home.�0

Searches of a limited nature are particularly permitted during an investigatory stop or incident to a lawful arrest, as was the case in Terry v. Ohio cited above. The person of a lawfully arrested individual may be searched without a warrant, but case

33 Katz v. United States, 389 U.S. 347 (1967). 34 Id. at 353. Other non-physically intrusive sensing technology is subject to the same rea-

soning. In a recent case, Kyllo v. United States, 533 U.S. 27 (2001), the use by law enforce- ment of equipment to detect and measure heat waves penetrating through the walls of a house (thermal imaging) – indicating possible processing of marijuana – was declared unconstitutional in the absence of a search warrant or probable cause for suspecting criminal activity. Cf. Woody, supra note 21, at 34.

35 Woody, at 26: “[A]s contrasted to certain previous eras when U.S. Supreme Court rul- ings seemed to be more ‘liberal’ or protective of the rights of offenders, the modern trend has seemingly been towards a refinement that provides LEOs [i.e. law enforcement offic- ers] with more guidance and leeway for searches and seizures.”

36 “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.’’ Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212 (1981).

37 Id. 38 Arkansas v. Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United States v. Ross, 456

U.S. 798, 804 -09 (1982). 39 United States v. Chadwick, 433 U.S. 1, 13 (1977). 40 California v. Greenwood, 486 U.S. 35 (1988).

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law varies regarding how far this governmental power may reach into areas within and without the control of the arrestee.�� This leads us to the issue as to whether an individual’s arrest or detention is lawful under the U.S. Constitution.

2. Arrest

Liberty constitutes the root of the American Bill of Rights. It also animates the Dec- laration of Independence in its focus on the pursuit of happiness and preservation of life and liberty. Though the colonies had some protections and rights, long before the Declaration of Independence, John Adams, perceiving the helplessness of the individual in front of the arbitrary power of the government, noted that liberty and security of the person rested solely upon the wisdom and precautions of the legisla- tive and the judiciary, because “[t]hey have no other fortification against wanton, cruel power; no other indemnification, against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds; no other de- fense against fines, imprisonments, whipping posts, gibbets, bastinadoes and racks.”�� As the touchstone of the Anglo-American jurisprudence, procedural due process laid out pre-determined rules for the deprivation of one’s liberty and for the trial of cases. The notion of liberty would normally exclude the arbitrariness of arrest and detention. Historically, however, it seems that the powers of arrest and detention have been the most abused ones. The U.S. Constitution in its Fifth and Fourteenth Amendment protects the right to liberty of a person, and the U.S. courts have been continuously struggling over the meaning of this concept without agreeing on a final authoritative interpretation of this “broad and majestic term.”�� There is, however, no objection to the statement that the term, above all, means freedom from physical restraint. This brings to the fore the question of arbitrariness and lawfulness of an arrest and/or detention. There is some discussion regarding the issue of the essence of the term arbitrary. Most commentators hold the view that arbitrary is not merely illegal. It includes both procedural and substantive elements, i.e. the arrest and de- tention need not be merely in accordance with the law, but the law per se needs to be compatible with the core of the right to liberty and security of a person.��

41 See Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925).

42 Clarendon, Boston Gazette, January 27, 1766, quoted in Alfredo Garcia, The Fifth Amendment: A Comprehensive Approach 6 (2002).

43 Hurst Hannum, supra note 9, at 18, quoting Board of Regents v. Roth, 408 U.S. 564, 571 (1972).

44 See, e.g., United Nations, Study of the Right of Everyone to be Free from Ar- bitrary Arrest, Detention and Exile, at 5-7. Generally on the idea of protecting the core, or essence, of a right, see Article 19(3) of the German Basic Law, and Article II-112(1) of the Treaty Establishing a Constitution for Europe, part of the Charter of Fundamental Rights which, despite the lack of ratification of the treaty as a whole, is part of European Union law, the acquis communautaire. See Roza Pati, Rights and Their Limits: The Consti- tution for Europe in International and Comparative Perspective, 23 Berkeley J. Int’l. L.

175Due Process in Peacetime: U.S. Law

The place U.S. courts would look for regarding protection against arbitrary arrests in individual cases was, however, primarily the Fourth Amendment. This location in the provision prohibiting, on its face, only unreasonable searches and seizures, goes back to Chief Justice Marshall’s decision in Ex parte Burford,�� and has been established case law ever since.�� Seen as a “seizure” of a person, the Fourth Amend- ment would allow the arrest of a person in a public place without warrant if probable cause existed�� – while a warrant would be needed if a person were to be arrested in his or her home.�� A “seizure” in this sense would occur “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’’�� Thus a formal arrest is not necessary to trigger the requirements of the Fourth Amendment; however, the nature of such more or less brief detentions determines whether it is necessary to show probable cause, which is mandatory in cases of arrest, or only some reasonable and articulable suspicion, in cases of detention.�0

A person properly arrested without warrant, but on probable cause can only be kept in custody if he or she is heard promptly by a magistrate using procedures en- suring a fair and reliable determination of probable cause.�� If the magistrate agreed, however, with the judgment of probable cause, the suspect could be kept in custody and presented to court even if unconstitutionally seized.�� However, under the re- cently developed exclusionary rule, first applied to evidence gathered in violation of

223, 266, 269-270 (2005). As to the German Basic Law article, see also Pati, at 238; as to the Charter provision, cf. Christoph Engel, The European Charter of Fundamental Rights. A Changed Political Opportunity Structure and its Dogmatic Consequences, 7 Eur. L.J. 151 (2001).

45 7 U.S. 448 (1806). 46 See, recently, Giordenello v. United States, 357 U.S. 480, 485-86 (1958); United States v.

Watson, 423 U.S. 411, 416-18 (1976); Payton v. New York, 445 U.S. 573, 583-86 (1980); Steagald v. United States, 451 U.S. 204, 211-13 (1981).

47 United States v. Watson, 423 U.S. 411 (1976). 48 Payton v. New York, 445 U.S. 573 (1980); Steagald v. United States, 451 U.S. 204 (1981); and

Hayes v. Florida, 470 U.S. 811 (1985). 49 United States v. Mendenhall, 446 U.S. 544, 554 (1980) (J. Stewart). According to this case,

seizure “might occur when the citizen is subjected to a threatening presence of multiple LEOs [i.e. law enforcement officers], and/or an LEO displays a weapon, physically touch- es the citizen, or uses language or tone of voice that connotes compliance is compelled.” Woody, supra note 21, at 39. See also Florida v. Royer, 460 U.S. 491 (1983).

50 Adams v. Williams, 407 U.S. 143, 146 -49 (1972); Delaware v. Prouse, 440 U.S. 648, 661 (1979); Brown v. Texas, 443 U.S. 47, 51 (1979); Reid v. Georgia, 448 U.S. 438, 440 (1980); Michigan v. Summers, 452 U.S. 692 (1981).

51 Gerstein v. Pugh, 420 U.S. 103 (1975). 52 Even if the suspect was abducted from a foreign country, in violation of formal extradi-

tion agreements and practices, the so-called Ker-Frisbie doctrine (Ker v. Illinois, 119 U.S. 436, 440 (1886); Frisbie v. Collins, 342 U.S. 519 (1952)), as reaffirmed in United States v. Alvarez-Machain, 504 U.S. 655 (1992).

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the prohibition of unreasonable searches and seizures,�� confessions and other ad- missions, even fingerprints and other physical evidence garnered as a result of an unlawful detention are to be suppressed.�� Only confessions that are obtained in a way that shows that the causal connection between the original unlawful arrest and the verbal evidence that ensued has become too attenuated are no longer tainted and may be used in court.��

3. Pre-Trial Detention and Bail

Detention on remand and bail are other important elements of the fairness of crimi- nal procedure. International standards presume that the accused should be released pending trial.�� Detention thus would be more of an exception than the rule. How- ever, the guarantees to appear for trial as well as such dangers as the repetition of the offence, the suppression of evidence, interference with the witnesses, the nature of the offence and the “wickedness” of the accused are all to be considered legitimate concerns on the part of domestic courts when considering pre-trial detention and the imposition of more severe conditions of release.�� Bail is determined, inter alia, on the basis of risk of flight, or probable danger to community.

In the U.S., the Eighth Amendment does not establish a right to release or to bail per se, though it prohibits excessive bail. However, under aggravated circumstances no bail would be excessive. Viewed historically, for U.S. courts the main problem was to impose conditions that would merely guarantee the accused’s appearance for tri- al.�� However, fear of crime and growing concerns for lack of standards in such deter- minations brought about a more stringent set of rules known as the Bail Reform Act of 1984, amended several times afterwards. This Act allowed for denial of bail if the government would be able to prove that the released person could endanger the life

53 The landmark case is Mapp v. Ohio, 367 U.S. 643 (1961). For further discussion of the exclusionary rule, see infra, at notes 96 et seq.

54 Wong Sun v. United States, 371 U.S. 471 (1963), also called an application of the “fruit of the poisonous tree” doctrine. See also Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687 (1982).

55 In considering a suspect’s “intervening act of free will,” Wong Sun v. United States, 371 U.S. 471, 486 (1963), courts may consider the amount of time passed between the arrest and the confession, the flagrancy and intentionality of police conduct, consultation with others, etc. The connection between the law enforcement officer’s unlawful conduct and the ultimately obtained evidence must not be so “attenuated as to dissipate the taint.” Id. at 487. See also Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982).

56 See ICCPR Article 9(3), providing that “it shall not be the general rule that persons await- ing trial shall be detained in custody…”

57 See Neumeister v. Austria, App. No. 1936/63, ECtHR, Judgment of 27 June 1968, Ser. A, No. 8, at 39, 40. Also see generally supra Ch. II.A on international guarantees.

58 Hannum, supra note 9, at 30.

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or safety of others.�� This act added the element of dangerousness, which was going to be proved by clear and convincing evidence, as a criterion in determining bail or de- tention, and excluded the presumption of release in cases where capital punishment or a sentence longer than ten years were at stake, where the accused had a repeated track of the offence, as well as in cases dealing with violent crimes and some drug offences.�0 Perceived dangerousness as a motive for preventive detention brought about a sharp constitutional debate,�� particularly as it relates to the presumption of innocence, and this issue came to be addressed by the Supreme Court in the case of United States v. Salerno.�� The Court ruled that the practice of pretrial detention based on dangerousness was constitutional: a legitimate regulatory function and not a punishment, thus upholding the constitutionality of the Act itself as not violating due process.�� Interestingly though, the Court “intimate[d] no view as to the point at which detention in a particular case might become excessively prolonged”�� thus potentially bringing about a violation of due process. Naturally, the pre-trial deten- tion can also be considered under the light of the constitutional right to a speedy trial, which is another potential defense to be invoked. Additionally, while the provisions of the Constitution obligate states to hold to these minimum standards, states might provide better protections than the constitutional guarantees.�� The Salerno Court

59 See Bodenhamer, supra note 20, at 136 (1992). 60 See for more details the Bail Reform Act in The Comprehensive Crime Control Act of

1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984), codified at 18 U.S.C. paras. 3141-3150, 3156 (1988 Supp.). See also Allen Daniel Applebaum, As Time Goes By: Pre-Trial Incarceration Under the Bail Reform Act of 1984 and the Speedy Trial Act of 1974, 8 Cardozo L. Rev. 1055 (1987).

61 See John S. Goldkamp, Danger and Detention: A Second Generation of Bail Reform, 76 J. Crim. L. & Criminology 1 (1985); Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 Mich. L. Rev. 510 (1986). However, even before the Bail Reform Act of 1984, the Supreme Court had upheld the constitutionality of detention based on the likelihood of flight. See Bell v. Wolfish, 441 U.S. 520, 533–34 (1979).

62 United States v. Salerno, 481 U.S. 739 (1987). 63 Justice Rehnquist observed that the due process requirements were met by the Act be-

cause it provided for expedited procedures. He also added that the state had a strong interest in detaining individuals that presented a real threat to the community. See Han- num, supra note 9, at 31.

64 United States v. Salerno, supra note 62, at 747 n.4. 65 This deferential approach of the Supreme Court regarding excessive detention in the

Salerno Case did not prevent the arrestee or detainee from enjoying the protection from prolonged detention. Several Circuit Courts held that this issue had to be decided on a case by case basis considering all circumstances. See United States v. Frisone, 795 F. 2d 1 (2d Cir.1986), where the Court of Appeal for the Second Circuit found the pretrial detention for 12 months to be unconstitutional. But see United States v. Infelise, 934 F. 2d 103 , 104 (7th Cir. 1991), where the Court noted that absent a showing of government culpability, no amount of time in detention, by itself, can constitute a due process viola- tion. See also United States v. Tortora, 922 F.2d 880, 889 (1st Cir. 1990); United States v.

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also rejected the argument that the Act violated the Eighth Amendment prohibition of excessive bail.

This decision did not seem to convince those who did not believe in making im- prisonment of the legally innocent until proven guilty acceptable by simply calling it a regulation. The issue of the definition of dangerousness was considered mostly a policy judgment, it was not based on an empirical assessment.�� The U.S. Supreme Court had ruled on the likelihood of danger or substantial risk or demonstrated dan- ger, but not on issues of magnitude, harm or the necessary probability of the outcome that would provide the justification for detaining an accused for being dangerous. Nevertheless, the courts have recognized that “[p]retrial detention is still an excep-

Hare, 873 F.2d 796 , 799 (5th Cir. 1989), where the court noted that in determining pretrial detention the judicial officer should consider factors like the seriousness of the charges, the strength of the government’s case, the risk of flight or threat to the community. In addition, “the length of detention that has in fact occurred or may occur in the future, the non-speculative nature of future detention, the complexity of the case, and whether the strategy of one side or the other occasions the delay” are all to be considered, and the Court remanded because the magistrate failed to consider all these factors; see also United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986). In United States v. Gelfuso, 838 F.2d 358, 359 (9th Cir. 1988), the Court focuses the due process discussion on “the length of confinement in conjunction with the extent to which the prosecution bears responsi- bility for the delay.” In United States v. Ojeda Rios, 846 F. 2d 167, 169 (2d Cir. 1986 ), the Court held that due process required release of a defendant who had spent thirty-two months in pretrial detention and whose prolonged trial was still several months away. Although it noted that some of the delay resulted from the defendant’s overzealousness, the court observed that, “[o]n the other hand, the government has been reluctant to agree to a severance.” For more on such cases and other issues related to the Act, see Federal Judicial Center, The Bail Reform Act of 1984 (2nd ed. 1993), available at http:// www.fjc.gov/.

66 Dangerousness was not considered to be a medical or a psychiatric diagnosis. Moreover, it is always considered difficult to predict accurately who will commit a violent crime, be- cause even clinical assessments of violent behavior rarely exceed 50% accuracy, according to Monahan. See The Clinical Prediction of Dangerousness: An Interview with John Mona- han, Currents in Affective Illness, Vol X, June (1991), see also J. Monahan, The Clinical Prediction of Violent Behavior 47-49 (1981). This had also been reflected in the case of Barefoot v. Estelle, 463 U.S. 880 (1983) where the American Psychiatric Association filed an amicus curiae brief with the Court stating that psychiatric predic- tions of future dangerousness are unreliable and incorrect two out of three times in the U.S., concluding that “[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession.” The Supreme Court ruled that such testimony is not always incorrect and expressed faith in the adversary process (and juries) to know the difference by stating that the Court is “unconvinced . . . that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness.” Available at http://caselaw.lp.findlaw. com/scripts/getcase.pl? navby=search&court=US&case=/us/463/880.html (last visited on October 21, 2006).

179Due Process in Peacetime: U.S. Law

tional step,” not the rule,�� and that before deciding on detention the courts have to first consider all reasonable less restrictive options.��

4. Pre-Trial Investigation a. The Privilege against Self-Incrimination From the perspective of the accused, one of the most important protections against an overreaching government is the Fifth Amendment protection against self-in- crimination.�� As a common law right, this privilege of the accused derives from the maxim nemo tenetur seipsum accusare.�0 This right appears to be in conflict with the desired confession of the guilt, this “queen of proofs in the law,”�� the guilt that the system of justice is supposed to be concerned to establish. When we consider that in the accusatorial justice system the burden of proof lies with the prosecution, who has to prove guilt beyond a reasonable doubt, admitting confession as evidence ap- pears to make the trial superfluous, for so long as the confession is trustworthy. To ensure this, the confession needs to be, first and foremost, voluntary, but also entered knowingly and intelligently. In Bram v. United States,�� the Court established that the admissibility of a confession as evidence depended upon whether it was compelled within the meaning of the Fifth Amendment. For the confession to be admissible, it had to be “free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.”�� Since 1936, in Brown v. Mississippi,�� the Court refined the test of the voluntariness of confessions on the basis of the Fourteenth Amendment due process clause, noting that a trial based solely on confessions vio- lates the Constitution’s fair trial guarantee. As the Fifth Amendment guarantees for everyone not to “be compelled in any criminal case to be a witness against himself,”

67 See United States v. Torres, 929 F. 2d 291, 292 (7 th Cir. 1991), citing United States v. Salerno, 481 U.S. 739 , 749 (1987); United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990) noting that “only in rare cases should release be denied.”

68 18 U.S.C. § 3142 (e). See United States v. Song, 934 F.2d 103, 105 (7th Cir. 1991). The court decided on remand because the defendants had proposed electronic surveillance anklets as an alternative to detention, and the trial court had failed to consider whether that was a reasonable alternative.

69 “… [N]or shall [any person] be compelled in any criminal case to be a witness against himself …” U.S. Constitution, Amendment V (1791).

70 Latin for: no one is bound to accuse himself (Garcia, supra note 42, at 15). At the time of its ratification, the clause on self-incrimination seems to have meant to grant protection only to witnesses who testified at trial, and that was obviously at odds with the practice of that time, whereby defendants could not testify at trial. Id at 16.

71 Hopt v. Utah, 120 U.S. 430, 584 (1887). Cf. Confessio est regina probationum, infra, note 158.

72 Bram v. United States, 168 U.S. 532 (1897). 73 Id. at 542-543. 74 See generally Brown v. Mississippi, 297 U.S. 278 (1936).

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it preserves the accusatorial system of criminal justice, safeguards the integrity of the judicial system, and also shields personal privacy against unwarranted governmen- tal intrusion.�� However, the privilege gained its full meaning only when the lawyers had their role validated in courts, when they were speaking for the accused.�� The privilege protects against compulsion of “testimonial’’ disclosures only,�� though the Court takes pains in applying the difficult distinction between testimonial and physi- cal evidence. The privilege can be claimed in any proceeding where a testimony by the accused is legally required and his or her answer could potentially be used against him or her either in that proceeding or in a future criminal proceeding, or it might be used to uncover other evidence against him or her.��

75 In arguing some of its earlier cases, the Supreme Court used to base the privilege of protection from self-incrimination on a certain set of values. Thus in the case of Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1954), the Court states that the privilege against self-incrimination “…reflects many of our fundamental values and most noble aspira- tions; our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,…’; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ …, our distrust of self- deprecatory statement; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the inno- cent.’”

76 See John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. Chi. L. Rev. 263, 307- 311 (1978); John Langbein, The Historical Origins of the Privilege Against Self-Incrimina- tion at Common Law, 92 Mich. L. Rev. 1047, 1050-1054 (1994); Eben Moglan, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1091-1094 (1994).

77 For example, requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, finger- prints, or blood does not compel him to incriminate himself within the meaning of the clause. See California v. Byers, 402 U.S. 424 (1971), where requiring any person involved in a traffic accident to stop and give his name and address was considered not to involve testimonial compulsion and therefore the privilege was inapplicable, id. at 431-434. Also see South Dakota v. Neville, 459 U.S. 553 (1983), where the Court indicated that a State may compel a motorist suspected of drunk driving to submit to a blood alcohol test, and if the suspect would refuse to do so, his refusal could be used as evidence against him. The Court rested its evidentiary ruling on the absence of coercion, preferring not to ap- ply the sometimes difficult distinction between testimonial and physical evidence. In the case of Pennsylvania v. Muniz, 496 U.S. 582 (1990), which involved roadside videotaping of a drunk driving suspect, the Court found that the slurred manner of the suspect’s speech, as well as his answers to routine booking questions as to name, address, weight, height, eye color, date of birth, and current age, were not testimonial in nature.

78 The privilege may be claimed by a defendant or a witness in a criminal trial, including a juvenile proceeding, In re Gault, 387 U.S. 1, 42 -57 (1967), by a witness in a civil court

181Due Process in Peacetime: U.S. Law

In applying the privilege against self-incrimination, the Court does not permit prosecutorial or judicial comment to the jury when a defendant refuses to take the stand in his own behalf. Such comment would be a “penalty imposed by courts for exercising a constitutional privilege.”��

It also applies to other situations, such as the time of arrest and during the police interrogation of suspects, where they are asked though they have no legal obligation to speak.�0 One must explicitly claim one’s privilege or one will be deemed to have waived it. This discussion brings us to one of the most conspicuous and well-known features of U.S. criminal procedure related to the rights of the suspect that are man- dated under the Fifth Amendment, i.e. the Miranda warning.��

b. Miranda The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights, but it gave certain guidelines expressed as follows in its ruling: “In the absence of other effective measures the following procedures to safe- guard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”�� The Court went on reiterating that: “If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present.”�� It is important to note that Miranda attaches to custodial interrogations, and to ones out of custody. If the officer fails to clearly inform the person in custody of his rights,

proceeding, McCarthy v. Arndstein, 266 U.S. 34 (1924), by a potential defendant or any other witness before a grand jury, Reina v. United States, 364 U.S. 507 (1960); Counsel- man v. Hitchcock, 142 U.S. 547, 563 (1892), except in the circumstances modified by use immunity or derivative use immunity, Kastigar v. United States, 406 U.S. 441 (1972). The privilege can also be invoked by a witness before a legislative inquiry, Watkins v. United States, 354 U.S. 178, 195 -96 (1957); Quinn v. United States, 349 U.S. 155 (1955); Emspak v. United States, 349 U.S. 190 (1955), or even before an administrative body. In re Groban, 352 U.S. 330, 333 , 336-37, 345-46 (1957); ICC v. Brimson, 154 U.S. 447, 478 -80 (1894). Above cases noted in Self Incrimination, available at http://caselaw.lp.findlaw.com/data/ constitution/amendment05/07.html#f177.

79 See Griffin v. California, 380 U.S. 609, 614 (1965). The Griffin rule continues to apply when the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence. Also, a prosecutor cannot impeach the trial testimony of a defendant by exploiting the fact that upon his arrest and receipt of a Miranda warning the defendant remained silent and did not give the police the exculpatory story he told at trial, see Doyle v. Ohio, 426 U.S. 610 (1976).

80 Miranda v. Arizona, 384 U.S. 436 (1966). 81 Id. 82 Id. at 467-473. 83 Id. at 473-474.

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the statement will be inadmissible because of the exclusionary rule. Also, as a matter of practice invoking the right to remain silent does stop the interrogation momen- tarily, but at the discretion of the officer, it may restart again after a while, and then all over again. The real effectiveness of the privilege becomes visible when the person in custody asks for an attorney. In such cases, interrogation really stops until attorney is present, because statements will be otherwise considered tainted and consequently inadmissible under the exclusionary rule. Every U.S. jurisdiction has its local rules. However, such warnings read more or less the same mirroring the above.

The Miranda warning has been considered by some scholars as a strong antidote to the voluntariness standard which was deemed to be intractable,�� and by some oth- ers as affording less putative safeguards than the old voluntariness test.�� While the substance of it is pretty much in conformity with the international standards,�� the latter rules lack the precision and the technicality of Miranda. Believed to be a logical development of the due process doctrine,�� Miranda has also gone through more or less stringent permutations. In 1986, the Court arguably went against the spirit and letter of the Miranda case. The Rehnquist Court in Colorado v. Connelly,�� in argu- ment on the admission of a confession that did not reflect the exercise of free will,

84 George C. Thomas III & Richard A. Leo, The Effects of Miranda v. Arizona: Embedded in Our National Culture, 29 Crime & Just. 214 (2002). The authors have observed that in order to determine the criterion of voluntariness there was a need for inquiry into the metaphysical states of mind, which at that time were considered to be inherently unknowable.

85 Garcia, supra note 42, at 86. Professor Garcia considers the Miranda warning a “useful adjunct to law enforcement,” a way “to sanitize an otherwise coerced confession,” and suggests eliminating Miranda warnings altogether and to resort to the old voluntariness standard. Id., at 86, 115-119. Other opponents have suggested that taping the interrogation sessions would bring an end to the conflicting claims of the defendant and the police re- garding the “voluntariness” of the confession. See Paul Cassell, Miranda’s Social Costs: An Empirical Assessment, 90 Nw. U. L. Rev. 387 (1996), at 488. See also Richard Uviller, Tempered Zeal 189 (1988), and Richard Uviller, Virtual Justice (1996), where at 124 he writes: “Most people I have spoken to say the warnings have become largely an empty ritual, embarrassing to cops and superfluous to suspects.” Quoted in Garcia, supra note 42, at 118-119.

86 See ICCPR Article 9(2), ECHR Article 5(2), IACHR Article 7(4). 87 See Catherine Hancock, Due Process Before Miranda, 70 Tul. L. Rev. 2195 (1996), at

2232-2236. 88 Colorado v. Connelly, 479 U.S. 157 (1986). The Court reasoned: “There is obviously no

reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context. The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on ‘free choice’ in any broader sense of the word. There is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.”

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effectively allowed the police to use non-threatening tactics, such as sympathizing with the suspect, in order to get a valid declaration of guilt from the suspect. Later, in Minnick v. Mississippi,�� the Court held that once the suspect requested counsel, no questioning could go on until the lawyer was present. However, there still exists the very rare circumstance of public safety exception to Miranda,�0 which when deemed applicable will not exclude the admission of a confession, even if the defendant has already asked for an attorney.��

Determining the validity of a Miranda waiver has also turned into a great chal- lenge both for the courts and for the defense attorneys. Since any waiver has to be voluntary, knowing and intelligent, it is important, and at the same time could be very difficult, to assess the competency of the person who waives his or her rights; psychological factors in such an assessment have been deemed to be necessary.�� In the case of Dickerson v. United States,�� Miranda came at odds with Section 3501,�� which in its paragraph (a) provides: “In any criminal prosecution brought by the United States or by the District of Columbia, a confession … shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntari- ness.” The focus of inquiry was whether Miranda was a constitutional rule or just an evidentiary standard. The Fourth Circuit had acknowledged that petitioner had not received Miranda warnings, but it had held that Section 3501 was satisfied since his statement was voluntary. It had further concluded that Miranda was not a constitu-

89 In Minnick v. Mississippi, 498 U.S. 146 (1990), the Court stated, “When counsel is re- quested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney… Since Minnick’s interrogation was initiated by the police in a formal interview which he was compelled to attend, after Minnick had previously made a specific request for coun- sel, it was impermissible.” Justice Scalia and Chief Justice Rehnquist dissented, stating: “The Court today establishes an irrebuttable presumption that a criminal suspect, af- ter invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney.” Available at http://caselaw.lp.findlaw. com/scripts/getcase.pl?court=US&vol=498&invol=146 .

90 See New York v. Quarles, 467 U.S. 649 (1984) where the decision was based on the fact that “[t]he prophylactic Miranda warnings … are ‘not themselves rights protected by the Constitution,’ ” id. at 654, as the Court created a “public safety” exception. “The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.” Id. at 650.

91 Garcia, supra note 42, at 114. 92 For an analysis of the inter-relationship of the law of confessions, the Miranda holding

and psychology, see I. Bruce Frumkin & Alfredo Garcia, Psychological Evaluations and the Competency to Waive Miranda, in The Champion (National Association of Crimi- nal Defense Lawyers) 12-23 (November 2003).

93 Dickerson v. United States, 530 U.S. 428 (2000). 94 18 U.S.C.S. §3501.

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tional holding, and that, therefore, Congress could by statute have the final say on the admissibility question. The Supreme Court concluded that Miranda announced a constitutional rule and reasoned that “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress.”�� It thus confirmed Miranda’s reach to State courts.

c. The Exclusionary Rule In the above sections, the implications of the exclusionary rule were visible in several stages of U.S. criminal procedure. International standards as well as the civil law sys- tem of justice do not generally require the exclusion of improperly obtained evidence, in the way that is guaranteed in the U.S. criminal law and procedure. Thus, the juris- prudence of the international and regional systems of human rights protection rarely finds a violation of the right to a fair trial based on improperly obtained evidence.��

In contrast, there is an immense U.S. jurisprudence related to the Fourth Amend- ment as well as other constitutional protections featuring the “exclusionary rule,” through the prohibition against unreasonable searches and seizures, and conse- quently unconstitutionally obtained evidence. The most effective way, it is perceived, to discourage police and other investigative and prosecutorial authorities from ille- gally obtaining evidence is to prohibit its use in trial. Under the “fruit of the poison- ous tree doctrine,” this exclusion of evidence may even reach other evidence obtained by use of the illegally received information. However, only evidence, and its fruits, obtained by the government and its agents are subject to the exclusionary rule. Like in various other respects,�� compared to the universal system of protection, the pro- cedural guarantees available to the accused are definitely more extensive in the U.S. evidentiary rules.

In the case of Weeks v. United States,�� the U.S. Supreme Court established the exclusionary rule in 1914 on the federal level on the basis of the Fourth Amendment.

95 Id. at 432. The Court further reasoned: “Given §3501’s express designation of voluntari- ness as the touchstone of admissibility, its omission of any warning requirement, and its instruction for trial courts to consider the totality of the circumstances surrounding the giving of the confession, this Court agrees with the Fourth Circuit that Congress in- tended §3501 to overrule Miranda. The law is clear as to whether Congress has constitu- tional authority to do so. “This Court has supervisory authority over the federal courts to prescribe binding rules of evidence and procedure.” Id. at 437. Following the rule of stare decisis the Court declined to overrule Miranda noting: “The requirement that Miranda warnings be given does not dispense with the voluntariness inquiry, but cases in which a defendant can make a colorable argument that a self-incriminating statement was com- pelled despite officers’ adherence to Miranda are rare.” Id. at 444.

96 See Hannum, supra note 9, 96-99. However, international norms do guarantee certain protection through mandating the right to privacy and to respect for private life. See discussion supra.

97 Some of them being fundamental only in the U.S. system of criminal justice, such as the full scope of the prohibition against self-incrimination, right to trial by jury, plea bargain- ing, use of the exclusionary rule.

98 232 U.S. 383 (1914).

185Due Process in Peacetime: U.S. Law

It was extended to the states in 1961 in Mapp v. Ohio�� through incorporation of the Fourth in the Fourteenth Amendment’s due process clause. It has always been subject to limitations and exceptions.

As in the arrest cases mentioned above,�00 evidence will only be suppressed if there is a clear causal connection between illegal police activity and the evidence. Factors sufficiently attenuating that causal link are the time passed between the illegal action and the obtaining of the evidence; intervening events; and the purposefulness and flagrancy of the official misconduct.�0� Also, the exclusionary rule does not apply if regular police operations would, to a very high degree of probability, inevitably have led to discovery of the evidence.�0� The rule also is not applied if knowledge of the evidence is gained from an independent source completely unrelated to the official misconduct.�0� Lastly, a good faith exception, with various exceptions to itself, was created in 1984 in U.S. v. Leon.�0�

The exclusionary rule was dealt a heavy blow by the majority of the new Rob- erts Court in Hudson v. Michigan, a case decided over a vigorous dissent on June 15, 2006. It involved the violation of a rule that required police to knock at the door of a suspect’s home and announce themselves before entering. In declining to suppress the evidence gained from a violation of this rule, the Court stated: “Suppression of evidence … has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs’ … which sometimes include setting the guilty free and the dangerous at large. We have therefore been cautious against expanding” it, and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application. … We have rejected ‘indiscriminate application’ of the rule, … and have held it to be applicable only ‘where its remedial objectives are thought most efficaciously served’” – that is, “where its deterrence benefits outweigh its ‘substantial social costs.’”�0�

The Court thus separated the issues of a violation of the Fourth Amendment by police conduct from the “exclusionary sanction,” and found that the benefit of deter-

99 367 U.S. 643 (1961). 100 See supra notes 45-55, re search and seizure, particularly in Wong Sun v. United States,

371 U.S. 471, 486 (1963), and other cases mentioned in notes 54-55. 101 People v. Martinez, 898 P. 2d 28, 33 (Colo. 1995). 102 Nix v. Williams, 467 U.S. 431 (1984). This exception was limited to the admission of sec-

ondary, not primary evidence, in People v. Stith, 69 NY2d 313 (1987). 103 People v. Arnau, 58 N. Y. 2d 27, 32-33 (1982). 104 468 U.S. 897 (1984). It had to do with exception for evidence obtained as a result of of-

ficers’ objective, good-faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. For an analysis of the modification of the exclusionary rule with the “good faith” exception, see Jeremy M. Miller, The Good Faith Exception to the Exclusionary Rule: Leon and Sheppard in Context, 7 Criminal Justice Journal (1984). See also Kenneth C. Halcom, Illegal Predicate Searches and the Good Faith Excep- tion, 2007 U. Ill. L. Rev. 467 (2007).

105 547 U.S. 586, 126 S. Ct. 2159, 2163 (2006).

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ring police conduct violative of the “necessarily gray” area of the “knock and an- nounce” requirement was outweighed by the costs of applying the exclusionary rule.

Fourteenth Amendment cases on due process also condemned the brutal and vio- lent interrogation techniques that brought about a “substantial risk” of false confes- sions,�0� and illegally obtained evidence.

5. Grand Jury Review

Indictment by a grand jury�0� is constitutionally prescribed only for federal criminal charges, though about half of the states also use grand juries.�0� Its main function is accusatory: to return criminal indictments by reviewing the evidence presented by the prosecutor and determining whether there is probable cause,�0� while at the same time protecting citizens against unfounded criminal accusations. However, the grand jury, composed of no less than 16 and no more than 23 common citizens,��0 through federal courts rulings, particularly after the 1950s,��� has developed an extraordinary

106 See generally Yale Kamisar, What is an Involuntary Confession: Some Comments on Inbau and Reid’s Criminal Interrogation and Confessions, 17 Rutgers L. Rev. 728 (1963). See also Welsh S. White, What is an Involuntary Confession Now, 50 Rutgers L. Rev. 2001 (1998).

107 “The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders…The basic purpose of the Eng- lish grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.” Costello v. United States, 350 U.S. 359, 362 (1956). See also: “The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking rel- evant history, the grand jury continues to function as a barrier to reckless or unfounded charges . . . . Its historic office has been to provide a shield against arbitrary or oppres- sive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.’’ United States v. Mandujano, 425 U.S. 564, 571 (1976). For the federal requirement of a grand jury, see U.S. Constitution, Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…”

108 See American Bar Association, Frequently asked questions about the Grand Jury system, available at www.abanet.org/media/faqjury.html.

109 Determination of probable cause in issuing an indictment by the grand jury is sometimes seen with suspicion as regards the ability of the grand jury, a body of fellow citizens de- void of legal qualifications. See Andrew D. Leipold, Why Grand Juries Do Not (and Can- not) Protect the Accused, 80 Cornell L. Rev. 260 (1995).

110 Rule 6(a)(1), Federal Rules of Criminal Procedure, available at http://www.law.cornell. edu/ rules/frcrmp/#chapter_iii.

111 This is in total contrast with the first half of the 19th century when opponents of the grand jury reasoned that there was a need for a reform or even abolishment of the grand jury

187Due Process in Peacetime: U.S. Law

investigative function, which is served through the fact that grand juries may sum- mon witnesses by process and compel testimony and the production of evidence generally [such as through use immunity or derivative/ limited use immunity].��� Some scholars have considered this fact as “the equivalent of coerced testimony,” ��� diminishing in this way the privilege against self-incrimination, and firmly remarking that the framers of the Constitution intended that “no amount of evidence could jus- tify compelling a person to supply testimonial evidence against himself in a criminal case.”���

The grand juries operate in secret, a fact which has sometimes raised concerns and led to comparing it with the deliberations of the Star Chamber.��� The grand jury deliberates under the direction of a good faith prosecutor, who in many cases has proved to have an unchecked power over what sometimes has been called a “puppet” grand jury.��� The jurors are not screened for biases; the witnesses are not sworn to secrecy. Grand juries are not bound by many evidentiary and constitutional restrictions; the exclusionary rule is not applicable. Witnesses are not entitled to have counsel present in the room. They might not be informed of the object of the inves- tigation or the place of the witnesses in it, and they may be questioned on the basis of knowledge obtained through the use of illegally-seized evidence. The commission of perjury by a witness is at all times punishable.��� All of the above characteristics

considering it costly, inconvenient and also inefficient. In addition, as Jeremy Bentham put it at that time, the grand jury, this “miscellaneous company of men” and its secret proceedings were considered a threat to the liberty of the person in a democratic society. Bodenhamer, supra note 20, at 59.

112 See details in Indictment by Grand Jury, available at http://www.law.cornell.edu/anncon/ html/ amdt5afrag1_user.html.

113 Garcia, supra note 42, at 152. 114 Albert W. Alschuler, A Peculiar Privilege in Historical Perspective, in R.H. Helmholz et

al., The Privilege Against Self-incrimination: Its Origins and Development 183 (1997).

115 Garcia, supra note 42, at 131. For background on the Star Chamber, see supra Chapter I, note 43.

116 See id. at 155-163, referring to the Clinton impeachment, where Independent Counsel Kenneth Starr subpoenaed Lewinsky in his expansive grand jury investigation.

117 This is irrespective of the nature of the warning given him and despite the fact that he may already be a reputed defendant when called to witness. See United States v. Mandu- jano, 425 U.S. 564 (1976); United States v. Wong, 431 U.S. 174 (1977). Mandujano had been told of his right to assert the privilege against self-incrimination, of the consequences of perjury, and of his right to counsel, but not to have counsel with him in the jury room. Chief Justice Burger and Justices White, Powell, and Rehnquist took the position that no Miranda warning was required because there was no police custodial interrogation and that in any event commission of perjury was not excusable on the basis of lack of any warning. Justices Brennan, Marshall, Stewart, and Blackmun agreed that whatever rights a grand jury witness had, perjury was punishable and not to be excused. Id. at 584, 609. Wong was assumed on appeal not to have understood the warnings given her and the opinion proceeds on the premise that absence of warnings altogether does not preclude

188 Chapter III

have brought about a good deal of criticism��� of the institution of the grand jury time and again. The frustration of defense lawyers over such issues was reflected even in a proposal of a federal grand jury “bill of rights” by the National Association of Crimi- nal Defense Lawyers, which among others would allow criminal attorneys access to the grand jury room.��� Such criticisms would conclude that the grand jury has failed to shield citizens from “arbitrary and oppressive governmental action.”��0 Also, it has been observed that this institution has been constantly manipulated by the Executive Branch.��� The Supreme Court would also sometimes admit that at times the grand jury was not serving its historic purpose of protecting citizens from the “overzealous prosecutor.”���

However, “the grand jury’s subpoena is not unlimited. It may consider incompe- tent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law . . .,”��� such as the marital privilege, lawyer/client privilege, or the privilege against self-incrimination.��� “A grand jury’s subpoena duces tecum [document request] will be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable under the Fourth Amendment.’”���

The indictment by grand jury does not extend “in cases arising in the land or naval forces, or in Militia, when in actual service in time of War or public danger.” Those

a perjury prosecution. See Indictment by Grand Jury, n.9, available at http://www.law. cornell.edu/anncon/ html/amdt5afrag1_user.html.

118 See generally Peter J. Hennings, Prosecutorial Misconduct in Grand Jury Investigation Investigations, 51 S.C. L. Rev. 1 (1999); Alexander J. Menza, Witness Immunity: Uncon- stitutional, Unfair, Unconscionable, 9 Seton Hall Const. L. J. 505 (1999). See also John Gibeaut, Indictment of a System, 87 A.B.A. J. 35 (Jan. 2001).

119 John Gibeaut, at 36. 120 United States v. Calandra, 414 U.S. 338, 343 (1974). 121 Garcia, supra note 42, at164. 122 United States v. Dionisio, 410 U.S. 1, 17 (1972). 123 Hale v. Henkel, 201 U.S. 43, 76 (1906). 124 The Fifth Amendment clause of protection against self-incrimination must be respected.

Blau v. United States, 340 U.S. 159 (1950); Hoffman v. United States, 341 U.S. 479 (1951). See also Blau v. United States, 340 U.S. 332 (1951) (husband-wife privilege); Alexander v. United States, 138 U.S. 353 (1891) (attorney-client privilege).

125 Hale v. Henkel, supra note 123.

189Due Process in Peacetime: U.S. Law

serving in the armed forces��� are subject to court martial rather than grand jury in- dictment or trial by jury.���

6. The Right to Be Clearly Informed of Charges in Indictment or Information

The Sixth Amendment guarantees the right to be informed of the nature and the cause of the accusation. This right is a fundamental element of due process, and all States are required to observe it.��� They first have to have clearly and precisely phrased laws that indicate what is proscribed as criminal conduct. The Court has noticed that in order to “avoid the constitutional vice of vagueness, it is necessary, at a minimum, that a statute give fair notice that certain conduct is proscribed.”���

As to the application of the criminal law in an individual case, the Constitution does not require the prosecution to provide the accused with a written copy of the indictment.��0 However, the offense must be described clearly and accurately in the information or indictment that described the charges he is accused of;��� the defen- dant is usually informed of charges against him at the arraignment. This description will give the accused the opportunity to be able to build his defense properly.

126 The exception’s limiting words “when in actual service in time of war or public danger’’ apply only to members of the militia, not to members of the regular armed forces. In O’Callahan v. Parker, 395 U.S. 258 (1969), the Court held that offenses that are not “serv- ice connected’’ may not be punished under military law, but instead must be tried in the civil courts in the jurisdiction where the acts took place. This decision was overruled, however, in 1987, the Court, emphasizing the “plain language’’ of Art. I, Sec. 8, cl. 14, (“The Congress shall have power to…make rules for the government and regulation of the land and naval forces), and not directly addressing any possible limitation stemming from the language of the Fifth Amendment. “The requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a mem- ber of the armed services at the time of the offense charged,’’ see Solorio v. United States, 483 U.S. 435 (1987), at 450-451. Even under the service connection rule, it was held that offenses against the laws of war, whether committed by citizens or by alien enemy bel- ligerents, could be tried by a military commission, see Ex parte Quirin, 317 U.S. 1, 43 , 44 (1942). Discussion available at http://caselaw.lp.findlaw.com/data/constitution/amend- ment05/01.html#f33 .

127 See Johnson v. Sayre, 158 U.S. 109, 114 (1895). See also Lee v. Madigan, 358 U.S. 228, 232 -35, 241 (1959).

128 See In re Oliver, 333 U.S. 257, 273 (1948). 129 Rabe v. Washington, 405 U.S. 313 (1972). 130 United States v. Van Duzee, 140 U.S. 169, 173 (1891). 131 United States v. Cook, 84 U.S. (17 Wall.) 168, 174 (1872).

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7. The Presumption of Innocence

The presumption of innocence or otherwise proof of guilt beyond a reasonable doubt is a cornerstone of the criminal justice system in the U.S. In In re Winship,��� the Supreme Court noted that “the reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence-that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” For the first time the Court held that “the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”���

8. The Prohibition of Double Jeopardy

The Fifth Amendment also guarantees that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.”��� As stated in Green v. United States,��� “[t]he constitutional prohibition against double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible con- viction more than once for an alleged offense….”��� This provision has been held to

132 397 U.S. 358 (1970). The Court reasoned as follows: “The requirement that guilt of a crimi- nal charge be established by proof beyond a reasonable doubt dates at least from our ear- ly years as a Nation. The demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.”

133 Winship at 364 (emphasis in the original text). See also Ivan V. v. City of New York, 407 U.S. 203, 204;; Lego v. Twomey, 404 U.S. 477, 486 -487; Mullaney v. Wilbur, 421 U.S. 684; Patterson v. New York, 432 U.S. 197; Cool v. United States, 409 U.S. 100, 104.

134 This Fifth Amendment clause speaks of being put in “jeopardy of life or limb,”’ which re- ferred to the possibility of capital punishment upon conviction, however it has been held that it protects with regard “to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute,” Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The clause generally has no application in non-criminal proceedings, see Helvering v. Mitchell, 303 U.S. 391 (1938).

135 355 U.S. 184 (1957). 136 Id. at 187. The Court added: “The underlying idea, one that is deeply ingrained in at least

the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and com- pelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, at 187-188. See also North Carolina v. Pearce, 395 U.S. 711 (1969), where the Court elaborates

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apply fully to federal and state courts alike,��� when the Supreme Court enunciated the due process incorporation theory under which most of the Amendments of the original Bill of Rights apply to the States as well. It is worth mentioning here that the constitutional standards allow retrial if the person has been acquitted of the same crime in another sovereign jurisdiction.��� Such a prosecution would not constitute double jeopardy.��� So, while double jeopardy’s fundamental value is considered to be its “finality,”��0 thus entitling the defendant to “an end point in the criminal justice process,”��� this value of the clause does not seem to be given effect in the context of dual sovereignty, according to which “the federal and state governments, acting in tandem, can generally do what neither government can do alone – prosecute an ordi- nary citizen twice for the same offence.”��� The case of Heath v. Alabama ��� illustrates

that double jeopardy “protects against a second prosecution for the same offence after an acquittal; it protects against a second prosecution for the same offence after conviction. And it protects against multiple punishments for the same offence.” Id. at 717.

137 See Benton v. Maryland, 395 U.S. 784 (1969). In this case, referring to Palko v. Connecticut, 302 U.S. 319, the Supreme Court stated: “The double jeopardy prohibition of the Fifth Amendment, a fundamental ideal in our constitutional heritage, is enforceable against the States through the Fourteenth Amendment.” It also reasoned “‘that the double jeop- ardy prohibition . . . represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the Ameri- can scheme of justice,’ . . . the same constitutional standards apply against both the State and Federal Governments.” Id. at 793-796.

138 International law provides the same standards: prohibition against double jeopardy ap- plies only to prosecutions within a given country. See A.P. v. Italy, Comm. No. 204/1986, Report of the Human Rights Committee, 43 UN GAOR, Supp. (No. 40), U.N. Doc. A/43/40 (1988) at 242. Since international law is applicable both to the States and to the federal government, the United States, in order to mitigate the international standard with its dual sovereignty theory and practice, has attached an understanding to Article 14 (7) of the Covenant on Civil and Political Rights upon its ratification: “The United States understands the prohibition upon double jeopardy in paragraph 7 to apply only when the judgment of acquittal has been rendered by a court of the same governmental unit, whether the Federal Government or a constituent unit, as is seeking a new trial for the same cause.” See United States of America’s Reservations to the ICCPR, available at http://www.internationaljusticeproject.org/juvICCPR.cfm .

139 See United States v. Lanza, 260 U.S. 377 (1922), where the Court stated “‘We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” Id. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v. United States, 318 U.S. 101 (1943).

140 See George C. Thomas III, An Elegant Theory of Double Jeopardy, 1988 U. Ill. L. Rev. 827 (1988).

141 Garcia, supra note 42, at 186. 142 Akhil Reed Amar & Jonathan Marcus, Double Jeopardy Law after Rodney King, 95 Colum.

L. Rev. 1, 2 (1995). 143 Heath v. Alabama, 474 U.S. 82 (1985).

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the irony of such an application. The defendant was convicted to life in prison, after pleading guilty to murder, in Georgia, but was given the death penalty in Alabama for the very same crime. For the Supreme Court, “the conception of crime as an offense against the sovereignty of the government” is the foundation of the dual sovereignty doctrine in the common law. Consequently, quoting from United States v. Lanza, Justice O’Connor explains: “When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two dis- tinct offences.”��� Hence, it is the term offense contained in the Fifth Amendment that becomes the Achilles heel of the provision. Is that same criminal act actually the same offense?��� As per the interpretation of the majority opinion of Supreme Court, it obviously may not be. It is most interesting to note here the dissenting opinion of Justice Marshall. First, he argues that in the case of Nielson v. Oregon,��� the Court, considering competing state prosecutorial interests, had “observed that where an act is prohibited by the laws of two States with concurrent jurisdiction over the locus of the offense ‘the one first acquiring jurisdiction of the person may prosecute the of- fense, and its judgment is a finality in both States, so that one convicted or acquitted in the courts of the one State cannot be prosecuted for the same offense in the courts of the other.’���”��� Then he concludes that Alabama’s relentless prosecution of the pe- titioner could not survive constitutional scrutiny either “as a violation of the Double Jeopardy Clause or simply as an affront to the due process guarantee of fundamental fairness.”��� Scholars followed suit calling this an instance of unimaginable govern- ment oppression,��0 whose avoidance is supposed to be the overriding purpose of the double jeopardy clause.

144 Id. at 88. 145 For an analysis of what the offence is, see Garcia, supra note 42, at 194-203. See also

Akhil Reed Amar, Double Jeopardy Made Simple, 106 Yale L.J. 1807, 1815 (1997), as he argues that this “mess” is a result of the Court’s reluctance to interpret the term “same of- fense” as what it really and literally means, that is “the same offense.” However, it is worth noting in this context, that there could be other occasions that limit the use of double jeopardy, namely the “elements test.” It has to do with conduct that might constitute two offenses at once. Just because the defendant can be tried on one charge, it does not mean that the other charge can be dismissed, because the second might need proof of different sets of elements.

146 Nielsen v. Oregon, 212 U.S. 315 (1909). 147 Id. at 320. 148 Heath v. Alabama, supra note 143, Justice Marshall dissenting, at 100. 149 Id. at 103. He goes on to argue: “Even before the Fourteenth Amendment was held to

incorporate the protections of the Double Jeopardy Clause, four Members of this Court registered their outrage at ‘an instance of the prosecution being allowed to harass the accused with repeated trials and convictions on the same evidence, until it achieve[d] its desired result of a capital verdict.’ Ciucci v. Illinois, 356 U.S. 571, 573 (1958). Such ‘relentless prosecutions,’ they asserted, constituted ‘an unseemly and oppressive use of a criminal trial that violates the concept of due process contained in the Fourteenth Amendment, whatever its ultimate scope is taken to be.’ Id. at 575.” Id. at 103.

150 Garcia, supra note 42, at 211.

193Due Process in Peacetime: U.S. Law

Mistrial concerns within the ambit of double jeopardy have been another area of controversial interpretation by scholars and courts. In United States v. Forn,��� the Court considered the defendant’s interest in solving “his confrontation with society through a verdict of a tribunal” that might acquit him��� and society’s interest in de- termining guilt which does not guarantee “a single proceeding free from governmen- tal or judicial error.”��� This concern for a mistrial is best described in Justice Black’s famous reasoning in Green v. United States:��� “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all of its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrass- ment, expense, ordeal and compelling him to live in the continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty. In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence,’[according to] United States v. Ball, 163 U.S. 662, 671.”��� Many hold the idea that as a practical matter, multiple prosecutions are a rare occurrence.��� One last important issue to note is the timing when double jeopardy attaches. In the trials by jury, double jeopardy attaches when the jury is sworn, whereas at bench trials, it attaches when the first witness is sworn.

9. Plea Bargaining

It is of interest to analyze in this section, prior to the rights in trial, the element of plea bargaining. Characteristic of U.S. criminal procedure, the system of plea bargaining has constantly come under attack by scholars within and outside��� of the United

151 United States v. Forn, 400 U.S. 470 (1971). 152 Id. at 486. 153 Id. at 484. 154 Green v. United States, 355 U.S. 184 (1957). 155 Id. at 187-188. 156 Jimmy Gurulé, The Right to a Fair Trial in United States Law, in The Right to a Fair

Trial, 95, 97 (European Commission for Democracy through Law 2000). Such an exam- ple is the prosecution both in federal and state courts of Terry Nichols who perpetrated the 1995 bombing of the Murrah Federal Building in the Oklahoma City, Oklahoma, kill- ing a total of 168 people. Ibid.

157 John H. Langbein, Torture and Plea Bargaining, in Philosophy of Law 349, 352 (Joel Feinberg & Hyman Gross eds., 5th ed. 1995). In this legal-philosophical treatise, Langbein expresses his disdain for the “spectacle of plea bargaining” in the U.S. as he compares the American law of plea bargaining to the medieval European judicial torture, a law which constituted the heart of European criminal procedure from the mid-thirteenth to the mid-eighteenth century. Drawing parallels between these two laws he discovers that they have striking resemblances in purpose and nature; though coercion in the law and prac- tice of torture is greater than in plea bargaining, nevertheless “the resulting moral quan-

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States. There are several grounds on which plea bargaining is frowned upon, but “the resulting moral quandary,” as Langbein puts it, seems to be the essence of it. Confes- sio est regina probationum,��� this maxim of the medieval Glossators fittingly portrays the American concept of plea bargaining.��� It originated in the late nineteenth cen- tury and started to become visible as a non-trial procedure in the 1920s.��0 Plea bar- gaining is a non-trial procedure which consists of the rendering of a confession by the

dary is the same.” He gives several arguments to support this conclusion. First, the intent of both laws is to safeguard the accused by trying to eliminate the discretion of the trier of fact: the torture law requiring the judge to adhere to objective criteria of proof, and the plea bargaining protecting the accused from the dangers of the jury trial; second, each of these laws focus on inducing the accused to confess guilt, rather than having the accusers prove it, and the coercion in both laws differs only in degree, but not in kind; third, like medieval Europeans, modern-day Americans resort to a procedural system “that engages in condemnation without adjudication;” forth, like the law of torture, the sentencing dif- ferential elicits confessions, that would not otherwise be tendered, and some of these confessions are false; fifth, in the substance of both systems lies the illusory safeguard of voluntarism—the accused respectively had and has to repeat the confession or the plea before the judge “voluntarily;” sixth, both systems enhanced their laws respectively with a “probable cause determination for investigation under torture,” and the requirement of an “adequate factual basis for the plea,” but these safeguards do not suffice to protect an innocent from condemnation. Langbein illustrates this point with two examples: 1) the Case of North Carolina v. Alford before the U.S. Supreme Court, which found it permis- sible to condemn without trial a person who had declared before the sentencing court: “I just pleaded guilty [of second degree murder] because they said if I didn’t they would gas me for it…I am not guilty but I plead guilty;” 2) the Case of Johannes Julius, a 17th cen- tury burgomaster of Bamberg, who wrote to his daughter, as he awaited execution, that he had pleaded guilty of witchcraft “for which I must die. It is all falsehood and inven- tion, so help me God….They never cease to torture until one says something.” Langbein concludes that in addition to an increased danger of convicting an innocent man, the plea bargaining, “this willful mislabeling,” reinforces the cynicism about the processes of criminal justice, and he opts for “a streamlined non-adversarial trial procedure,” similar to the “irresistible model” of modern European criminal procedure. For a summary of more arguments in favor and against this component of the U.S. justice system, see W.R. LaFave & J.H. Israel, Criminal Procedure 766-772 (Student ed. 1985 & Supp. 1987). As to recidivism concerns in plea bargaining, see Peter T. Wendel, The Case Against Plea Bargaining Child Sexual Abuse Charges: “Déjà Vu All Over Again,” 64 Mo. L. Rev. 317, 331 n.46 (1999).

158 Latin for “the confession is the queen of tests.” 159 Langbein, supra note 157, at 353. Plea bargaining per se is found in Rule 11 of the Federal

Rules of Criminal Procedure in the U.S., which provides for a detailed procedure for plea bargaining starting with the court’s advising and questioning of the defendant, ensuring that a plea is voluntary, determining the factual basis for a plea, describing the procedure for the agreement of the plea, disclosing the plea, judicial consideration of the plea, ac- ceptance or rejection of the plea by the court, rules for withdrawing the plea, and its finality. Federal Rules of Criminal Procedure (including the amendment that entered into effect in December 1, 2007), Chapter IV, Rule 11.

160 John H. Langbein, id. at 352.

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accused, usually to a lesser charge, in exchange for the prosecutor’s recommendation of leniency with respect to the criminal sanction imposed, but also for a reduction in the number of counts, and, sometimes, even acquittal of all charges. Generally it is offered by the prosecutor to the accused, mostly in cases of crimes that bear the highest sentencing ranges, and less frequently used for most serious crimes, or no- torious cases. There are two basic types of plea negotiation: charge bargaining and sentencing bargaining.��� The accused pleads guilty and waives his right to trial, in ex- change for a lesser punishment compared to the one he might be sentenced to if the case were adjudicated and the accused had been found guilty. Thus, for the accused and its defense, plea bargaining is an instrument that helps them do damage control and it appeases them with the certainty of a known outcome. It seems convenient to convict the accused on the basis of his confession, since the prosecutor is no longer charged with the burden of proof for the accused’s guilt, and the court is spared of the adjudication of the case. Hence, for the prosecution, plea bargaining plays an impor- tant role in reducing its workload. In many cases, the prosecution bargains with less culpable defendants in exchange for facts and evidence that could help secure guilty findings of the more culpable defendants, who would otherwise risk of being acquit- ted. In other cases, where the facts and the law may be not clear enough to bring about a desired conviction, plea bargaining guarantees at least a partial victory for the prosecution. A system of justice, some would argue, that relies overwhelmingly upon plea bargains to dispose of cases is built upon the “bad man” inference.��� Some commentators thus consider plea bargaining to be the defining feature of the present

161 For a summarized description of the two kinds of plea bargaining and the implications of the Supreme Court’s decision of United States v. Booker, 543 U.S. 220 (2005), see Barry Boss, Nicole L. Angarella, Negotiating Federal Plea Agreements Post-Booker: Same as It Ever Was?, 21-SUM Crim. Just. 22 (Summer, 2006). (United States v. Booker dealt with the constitutionality of the Federal Sentencing Guidelines, which were made advisory by the Court, which in turn reasoned as in Apprendi v. New Jersey, 530 U.S. 466 (2000): “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Here it is important to note the Federal Sentencing Guidelines were styled as mandatory rules setting out a uniform sentencing policy for convicted defendants in the United States federal court system since 1980s. Recently, they were made advisory only, both on the federal and the state levels, by the Supreme Court decision in United States v. Booker, 543 U.S. 220 (2005), which found that the Guidelines, as originally constituted, violated the Sixth Amendment right to trial by jury. Judges still have to calculate the guidelines and consider them when determining a sentence but they are not required to issue sentences necessarily within the guidelines.

162 Michael H. Graham, The “Mere Fact” Method of Prior Conviction Impeachment: “Bringing Some Honesty and Fairness To Being Dishonest,” 42 No. 4 Crim. Law Bulletin 6 (July- August 2006).

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federal criminal justice system that actually circumvents “the preferred way of resolv- ing criminal cases,”��� i.e. a jury or bench trial that guarantees a full due process.

However, if we consult the U.S. Constitution or its Bill of Rights, not only do we not find any reference to plea bargaining, but, on the contrary, in several amend- ments we face guarantees which appear to imply its very opposite. By pleading guilty without trial, the accused waives several constitutional rights provided through the due process of law, such as the right to remain silent, the right against self-incrimi- nation, the right to have the attorney assist the defendant during the trial, the right to use the court to induce the production of documents and witnesses, the right to cross-examine witnesses for the prosecution, the right to have witnesses testify on behalf of the defendant during the trial, the right to appeal the case, except with de novo review and/ or on the issue of voluntariness of the plea (also depending on what level of court the guilty plea is entered in), the right to a trial by a jury of twelve peers (individuals selected from the community) who must unanimously find the accused guilty. As it can be seen, there is not much room left for the true soul of the adver- sarial model of adjudication. The above mentioned guarantees enshrined in the Fifth, Sixth and Fourteenth Amendments have always been seen by the Supreme Court as the basis of the U.S. adversarial system.��� Still, we see that plea bargaining is not an exception to the rule; it has become the norm, the commonplace disposition vehicle of U.S. criminal procedure in 95% of cases, and repeatedly upheld by the Supreme Court,��� – a court requesting from the prosecution to abide by the bargain it makes

163 Mary Patrice Brown & Stevan E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia, 43 Am. Crim. L. Rev. 1063, 1064 (2006).

164 See Nix v. Williams, 467 U.S. 431, 453 (1984), where the Court reasons: “The Sixth Amend- ment guarantees that the conviction of the accused will be the product of an adversarial process….” For a concise collection of cases and articles on the substance of the adver- sarial system in the Fifth, Sixth and Fourteenth Amendments, see Jay Sterling Silver, Pro- fessionalism and the Hidden Assault on the Adversarial Process, in 18 Crim. L. Rev. 625 (1996), at 629, n. 11.

165 For comparative figures on plea bargaining, see George Fisher, Plea Bargaining’s Triumph, 109 Yale L. J. 857, 1012-1013 (2000), as well as Stephen C. Thaman, The Role of Plea and Confession Bargaining in International Criminal Courts, in ICTY: Towards a Fair Trial? (Thomas Kruessmann ed., 2008). For Supreme Court cases, see Corbitt v. New Jersey, 439 U.S. 212 (1978), stating that “[n]ot every burden on the exercise of a constitu- tional right, and not every pressure or encouragement to waive such a right, is invalid; specifically, there is no per se rule against encouraging guilty pleas… Absent the abolition of guilty pleas and plea bargaining, it is not forbidden under the Constitution to extend a proper degree of leniency in return for guilty pleas…” http://caselaw.lp.findlaw.com/cgi- bin/getcase.pl?navby=case&court=us&vol= 439&invol=212 . Also see McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, U.S.,2002, where the Court reasons that “plea bargaining does not violate the Fifth Amendment [privilege against self-incrimination], even though criminal defendants may feel considerable pressure to admit guilt in order to obtain more lenient treatment. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357 (1978); Brady, 397 U.S., at 751.” Another interesting case is U.S. v. Mezzanatto, 513 U.S. 196 (1995). In paragraph 12, quot- ing Corbitt,, the Court notes: “The plea bargaining process necessarily exerts pressure on

197Due Process in Peacetime: U.S. Law

with the defendant, and from the judge to make sure that the plea is knowing and voluntary. This all seems to have a good reason in the country of business, as it clears the busy dockets with cost-effective pleas, resulting in work load reduction. In light of the amount of criminality in this populous country a full jury trial with all its due process guarantees is simply not affordable any longer.

In many cases, though, the fundamental motive for entering into pleas is con- sideration for the victims of crimes – the would-be-witnesses at trial. In cases like human trafficking, the prosecutors agree to, or initiate, plea deals because they want to protect the victim from the trauma of testifying, especially if the victim is very young. These victims are too fragile, too psychologically bruised, to be able to face the perpetrator. Fear of further revenge, particularly threatened harm to their loved ones, remains a persistent co-traveler of the victims, and could lead them to simply give up fighting. This could further weaken the case of the prosecution. Additionally, lack of sufficient evidence, because of having to investigate in foreign countries, as well as potential flaws in the investigation of facts, or even the law itself could provide an opportunity for acquittal, thus risking the crime to go unpunished after all. In other occasions, plea bargaining could help prosecutors get more out of the defendant than just imprisonment.

But that is not all. “Draconian sentences” of the U.S. criminal law, wide margins in minimum and maximum sentencing do not leave much room for the defendant to experiment with a jury or bench trial; often, he is better off with a plea, regardless of his guilt or innocence. This issue leads to another kind of pleas: the nolo contendere or Alfred plea, according to which the defendant neither admits guilt, nor wants to go to trial, because of fear of losing. Nolo contendere seems to cut right in the middle.

A matter of great concern for the courts is always assurances that the plea was entered voluntarily, knowingly, and had a factual basis, moreover because of the fact that once entered into a guilty plea, there is no backing out of it, unless on grounds of violations of the criteria mentioned above. All things considered, plea bargaining does not seem to be an American barbarism, but on the contrary, quite an upright solution to a situation that could be rather complicated, potentially yielding a most unwelcome result.

C. Rights to and in Trial

The Sixth Amendment to the U.S. Constitution provides for a speedy and public trial, a trial by jury previously ascertained by law, complete notice of the accusation,

defendants to plead guilty and to abandon a series of fundamental rights, but we have repeatedly held that the government ‘may encourage a guilty plea by offering substantial benefits in return for the plea.’” Then it goes on reasoning that “[w]hile confronting a de- fendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” – and permissible – “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Bordenkircher v. Hayes, at 364, quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973); Mezzanatto, para.12.

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confrontation of witnesses, calling witnesses on one’s behalf, assistance of counsel including self-representation.

1. Trial by Jury

The trial by jury is one of most conspicuous features of the American legal system. Trial by jury dates back to the Dark Ages��� of England. It became a routine part of the English criminal legal system in the thirteenth century when the Fourth Lateran Coun- cil of November 1215 prohibited the clergy from administering the ordeals,��� essential to the pre-existing criminal procedure of trial by ordeal. In contrast, in Continental European jurisdictions the ordeals were replaced by a system of proof which called for, with respect to particularly serious crimes, the presence of either two eye wit- nesses or a confession by the accused obtained through, inter alia, torture��� as part of the fact-gathering system. There are contradictory opinions on the superiority of one or the other system.��� However, they were both a response to the demand for a fair process in criminal proceedings. Trial by jury continued to be the governing

166 Dark Ages- a term used to denote a period from A.D. 4-1000, characterized by lack of written records. It is said that the origin of juries usually dates back to the Dark Ages with stories about accused and accusers fighting it out in front of feudal authorities. Russell Baker on The Jury, available at http://www.pbs.org/wgbh/masterpiece/jury/baker.html (last visited on June 4, 2006).

167 Canon 18 of The Canons of the Fourth Lateran Council of 1215 states inter alia that no cleric shall participate “in judicial tests or ordeals by hot or cold water or hot iron bestow any blessing.” Available at http://www.fordham.edu/halsall/basis/lateran4.html.

168 John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancient Regime (1977). In this book Langbein points out, that the new system relied on direct evidence: witnesses or voluntary confession. But, in the absence of both witnesses, and a voluntary confession there came the need to extract confession through system- atic torture, which developed as part of the fact gathering process in the jurisdictions observing Roman-canon law . Torture was seen as a means of eliciting direct evidence, a confession was (theoretically, at least) not regarded as determinative of guilt. Accentuat- ing the objective evidence, the torture-induced confession was considered reliable only if the accused revealed information that none but the guilty would know. The confession required practical verification and the confession had to be repeated in front of the judge later, in the absence of torture. The most common methods of torture were the strap- pado, the rack and the thumbscrew.

169 According to various scholars, despite the different responses to the end of the trial by or- deal, claims that the English system was morally superior are hard to sustain. Maitland, The History of English Law (1898) pointed out that the lack of systematic torture in England was not because the English were possessed of “any unusual degree of humanity of enlightenment.” Torture was only permitted in the continental systems where there was sufficient indirect evidence amounting to “half proof” of the offence alleged. The jury system on the other hand allowed guilt to be established on the basis of circumstan- tial evidence alone – what Maitland described as the “rough verdict of the countryside.” John H. Langbein, supra note 168. Among others, Langbein asserts: “The [English] were the beneficiaries of legal institutions so crude that torture was unnecessary… The

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proceeding, functioning swiftly and effectively��0, even in the 1790s when the U.S. was constitutionalizing the model of the English jury trial. In the U.S., to date, the trial by jury remains a central piece both of the legal discourse and the formal law, still viewed with reverence by a population which appears to be content with this dis- tinctly Anglo-American component of its criminal justice system. On the contrary, in the middle of the nineteenth century, while the Continental criminal procedure was shaping into its modern form, it “resisted the temptation to adversary domination.”��� They did the same with the guilty plea.���

However, fewer and fewer cases are now tried by jury or bench in the U.S., because the criminal justice system disposes of most cases through plea bargaining.��� It is important to note here that this came as a result of the vast transformation that the Anglo-American institution of the jury trial underwent over two centuries – from the mid-eighteenth to the mid-twentieth – “rendering it absolutely unworkable as an ordinary dispositive procedure.”��� During this period, the jury trial gained several characteristics, due to increased pressure for a greater level of safeguards against mis- taken convictions. Among the most important of such guarantees were the adver- sary procedures, the reduction of pro se trials, extended voir dire,��� techniques and

English jury [could] convict on less evidence than was required as a mere precondition for interrogation under torture on the Continent.”

170 In Old Bailey, London’s Central Criminal Court, in the 1730s the court routinely proc- essed between 12 and 20 jury trials for felony in a single day, and there were no lawyers obtained for the defense or prosecution in ordinary criminal trials. Langbein, supra note 157, at 352.

171 Id. at 353. This general American fascination with the idea of the jury is, however, far from universal. There are a number of perceived defects of the jury system. Abraham Lincoln, a lawyer himself, once said that “A jury too frequently has at least one member more ready to hang the panel than to hang the traitor,” available at http://www.tempe.gov/citymgr/ weekly/08302004.htm (last visited on June 4, 2006), whereas Mark Twain in his book titled “Roughing it,” depicting a scene of jury selection in Virginia, summed up the common criticism and his own indignation in two sentences: “The jury system puts a ban upon intelligence and honesty and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago.” Available at http://faculty.cua.edu/pennington/Law508/RoughingIt.htm (last visited on June 4, 2006)

172 Since 1850s, the German scholars disagreed with the fact that the court would sentence an accused on the basis of his confession “without satisfying itself of his guilt.” Langbein, ibid.

173 Ibid. For more on the issue, see George Fisher, Plea Bargaining’s Triumph, 109 Yale L. J. 857-1086 (2000); Ronald F. Wright, Distortion and the End of Innocence in Federal Crimi- nal Justice, The Berkeley Electronic Press (2005), Paper 483.

174 Langbein, supra note 157, at 353. 175 Voir dire denotes the pre-trial probing of the backgrounds and views of jurors and allows

for juror challenges. British juries are apparently chosen with much less fuss than Ameri- can juries. A British Web site, which advises people what to expect if called to jury duty, states that it is rare for a potential juror to be rejected after arriving in the courtroom. In

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sensational addresses of the counsels, the exclusionary rules of the law of criminal evidence, motions to incite and save issues for appellate review, all of which, in the aggregate, made a jury trial intricate and time-consuming.���

Some scholars and legal analysts have long ago voiced their arguments in favor of the wholesale abolition of the trial by jury, but the overall sentiment seems to stay with the U.S. Supreme Court’s holding of 1937��� and later in 1968 that the juries are “necessary to an Anglo-American regime of ordered liberty,”��� and particularly so in the wording of Article 3, Section 2 (3) of the U.S. Constitution “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury,”��� further confirmed in the Sixth Amendment as “an impartial jury of the State and district wherein the crime shall have been committed.”

However, no matter what the actual status of the jury trial is, despite of its de facto yielding to the practice of plea bargaining, regardless of its sometimes glaring defects��0 and the blows it may throw to the idea of substantive justice, the millen- nium year old practice of jury trial will most probably remain the flagship of the An- glo-American criminal legal system. Though it is no longer fulfilling the function it used to have, i.e. protection against government, still it cannot be considered entirely antiquated. While improvement of the jury trial process will always be welcome, its elimination is almost out of the question – not only because of the high hurdles of the Constitutional amendment process.��� For one reason, there is no element of the whole legal system that appeals to the people as much as the trial by jury does. Trial by jury especially in the U.S. is an identity-forming myth which can not be destroyed;

American courts, picking the perfect jury is now a high art, and there are very expensive businesses that counsel lawyers about which jury candidates to accept and reject. Russell Baker on The Jury, available at http://www.pbs.org/wgbh/masterpiece/jury/baker.html (last visited on June 4, 2006)

176 Langbein, supra note 157, at 352. 177 Palko v. Connecticut, 302 U.S. 319 (1937): a “fair and enlightened system of justice would

be impossible without” a right to jury trial. 178 Duncan v. Louisiana, 391 U.S. 145 (1968). 179 Also reaffirmed in the Sixth Amendment: “In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” (emphasis added).

180 See Zofia Smardz, The Jury’s Out: How 12 Reasonable People Got Hung Up on Reasonable Doubt, Wash. Post, June 26, 2005, at B1; Neil Vidmar et al., Should We Rush To Reform the Criminal Jury?: Consider Conviction Rate Data, 80 Judicature 286 (1997); Shari Siedman Diamond & Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 Va. L. Rev. 1857 (2001). Cf. also the recent discussion of the “CSI effect,” which describes the potential weight that watching the TV show Crime Scene Investigation might have on the conduct and deliberation of jurors, resulting in more acquittals or more convictions, depending which side of the claim a scholar takes. See Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale L. J. 1050 (2006); Simon Cole & Rachel Dioso, Law and the Lab, Wall St. J., May 13, 2005.

181 An amendment to the U.S. Constitution requires a two-thirds majority of the Congress and four quarters of the legislatures of the States. U.S. Constitution art. V.

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it remains one jurisprudential theme of discussion that every citizen can participate in and feels knowledgeable of. Doing away with it would thus probably cause more harm than good, it would shake the structure of beliefs and attitudes of the public at large, who would possibly feel disempowered.

As Bentham wrote, “However odd … a law, a custom may be, it is of no conse- quence, so long as the people are attached to it. The strength of their prejudice is the measure of the indulgence which should be granted to it.”���

2. The Right to an Impartial, Independent and Competent Tribunal

And what my Lord Coke says in Dr. Bonham’s Case��� in his 8 Co. is far from any extrava- gancy,… for it is impossible that one should be judge and party, for the judge is to determine between party and party, or between the Government and the party.”

Sir John Holt, C.J. (1701)���

The right to an impartial tribunal is another guarantee provided by the Sixth Amend- ment. This principle relates back to the Roman law concept of nemo iudex in propria causa (no man should be judge in his own cause). Now generalized, this principle of law asks for procedural fairness in any legal system emphasizing, conceivably, one of its most vital characteristics: the objectivity or neutrality of the decision-maker in a suit at law, free from personal stakes as well as from any concerns of retribu- tion, whatever the outcome of the case may be. Compliance with this principle is an indicator of the prevalence of the rule of law in a country; it is the heart and soul of the due process. Its violation was often enshrined in the positive laws on decision making authority, so the struggle had to be directed toward nullifying such laws. Sir William Blackstone��� in his Commentaries cuttingly observed that making a judge

182 Jeremy Bentham, Theory of Legislation, at 76-77, quoted in Graham Hughes, Mor- als and the Criminal Law, in Essays in Legal Philosophy 183, 185 (Robert S. Summers ed., 1968).

183 This case comes to our readings from year 1610, when Dr. Thomas Bonham was charged by the Royal College of Physicians with practicing medicine in London without a license. The College tried Bonham in its own court, found him guilty, convicted him with a fine and imprisonment, and finally suggested that the College appropriated half the fine. Sir Edward Coke, at that time Chief Justice of the Court of Common Pleas, extra-judicially (because there was no judicial review at that time) discharged the case commenting that the physicians “cannot be judges, ministers, and parties; judges to give sentence or judg- ment; ministers to make summons; and parties to have the moiety of the forfeiture.” John V. Orth, Due Process of Law: A Brief History 19 (2003).

184 Lord Chief Justice of England and Wales, from April 17, 1689 to March 11, 1710. Quotation noted in Orth, at 15.

185 Sir William Blackstone, (1723–1780) was an English jurist and professor who pro- duced the historical treatise on the common law called Commentaries on the Laws of England, first published in four volumes from 1765 to 1769. His Commentaries are available online through the Avalon Project at Yale Law School, at http://www.yale.edu/ lawweb/avalon/blackstone/blacksto.htm.

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in one’s own case would be outright objectionable, and described it as “characteristic of life in the state of nature” and as “one of the evils civil government was intended to remedy.”��� Thus he was siding with Sir Edward Coke’s extra-judicial conclusion in defending Dr. Bonham’s right to a fair trial and his attempt to put forward the restraint of law on power. In the U.S., where due process of law became a hallmark of the Constitution, somehow, examples of gross conflicts of interest among judges remained a practice��� until 1928, when Justice William Howard Taft found it to be “a violation of due process.”��� This was true even though, as early as 1787, James Madi- son, in his famous Federalist Paper No. 10, had declared that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”��� Following Tumey v. State of Ohio, the Congress enacted a statute which provides for disqualification of a federal judge “in any proceeding in which his impartiality might be reasonably questioned.”��0

Impartiality��� is a complementary attribute of an independent tribunal, and judi- cial independence gains its real worth when exercised objectively, free of prejudice and favoritism.��� That is why the lady of justice is blind: objective and impartial,

186 Orth, supra note 183, at 26. 187 As per Orth, “for a century and a half a substantial number of American states allowed

something very like it (making a man a judge in his own case) with respect to the lowest level of judiciary, paying the salaries of magistrates or justices of the peace from the fines they levied.” Id. at 31.

188 Tumey v. State of Ohio, 273 U.S. 510 (1928), concluding that: “No matter what the evi- dence was against [the defendant], he had the right to have an impartial judge. He reason- ably raised the objection, and was entitled to halt the trial because of the disqualification of the judge, which existed both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village. There were thus presented at the outset both features of the disquali- fication.” Id. at 523.

189 At the U.S. Department of State website: http://usinfo.state.gov/usa/infousa/facts/de- mocrac/7.htm.

190 28 U.S.C. § 455 (A) (1999). 191 In some American literature the term is understood to mean “the denial of one’s partial-

ity” which in turn has to do with “particularity…[as] taking a partial view of some matter, seeing it narrowly or incompletely,” or with “affective attachment or desire…[which refers to] being partial to something, as when one is partial to chocolate cake, or committed to principles of liberty and equality, or attached to the philosophic life.” See Sharon Krause, Partial Justice, 29 Pol. Theory 315, 318-319. For this and for an interesting and challeng- ing discussion on the (im)partiality of judges, see John Kang, John Locke’s Political Plan, or, There’s No Such Thing as Judicial Impartiality (And It’s a Good Thing, Too), 29 Vt. L. Rev. 7 (2004).

192 The American Bar Association (ABA)’s Model Code of Judicial Conduct (1990), which consists of statements of norms denominated Canons, specific Sections and Com- mentary, states appropriate ethical obligations of judges. One of the issues addressed is also the impartiality of judges. In Canon 3B (5) it prescribes that: “A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias

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bearing no fear or ill will. “The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.”��� Judges swear the judicial oath��� that they will do justice “according to law,” but sometimes the rules of law conflict, in many cases the law might be vague, uncertain, or sometimes, even non-existent. In these cases the judges mandated to provide a decision are not only applying law, but also creating new law.��� In all of this process, it is crucial that judges render justice “faithfully and impartially” and they “do equal right to the poor and the rich,” using their balancing faculty. Actually, it is an inherent imperative of the legal process to place the weak and the powerful on equal terms in the same court- room, in which money, strength and power, so dominant in our everyday life, seem to lose their advantage, as this imperative mandates justice due to all. It is the duty of a judge not to allow family, social, political or other relationships to influence his ju- dicial conduct or judgment.��� Not only should the court be impartial but it must also appear to be impartial. In the same trend as its international counterparts,��� the U.S. judge is cautioned against any “[f ]acial expression and body language, in addition to oral communication, [which] can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.”���

or prejudice based upon race, sex, religion, national origin, disability, age, sexual orienta- tion or socioeconomic status, and shall not permit staff, court officials and others subject to the judge’s direction and control to do so.”

193 ABA Code, Preamble, supra note 192. 194 28 USCS 453, Oaths of Justices and Judges: Each justice or judge of the United States

shall take the following oath or affirmation before performing the duties of this office: “I, _ _ _ _ _ _, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _ _ _ _ _ _ under the Constitution and laws of the United States. So help me God.’’

195 Riddall, supra note 11, at 98 (1999). In Chapter 9 of his book, Riddall discusses in de- tail how judges decide cases, as he reflects upon Dworkin’s analysis of adjudication in Law’s Empire (1986). The author argues that by calling “interpretation” as the “proper role,” Dworkin avoids the drawback created by the fact that judges make new law, and this law operates retrospectively, binding the unsuccessful party to a law that did not ex- ist when the case was brought before the court. A judge’s proper function is to be seen, Dworkin theorizes, not in filling the gaps by the exercise of his discretion, but in under- taking interpretation. Id. at 100.

196 ABA Code, Canon 2B. Supra note 192. 197 See European Court of Human Rights, noting that as regards impartiality, even appear-

ances are important. Supra Ch. II.A, note 343. 198 ABA Code, Canon 3B (5), comment. However, judges are always “judged” by the pub-

lic according to their perceived liberal or conservative tilts, and some come to be seen as “commanding the power to control a closely divided court.” See Ruth Marcus, The Kennedy Center: The Supreme Court’s Balance is Precarious, Washington Post, July 5, 2006, at A 13, analyzing Justice Kennedy’s decisive vote against the Bush administration’s military tribunals.

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Beyond the impartiality of the decision maker, a judicial decision with binding force on any party, be it an individual or a group, must be devoid of any sort of inter- vention from other governmental bodies. So, viewed in a simplistic way, prima facie, in any democratic society, where the doctrine of the separation of powers��� prevails, the judiciary has to be independent, and this independence is no doubt an “integral part of the judiciary’s core function.”�00 However, for centuries, there has always been widespread resentment and suspicion toward the power exercised by the judiciary. This distrust tends to be even greater when one of the parties is a government institu- tion,�0� and in criminal proceedings, this is always the case.

The last requirement is that judges be competent to decide the cases before them. Judges are supposed to come to the bench with extensive training and experience. Their specialized professional education would be beneficial towards enhancement of their capabilities to reach reasoned, logical, coherent, and, to their best judgment, fair decisions. This education should normally continue while they are on the bench.

Another way to view the tribunal’s competence is by observing the ability of the judges to minimize the intrusion of their personal values in the decisions they make, and their sensitivity towards the values of the community by discerning and then re- flecting upon these values. Parties in a suit at law do not submit their case to decision by the personal values of the judges,�0� but to a well-deliberated, competent, indepen- dent and impartial process. However, in many appellate decisions one comes across consenting and dissenting opinions of certain judges. Part of the legal community, or community at large, sides with one or the other opinion. This is a normal reflection of a judge’s formation and values versus those of the rest of society. It indicates that just like society, in the manifestation of their understanding of law, the judges too are split into more liberal, or rather conservative; more audacious, or rather hesitant; and more progressive, or rather cautious personalities. In this interplay of reasoning, intellect, and competence, the judicial process remains true to the era in which it serves. Ultimately, in the American legal system, the judge remains an impartial and independent referee, particularly in jury trials, during the adversarial battle between

199 Separation of powers = the legislature making laws + the executive administering those laws + the judiciary interpreting and applying those laws. However, some hold views that political scientists have exposed this strict doctrine, as having been “diluted to a formula that acknowledges the core functionalism,” meaning that this formula allows one branch of government to venture into the domain of the other, but not interfering with its core functions. E.W. Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles 77 (2005).

200 Id. at 78. 201 This would probably originate in the positivist creed related to the authority of the law as

read from Justice Brandeis citing Holmes’ statement: “[L]aw in the sense in which courts speak of it today does not exist without some definite authority behind it…[T]he author- ity and only authority is the State, and if that be so, the voice adopted by the state as its own [whether it be of its legislature or of its Supreme Court] should utter the last word.” See Ronald Dworkin, Justice in Robes 211 (2006).

202 Thomas, supra note 199, at 86.

205Due Process in Peacetime: U.S. Law

litigants, mostly ruling on their legal motions and objections, and rarely intervening with motions or questions of their own.�0�

3. The Right to a Speedy and Public Trial

The right to a speedy trial�0� guaranteed in the Sixth Amendment of the United States Constitution has generally come to be considered by the courts and scholars to be one of fundamental�0� importance. This provision was first dealt with by the Supreme Court in the 1905 case of Beavers v. Haubert.�0� The Court argued that the defendant’s right to a speedy trial was not “so unqualified and absolute,” and that it had to “be considered with regard to the practical administration of justice.”�0� It actually placed more importance on other procedural rights, and further balanced the defendant’s constitutional right to a fair trial with societal or governmental interests.�0� However, the course of defining the scope and the rationale of the right came to change later.

In United States v. Ewell,�0� the Court found the provision to be “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.’’ At the same time

203 Gurulé, supra note 156, at 104. 204 Before it appeared in the Sixth Amendment, this right is believed to have originated

from the Magna Carta of 1215: “We will sell to no man, we will not deny or defer to any man either justice or right.’’ Ch. 40 of the 1215 Magna Carta, a portion of ch. 29 of the 1225 reissue. Klopfer v. North Carolina, 386 U.S. 213, 223-24 (1967). It was first included in the Virginia Bill of Rights of 1776, paragraph 8 (available at: http://www.constitution. org/bor/vir_bor.htm ), which reads: “That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an im- partial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.” (emphasis added).

205 Klopfer v. North Carolina, supra note 204, at 223. Some scholars, however, find a “glaring paradox” in the dichotomy of the characterization by the Supreme Court of the “speedy trial” element of the Sixth Amendment. Labeled sometimes as “relative,” or “amorphous,” or “slippery,” and at other times “fundamental” or a “most basic right,” the speedy trial is considered a double-edged sword that could benefit or prejudice the defendant. See Alfredo Garcia, The Sixth Amendment in Modern American Jurisprudence: A Critical Perspective 157-158 (1992).

206 Beavers v. Haubert, 198 U.S. 77 (1905). 207 It further added: “The right of a speedy trial is necessarily relative. It is consistent with

delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, at 87.

208 Garcia, supra note 205, at 159. 209 United States v. Ewell, 383 U.S. 116, 120 (1966). See also Klopfer v. North Carolina, supra

note 204, at 221-22; Smith v. Hooey, 393 U.S. 374, 377 -379 (1969); Dickey v. Florida, 389 U.S. 30, 37-38 (1970).

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society’s interest, particularly as it relates to the costs of providing for pre-trial de- tainees and sometimes their families, were also considered though it actually “exists separate from and at times in opposition to the interests of the accused.’’��0 United States jurisprudence is rich in detailed reasoning on delays related to pre-indictment and post-indictment.��� The Court held that such a delay should not be “purposeful or oppressive,”��� ultimately reasoning that “the essential ingredient is orderly expe- dition and not mere speed,”��� when administering justice with dispatch. In Barker v. Wingo,��� the Court suggested four criteria to be considered when determining a possible violation of the defendant’s right to a speedy trial: “[the l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”��� Two years later, the Speedy Trial Act of 1974 established time limits for completing the various stages of a federal criminal prosecution.��� Similar provi-

210 Barker v. Wingo, 407 U.S. 514, 519 (1972). 211 See In United States v. Marion, 404 U.S. 307, 313 , 320, 322 (1971), the Court held that

the right to a speedy trial “‘is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” But Justices Douglas, Brennan, and Marshall argued that the “right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pretrial indict- ment delays as it is to post-indictment delays.” See also United States v. MacDonald, 456 U.S. 1 (1982); United States v. Loud Hawk, 474 U.S. 302 (1986).

212 Pollard v. United States, 352 U.S. 354, 361 (1957). 213 Smith v. United States, 360 U.S. 1, 10 (1959). 214 Barker v. Wingo, 407 U.S. 514 (1972). 215 Barker v. Wingo, at 530. The Court probed into technical details related to these four

factors. So, the first factor, the length of the delay, was considered “to some extent a trig- gering mechanism … because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar … circumstances of the case.” Regarding the second factor, the Court dwelled on the reason that “the government assigns to justify the delay…. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” As to the third factor the Court stressed: “We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” As regards prejudice to the defendant, the Court noted “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Ibid.

216 The information or indictment must be filed within 30 days from the date of arrest or service of the summons, 18 U.S.C. § 3161(b). Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later, 18 U.S.C. § 3161(c)(1).

207Due Process in Peacetime: U.S. Law

sions were introduced in state jurisdictions. Though not governed by the interest of the defendant,��� the act, as amended in 1979,��� aims to ensure that defendants are not rushed to trial, but are given adequate time to prepare, and it prohibits a defendant to expressly waive his rights,��� unless the trial judge determines that the “ends of justice” served by a continuance would outweigh the interest of the pub- lic and the defendant in a speedy trial.��0 But according to Supreme Court recent- ly, that public interest cannot be served “if defendants may opt out of the Act en- tirely.”��� “In this case, continuance is not excluded from the speedy trial clock.”��� As to the mandate of a public trial, there has always existed a distrust for secret trials in the Anglo-American legal system, probably springing from “the notorious use of this practice by the Spanish Inquisition, … the excesses of the English Court of Star Chamber, and … the French monarchy’s abuse of the lettre de cachet…,” which “sym- bolized a menace to liberty.”���

However, while respecting this right, the problem of over-publicized crimes and pervasive sensationalism might lead to a lack of due process and jeopardize the right to fair trial,��� as most probably prejudice to the accused will result. In the case of Estes v. Texas,��� the Court reasoned that “the constitutional guarantee of a public

217 Garcia, supra note 205, at 174, writes: “The impulse behind the act was not to provide the defendant with an effective antidote to the feeble relief fashioned by the Supreme Court’s constitutional standard;” and referring to the preamble of the act notes that “its main thrust” was “to reduce crime and the danger of recidivism…”

218 Speedy Trial Act Amendments of 1979, Pub. L. No. 96-43, Section 3, 93 Stat. 327. For a good review of the Act see Twenty-Fifth Annual Review of Criminal Procedure, 84 Geor- getown L.J. 1022-1039 (1996).

219 See United States v. Saltzman, 984 F.2d 1087, 1090-1092 (10th Cir. 1993). 220 18 U.S.C. § 3161(h)(8)(A). 221 Zedner v. U.S. 126 S.Ct. 1976, 1985 (2006). 222 Id. at 1989. 223 In re Oliver, 333 U.S. 257, 266 -70 (1948). The Court further added: “Whatever other ben-

efits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.”

224 In Rideau v. Louisiana, 373 U.S. 723 (1963), the Supreme Court considered the trial pro- ceedings of the Calcasieu Parish, Louisiana, to be “kangaroo court proceedings” involv- ing “a more subtle but no less real deprivation of due process of law” than it would have been in case of physical brutality, after a televised interrogation of the arrested without the presence of his lawyers had taken place. The Court held that “[i]t was a denial of due process of law to refuse the request for a change of venue after the people of the Parish had been exposed repeatedly and in depth to the spectacle of the petitioner personally confessing in detail to the crimes with which he was later to be charged.” Id. at 723-727. Referring to the case of Chambers v. Florida, 309 U.S. 227, 241 (1940), the Court con- cluded: “Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death.”

225 381 U.S. 532 (1965). The Court explains how the right to fair trial could be jeopardized by a high degree of publicity: “There are numerous respects in which televising court

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trial is to ensure that the accused is fairly dealt with and not unjustly condemned,”��� and it subjected the right of press to access and communicate judicial proceedings as enshrined in the First Amendment to the “maintenance of absolute fairness in the judicial process.”��� The closure of trials or pretrial proceedings may be justified in cases when the state shows proof of an overriding interest to preserve higher values, and such closure must be “narrowly tailored to serve that interest.”��� Still, the Court has constantly held that openness of trials or voir dire proceedings enhance the sub- stance of fairness of the criminal trial, particularly since the conduct of police and prosecutor is often at issue.��� It also promotes the appearance of fairness��0 which is always considered to be vital to public confidence in the administration of criminal justice.���

4. The Right to Counsel

Another very important guarantee enshrined in the Sixth Amendment to the U.S. Constitution is the assistance of counsel for the defense of the accused in all crimi-

proceedings may alone, and in combination almost certainly will, cause unfairness, such as: (1) improperly influencing jurors by emphasizing the notoriety of the trial and affect- ing their impartial judgment, distracting their attention, facilitating (in States which do not sequester jurors) their viewing of selected parts of the proceedings, and improperly influencing potential jurors and thus jeopardizing the fairness of new trials; (2) impairing the testimony of witnesses, as by causing some to be frightened and others to overstate their testimony, and generally influencing the testimony of witnesses, thus frustrating invocation of the “rule” against witnesses; (3) distracting judges generally and exercising an adverse psychological effect particularly upon those who are elected; and (4) imposing pressures upon the defendant and intruding into the confidential attorney-client rela- tionship.” Id. at 544-550.

226 Id. at 538-539. 227 Id. at 539-540. 228 Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984). 229 Waller v. Georgia, 467 U.S. 39, 47 (1984). 230 Within this parlance there is an interesting discussion according to which the defend-

ant’s right to appear before the jury in his best posture and not in a way that suggests his guilt (like wearing prison garb: Estelle v. Williams, 425 U.S. 501, 512 (1976), or shackling: Holbrook v. Flynn, 475 U.S. 560, 568-569 (1986)) also includes granting a well-behaved defendant (and consequently his lawyers) the autonomy to choose his seat. According to such views, that would provide the jury with “relevant, non-verbal evidence from the defendant’s confrontations with hostile witnesses. See Steven Shepard, Should the Crimi- nal Defendant Be Assigned a Seat in Court?, 115 Yale L. J. 2203 (2006). See also, Stephen W. Comiskey, A Good Lawyer (and Their Best Clients) Already Know, 66 Tex. B. J. 338 (2003). “Arrive early enough … to claim the counsel table closest to the jury.” Id. at 340.

231 See Smith v. Doe, 538 U.S. 84 (2003), a decision of March 05, 2003. The Court observed that “our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused.” Id. at 99.

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nal prosecutions where imprisonment could be a potential punishment.��� Later, the standard of effective assistance of counsel was developed and required to permeate this right.

This right includes the right to appointed counsel in all felony cases in federal courts,��� but also in all felony cases before state courts��� as guaranteed by the due process clause of the Fourteenth Amendment.��� Gideon v. Wainwright,��� “one of the most popular decisions ever handed down by the Supreme Court,”��� opined that, without counsel, a defendant would be totally vulnerable to government power and

232 See Baldasar v. Illinois, 446 U.S. 222, 232 (1980). The court noted that Gideon v. Wain- wright established the right to counsel in felony cases, but it does not control misde- meanor convictions. International standards do not relate the right to counsel to impris- onment or non-imprisonment cases, but they do base their examination on the interests of justice for the appointment of counsel. Though since early on with cases like Powell v. Alabama, 287 U.S. 45, 71 -72 (1932) and Glasser v. United States, 315 U.S. 60, 70 (1942), the Supreme Court had talked about effective aid in preparation of trial, it was in Mc- Mann v. Richardson, 397 U.S. 759 (1970), that the Court observed that whether defense counsel provided adequate representation, depended “on whether [the] advice [given] was within the range of competence demanded of attorneys in criminal cases.” Id. at 768-771. Further, in Strickland v. Washington, 466 U.S. 668 (1984), the Court articulated a two components test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings: deficient attorney performance and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question. More cases followed suit.

233 See Johnson v. Zerbst, 304 U.S. 458, 463 (1938), according to which the Sixth Amendment right to counsel in criminal proceedings withholds from federal courts “the power to de- prive an accused of his life or liberty unless he has or waives the assistance of counsel.”

234 Gideon v. Wainwright, 372 U.S. 335, 342 (1963): The Sixth Amendment right to counsel in criminal proceedings applies to the States through the Fourteenth Amendment. It is interesting to note here that cases such as this one are proof of Chief Justice Earl War- ren’s Court’s efforts to create national standards of justice in the 1960s. However, it is very important to observe that after Justice William Brennan stated that the U.S. Supreme Court only creates a floor for the protection of rights (see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489-504 (1977), certain states responded by expanding defendant’s guarantees. Thus, a Michigan court, for example, expanded the suspect’s right to counsel even in identification proceedings. See Bodenhamer, supra note 20, at 136-137 (1992). Nevertheless, since judges in state courts are elected to the bench, there is always a greater probability that the judges re- spond more to the voters’ fear of crime than to the pleas for a broader interpretation of defendant’s rights.

235 The Supreme Court also used the Fourteenth Amendment in to give the “voluntariness” doctrine of confessions a constitutional dimension when applying to state cases, and the Fifth Amendment self-incrimination clause in federal cases.

236 Supra note 234. 237 See Yale Kamisar, The Gideon Case 25 Years Later, N.Y. Times, March 10, 1988, at A27,

col. 1., cited in Alfredo Garcia, supra note 205, at 9.

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eventually lose in an unfair trial.��� The celebrated Gideon decision was further imple- mented and clarified in 1964 in Massiah v. United States.��� There the Court, while dealing with the law governing confessions, was also concerned with the moment in time when the right to counsel attaches. This right was found to have been violated, when evidence of the defendant’s incriminating words obtained after he was indicted and in the absence of counsel, was used in trial.��0 This decision was followed in Esc- obedo v. Illinois,��� where the Court was determining whether the refusal by the police to honor the petitioner’s request to consult with his lawyer during the course of an interrogation constituted a violation of the defendant’s Sixth Amendment right to counsel. The Court reversed the decision of the Illinois Supreme Court stating, “We hold only that when the process shifts from investigatory to accusatory – when its focus is on the accused and its purpose is to elicit a confession – our adversary system begins to operate, and, under the circumstances here, the accused must be permit- ted to consult with his lawyer.”��� Some scholars have also proposed that suspects in custody should have an unwaivable right to counsel before any police interrogation starts.��� The right to a defense counsel in the Sixth Amendment has also been inter- preted to mean the right to self-representation on the part of the accused.��� How- ever, some scholars argue that courts should enforce rules to disfavor the accused’s decision to proceed pro se, mindful of the extreme responsibility on defendant who opts for self-representation in criminal proceedings.”��� According to such views, the

238 Gideon, supra note 234, at 342-344. 239 Massiah v. United States, 377 U.S. 201 (1964). 240 Id. at 206. 241 Escobedo v. Illinois, 378 U.S. 478 (1964). 242 Id. at 492. 243 See Charles J. Ogletree, Are Confessions Really Good for the Soul?, 100 Harv. L. Rev. 1826

(1987). 244 Faretta v. California, 422 U.S. 806 (1975). After an in-depth analysis of the English and co-

lonial jurisprudential history, the Supreme Court concluded that the right of self-represen- tation finds support in the structure of the Sixth Amendment and the common law. The Court noted that “the Sixth Amendment as made applicable to the States by the Fourteenth Amendment guarantees that a defendant in a state criminal trial has an independent con- stitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so.” Practically it is the defend- ant who bears the personal consequences of a conviction and not his lawyer or the State. However, the Court uses the word intelligently, which means that accepting the waiver to the right to counsel is to be decided by the court who in turn evaluates the observance of the rights of the defense. This is in line with international standards as well. The European Commission of Human Rights had also noted that the European Convention provides for “adequate representation of the case for the defense, but does not give the accused person the right to decide himself in which way his defense should be assured.” Hannum, supra note 43, quoting X v. Austria, App. No. 1242/61, Eur. Comm. H.R.

245 Anne Poulin, Strengthening the Criminal Defendant’s Right to Counsel (July 2006). Vil- lanova University School of Law Working Paper Series. Working Paper 54, available at: http://law.bepress.com/villanovalwps/papers/art54.

211Due Process in Peacetime: U.S. Law

courts should go above the minimal test of competency to stand trial.��� Another for- warded proposition is that the due process right to counsel in criminal proceedings also covers capital postconviction cases,��� particularly as regards indigent convicts who do not have the ability or means to file a pro se petition.

5. The Adversarial Process: Equality of Arms

The principle of the equality of arms between prosecution and defense entails several components of procedural guarantees that if not observed would result in inequality that compromises the fairness of the whole process. It is essential to the concept of the adversarial process on which the U.S. criminal justice systems rests.��� The adver- sarial process leaves the determination of guilt or innocence to a jury who can only hear two combating versions of past reality presented by counsel for the prosecu- tion and the defense; usually the judge, unlike in his role in the Continental system often dubbed “inquisitorial,”��� will not intercede to right the scales of the argument presented by the two advocates. Thus imbalances in skill may result in favoring one side over the other; this possible imbalance should not be compounded by one side, say the defense, having less procedural rights than the other, say the prosecution. The most important element within the U.S. criminal procedure would be the right of the

246 See Godinez v. Moran, 509 U.S. 389 (1993), and in response to it, see Martin Sabelli & Sta- cey Leyton, Train Wrecks and Freeway Crashes: An Argument For Fairness and Against Self-Representation In the Criminal Justice System, 91 J. CRIM. L. & CRIMINOLOGY 161, 171-85 (2000), as well as David L. Shapiro, Ethical Dilemmas for the Mental Health Professional: Issues Raised by Recent Supreme Court Decisions, 34 CAL. W. L. REV. 177, 178-82 (1997). Cf. Cooper v. Oklahoma, 517 U.S. 348 (1996) stating “Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.” 516 U.S. at 354.

247 Eric M. Freedman, Giarratano is a Scarecrow: The Right to Counsel in State Capital Postconviction Proceedings, 91 Cornell L. Rev. 1070 (2006), stating, inter alia, that due process as well the Eighth Amendment are good enough sources to require states to provide counsel in capital postconviction proceedings. Id. at 1095. The author concludes that U.S. falls short of international standards as regards the right to counsel. Such stand- ards applicable to all criminal cases in all phases are a fortiori applicable in capital cases, where one’s life is at stake. Id. at 1102-1103.

248 For details, see Jay Silver, Equality of Arms and the Adversarial Process: A New Constitu- tional Right, 1990 Wis. L. Rev. 1007.

249 Continental systems of criminal procedure often mix the inquisitorial element with the adversarial, thus reaching, possibly, the best of both worlds. Usually, the judge or judges first question witnesses, then counsels for prosecution and the defense may ask questions of the witnesses as well.

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accused to have compulsory process for obtaining witnesses in his favor as guaranteed in the Sixth Amendment.��0

6. Discovery Rights

Another very important element would be the disclosure by the prosecution of excul- patory evidence. Though the Supreme Court has held in Weatherford v. Bursey��� that there is not a general constitutional right to discovery in a criminal case,��� it has nev- ertheless held that, in certain circumstances, due process requires the disclosure to the defense of exculpatory evidence possessed by the prosecution,��� if the evidence withheld has a material effect in the eyes of the judge. The standard of materiality was understood by Justice Blackmun, and Justice O’Connor in these terms: “…the non- disclosed evidence at issue is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”��� It should be noted though that the defendant, upon his request, can have access to his prior oral, written or recorded statements, to his prior criminal record within government’s possession, to documents and tangible objects that are material to his defense and will be used by the prosecution in trial, as well as reports of any examinations, tests, and summaries of any testimony of expert wit- nesses. Nevertheless, this access is not absolute.��� Neither can it be mandatory for the prosecution to preserve evidence that could serve the defense, absent bad faith. Thus the Supreme Court reasoned that “[u]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not

250 This right is much broader in the U.S. system compared to international standards dis- cussed above.

251 Weatherford v. Bursey, 429 U.S. 545 (1977). . 252 Id. at 559-561: “2) The Due Process Clause does not require that the prosecution must

reveal before trial the names of undercover agents or other witnesses who will testify unfavorably to the defense. (a) There is no constitutional right to discovery in a criminal case.” The Court noted that Brady v. Maryland, 373 U.S. 83 (1963) did not create such a right either, though it held that the prosecution’s suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment. (emphasis added).

253 U.S. v. Bagley, 473 U.S. 667, 682-3 (1985): “[T]he prosecutor’s failure to respond fully to a Brady request may impair the adversary process in this manner. And the more specifi- cally the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption.”

254 Id. 255 See United States v. Pelton, 578 F.2d 701 (8th Cir. 1978), where the defendant was not

given access to a tape of his conversation because of concerns of interference with the prosecution’s witnesses.

213Due Process in Peacetime: U.S. Law

constitute a denial of due process of law.”��� However, it is mandatory for the prosecu- tion to correct false evidence, when knowing such.���

7. The Right to an Interpreter

A deaf defendant also has a due process right to an interpreter in order to have proper access to courts. This also provides for judicial efficiency.���

8. Sentencing a. The Prohibition of Cruel and Unusual Punishments The Eighth Amendment of 1791 also mandates that no cruel and unusual punish- ments be inflicted. Also, the Thirteenth Amendment prohibits involuntary servitude “as a punishment for crime whereof the party shall have been duly convicted.” While the international prohibition of torture, cruel, inhuman and degrading treatment and punishment surpasses the Eighth Amendment guarantee on such, it is necessary to mention that the U.S.��� courts have actually given an equal contemporary meaning to the Amendment. In Trop v. Dulles,��0 the Supreme Court noted that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man…

256 Arizona v. Youngblood, 488 U.S. 51 (1988). . 257 In Napue v. Illinois, 360 U.S. 264 (1959), the Court held: “The failure of the prosecu-

tor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment,” reasoning inter alia that “[t]he established principle that a State may not knowingly use false testimony to obtain a tainted conviction does not cease to apply merely because the false testimony goes only to the credibility of the witness.”

258 See generally Deirdre M. Smith, Confronting Silence: The Constitution, Deaf Criminal Defendants, and the Right to Interpretation During Trial, 46 Me. L. Rev. 87 (1994). For a detailed analysis of the hurdles of the justice system dealing with people with language deficits and the ways to fix such a problem in order to ensure their right to due process and access to justice, see Michele La Vigne & McCay Vernon, An Interpreter isn’t Enough: Deafness, Language, and Due Process, 2003 Wis. L. Rev. 843.

259 Actually, since 1931, the National Committee on Law Observation and Enforcement, known as the Wickersham Commission, evidenced that certain police interrogation tac- tics, known as the third degree tactics – the inflicting of pain, physical or mental, to extract confessions or statements – were widespread throughout the country. See The Wickersham Commission, National Commission on Law Observance and En- forcement, Pub. No. 11, Report on Lawlessness in Law Enforcement (1931). Five years later, the Supreme Court in the Brown case, supra note 931, considered such tactics to be remnants of “the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions.” Id., at 287.

260 Trop v. Dulles, 356 U.S. 86, 101 (1958). The very same philosophy permeated the Court in its earlier decisions. So, in Weems v. United States, 217 U.S. 349 (1910), the Court noted that the Eighth Amendment has an “expansive and vital character” which “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” See Hannum, supra note 9, at 59.

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The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In addition, the international prohibition of torture binds United States both under its obligations as a state party to the Conven- tion against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish- ment, and under customary law which is directly binding on the United States.���

b. Proportionality The Supreme Court has also dealt with the proportionality of sentencing ��� – mostly with respect to the death penalty��� or a sentence to life imprisonment without possi- bility of parole. In the case of Solem v. Helm,��� after careful reasoning and by applying objective criteria, the Supreme Court concluded that Helm’s sentence was signifi- cantly disproportionate��� to his crime, and consequently unconstitutional, as prohib-

261 Restatement (Third) of the Foreign Relations Law of the United States § 111, Reporter’s Note 4 (1987); W. Michael Reisman et al., International Law in Contemporary Perspective 123 (2004). The court in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), for example, stated that the right to be free from torture “has become part of customary law…[and] is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens.” Id. at 883, 884.

262 See Weems v. United States, 217 U.S. 349 (1910), where the Court considered the punish- ment, which consisted of hard and painful labor, shackling for the duration of incarcera- tion, and permanent civil disabilities, to be inherently cruel and condemned it as exces- sive in comparison to the crime committed.

263 Actually some scholars find fault with the fact that the Supreme Court “never had wor- ried about due process when it came to non-capital sentencing.” Stephen A. Saltzburg, Due Process, History, and Apprendi v. New Jersey, 38 Am. Crim. L. Rev. 243, 249 (2001). Professor Saltzburg argues that before the adoption of Sentencing Reform Act of 1984, imposition of sentences upon defendants happened in an arbitrary and capricious man- ner through an unfettered discretion of judges and juries. Id. at 243.

264 Solem v. Helm, 463 U.S. 277 (1983). In 1979, respondent was convicted in a South Dakota state court of uttering a “no account” check for $100. Ordinarily the maximum punish- ment for that crime would have been five years’ imprisonment and a $5,000 fine. Re- spondent, however, was sentenced to life imprisonment without possibility of parole under South Dakota’s recidivist statute because of his six prior felony convictions – three convictions for third-degree burglary and convictions for obtaining money under false pretenses, grand larceny, and third-offense driving while intoxicated. The South Dakota Supreme Court affirmed the sentence. After respondent’s request for commutation was denied, he sought habeas relief in Federal District Court, contending that his sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amend- ments. The District Court denied relief, but the Court of Appeals reversed. Available at http://supreme.justia.com/us/463/277/case.html.

265 Embracing an empirical approach the U.S. Sentencing Commission elaborated a detailed and quite tedious set of guidelines to be observed by judges in sentencing. See generally The United States Sentencing Commission, Guidelines Manual, §3E1.1 (Nov. 2006). They reflect the intent of the Congress when it passed the Sentencing Reform Act of 1984, namely to enhance the ability of the criminal justice system to reduce crime

215Due Process in Peacetime: U.S. Law

ited by the Eighth Amendment. Helm was sentenced to life imprisonment without possibility of parole for committing his seventh non-violent felony. The Court noted that “[t]he Eighth Amendment’s proscription of cruel and unusual punishments pro- hibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed,”��� further stressing that the principle of proportionality was implicit in the Amendment. The Court analyzed the proportionality principle under the previously recognized objective criteria from the Court’s prior cases such as: (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction, that is, whether more serious crimes are subject to the same penalty or to less serious penalties; and (iii) the sentences im- posed for commission of the same crime in other jurisdictions.���

Proportionality in sentencing is of utmost importance as it works towards solving the puzzle of due process by ensuring satisfaction of the concern for human liberty confirming that “each year of human life matters.”��� Not only should sentencing be proportionate but it should also be reasoned.

c. The Death Penalty and Death Row The United States is the only Western country��� that has retained capital punish- ment��0 in peacetime. Removal of execution from the list of acceptable criminal sanc-

through an effective, fair sentencing system through honesty in sentencing (by aboli- tion of parole), uniformity in sentencing (by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders), and proportionality in sentencing (through a system that imposes appropriately different sentences for criminal conduct of different severity.) USSG §1A3.1, p.s.

But the sentencing guidelines cannot per se provide for a reasonable sentencing. It is for the sentencing judge to explain the reasons behind a certain sentence, and to “meaning- fully document how he grappled with … factors to reach the sentence imposed.” Hence the ultimate need for writing sentencing opinions, which in turn would provide the ap- pellate judge with more than bare ground in reviewing of sentencing which has become a recent phenomenon. This argument and more are to be found in Steven L. Chanenson, Write On!, 115 YALE L.J. Pocket Part 146 (2006), available at http://www.thepocket- part.org/2006/07/ chanenson.html.

266 Solem v. Helm, supra note 264, at 284-290. 267 Id. at 292. 268 Saltzburg, supra note 263, at 253 (2001). 269 Many times, the European Union has appealed to the U.S. to consider the abolition of the

death penalty as a contribution to the enhancement of human dignity and the progres- sive development of human rights. In its latest statement of November 30, 2006, the EU expressed its concern about the imminent case of execution of Mr. Percy Levar Walton in the State of Virginia on 8 December 2006. The EU had previously intervened, thus reaching a stay of the execution, in this case in May 2003 and in May 2006, on the basis of mental sickness. See www.diplomacymonitor.com (last visited on November 30, 2006).

270 The U.S. is the only Western country among 85 retentionist countries, according to Am- nesty International 2001, available at http://www.amnestyusa.org/abolish/abret.html (last visited on October 22, 2006).

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tions has, however, historically been an issue under discussion in the U.S. As early as in the 1840s, the abolitionist movement was at its peak. However, there were only two states at that time that actually abolished the death penalty, namely Michigan and Wisconsin, and other states replaced the public hangings with private execu- tions. A few more states abolished it in the 1950s and ‘60s. This lack of further aboli- tions seems to have been attributed to the development of cities and consequently an increase of urban crime, as well as to the rapid surge of non-English immigra- tion. That, in turn, led to considerations which did not consider capital punishment as cruel and unusual punishment, particularly in the light of restriction of capital punishment to fewer crimes, no matter that capital punishment was considered the “natural offspring of monarchical governments,” as Benjamin Rush called it, and that such “idea of cruelty inspire[d] disgust” as Alexander Hamilton would agree, finding it more of an erosion than a bolstering of the republican values and behavior.��� In the twentieth century, the discussion resurfaced, adding to the appeal to judges to con- sider the capital punishment as cruel and unusual under the Eighth Amendment the argument that it also violated the Equal Protection Clause of the Fourteenth Amend- ment since it was disproportionately applied to groups such as African-Americans and the poor. Empirical evidence maintained that capital punishment did not help deter violent crime either, though public polls throughout the 1980s showed there was a belief among the people that it actually was a deterrent. In 1972, the Supreme Court of California concluded that the “capital punishment is impermissibly cruel. It degrades and dehumanizes all who participate in its process. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.”��� In 1972, in Furman v. Georgia,��� the U.S. Supreme Court imposed a moratorium on all executions in the U.S., since it was not satisfied that there was no discrimination in its application. It required states to articulate particularly ag- gravating factors to justify death penalty. Such factors, inter alia, included multiple homicide, felony murder, torture murder.��� This moratorium was, however, lifted in 1977.���

More than the legality of the death penalty itself,��� the conditions of life on “death row,” i.e. waiting for execution after years or decades of appeals, have been challenged as constituting psychological torture amounting to cruel and inhumane treatment.

271 Bodenhamer, supra note 20, at 56-59. 272 Id. at 132-133. 273 408 U.S. 238 (1972). 274 “Furman v. Georgia was decided in an atmosphere suffused with concern about race bias

in the administration of the death penalty – particularly in Southern States, and most particularly in rape cases.” Justice Thomas concurring in Graham v. Collins, 113 S. Ct. 892 (1993), at 904.

275 On January 17, 1977 the moratorium on executions was lifted with the execution of Gary Gilmore by firing squad in Utah. Available at http://www.deathpenaltyinfo.org/article. php?did=410&scid=.

276 Federal and state courts have accepted the constitutionality of capital punishment. See Bodenhamer, supra note 20, at 133.

217Due Process in Peacetime: U.S. Law

Courts have, however, consistently concluded that the death penalty per se does not amount to inhuman treatment, though the opponents of capital punishment in the U.S. have time and again tried to use the language of the Eighth Amendment to re- move the death penalty from the criminal codes, and many reforms were actually introduced which helped in avoiding arbitrary or capricious punishments.��� Such a mitigating measure would be the Court’s decision in Gregg v. Georgia,��� which, though declining to outlaw executions per se, mandated that guilt be determined first and punishment be fixed at a later stage.

Two landmark cases dealing with the issue of the “death row” in the U.S. have been played out before international fora: Soering v. United Kingdom,��� argued before the European Court of Human Rights, and Kindler v. Canada,��0 argued before the Unit- ed Nations Human Rights Committee.��� Both complaints challenged a requested extradition into the U.S. They were based, inter alia, on the alleged fact that facing the death penalty and the “death row phenomenon” as such, subjects the offender to torture, inhuman and degrading treatment. In both instruments, the applicable legal standards, i.e. Article 7 the ICCPR and Article 3 of the European Convention on

277 See Constitutionality of the Death Penalty in America, at http://www.deathpenaltyinfo. org/article. php?did=410&scid=.

278 Gregg v. Georgia, 428 U.S. 153: “Upon a guilty verdict or plea, a presentence hearing is held where the judge or jury hears additional extenuating or mitigating evidence and evidence in aggravation of punishment if made known to the defendant before trial. At least one of 10 specified aggravating circumstances must be found to exist beyond a rea- sonable doubt and designated in writing before a death sentence can be imposed. In jury cases, the trial judge is bound by the recommended sentence.”

279 Soering v. United Kingdom, ECtHR, 11 EHRR 439, Judgment of 7 July 1989. 280 Kindler v. Canada, Communication No. 470/1991, U.N. Doc. CCPR/C/48/D/470/1991

(1993). 281 It is also of great interest to note that the Human Rights Committee somehow modified

its position of Kindler, in a most recent case, Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003), which deals with the deportation from Canada of a U.S. national sentenced to death in Pennsylvania, by finding Canada in violation of the right to life under Article 6 of the ICCPR, merely because of the fact that it did not request assurances from the U.S. that the death penalty would not be car- ried out, thus establishing “the crucial link in the causal chain that would make possible the execution of the author.” Id. at para. 10.6. The HRC established an obligation “not to expose a person to the real risk” of death penalty for all countries that have abolished the death penalty, by stating that “they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out.” Id., para. 10.4. The HRC based these conclusions on the reasoning that the “Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of the present-day conditions.” Id., para. 10.3. The HRC found such conditions to show “notable factual and legal developments and changes in international opinion” toward a broader consensus in favor of abolishing the death pen- alty, at a time when the states which have retained the capital punishment are reaching a broader consensus not to carry it out. Ibid.

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Human Rights and Fundamental Freedoms, prohibiting torture, cruel, inhuman and degrading treatment or punishment, to the extent they apply, are virtually identically worded.

In the Soering Case, the Court dealt with the potentiality of the death penalty to be declared and imposed. The U.S. had not given adequate assurances that the death penalty if declared would not be executed. Then, based on the statement by the At- torney General of the U.S. that if extradited to the U.S. Mr. Soering ran some risk which was more than “merely negligible” that the death penalty would be imposed, based on the “vileness” of the crime, it declared that “it is hardly open to the Court to hold that there are not substantial grounds for believing that the applicant faces a real risk of being sentenced to death and hence experiencing the ‘death row phenom- enon’,”��� thus bringing Article 3 into play.

The Court consequently discussed the death row phenomenon in light of Article 3, i.e. the minimum level (which is relative) of severity of ill-treatment and punish- ment, its nature, context and duration, the manner and method of execution, its physical and mental effects, the personal circumstances of the convicted person, his/ her sex, age and state of health, the conditions of detention awaiting execution, etc. Exceeding a certain threshold of suffering and degradation might violate Article 3.��� The average time on “death row” in Virginia ranged from 6 to 8 years. The Court in Soering discussed the conditions on death row, the stringency of the custodial regime in Mecklenburg, its services and controls as requiring “extra scrutiny for the safe custody of the prisoners condemned to death”, and “the severity of [the Mecklenburg] special regime” being compounded by the fact that prisoners are subjected to it for many years.

The Court concluded that “[h]owever well-intentioned and potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the conse- quence is that the condemned prisoner has to endure for many years the conditions

282 In the Kindler Case, supra note 280, in contrast, the HRC rejected the notion that Article 6 “necessarily requires Canada to refuse to extradite or to seek assurances.” Only “excep- tional circumstances” would lead to such a requirement, id. paras. 14.5-14.6.. Also, the HRC noted, with apparent approval, that Canada legitimately failed to seek assurances because it did not want to become a “safe haven” for those accused of murder in the U.S., see para. 14.6. This consideration was not part of the Soering opinion. In the recent Judge case, supra note 281, the argument of lack of any “exceptional circumstances” on death row is made by the State Party, Canada (see para. 5.1.), but the HRC does not even address this issue any longer. The HRC refuses to cling to its decision of 10 years before, observing that “the protection of human rights evolves and that the meaning of the Covenant rights should in principle be interpreted in reference to the time of examination.” See para. 10.7.

283 The HRC in the Kindler Case, taking note of the reasons given by Canada not to seek assurances, referred, inter alia, to the lack of specific documentation on death row con- ditions in Pennsylvania, as well as the lack of “any submission made about the specific method of execution.” See supra note 280, para. 15.3. Again, the HRC’s recent views in Judge case require abolitionist State Parties to ultimately seek such assurances. See Judge, supra note 281.

219Due Process in Peacetime: U.S. Law

on death row and the anguish and mounting tension of living in the ever-present shadow of death.”��� As to the age of the applicant, being 18 at the time he committed the crime, the Court referred to the ICCPR and the Inter-American Convention and held that “as a general principle the youth of the person concerned is a circumstance, which is liable … to put in question the compatibility with Article 3 of measures con- nected with a death sentence.” The Court goes on reasoning that “… the applicant’s mental state, on the psychiatric evidence as it stands, is therefore to be taken under consideration as contributory factor tending in his case, to bring the treatment on death row within the terms of Article 3.”���

Finally, Mr. Soering, a German national, was asked to be extradited not only by the U.S., but also by Germany, his home state, under the active personality theory of jurisdiction. The Court stated that “sending Mr. Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished, as well as the risk of intense and protracted suffering on death row”. The Court considered it a “circumstance of relevance for the overall assessment under Article 3, in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case.”��� As it can be seen, in Soer- ing the Court had to deal with the consideration of the death row phenomenon as such as violative of Article 3, and the specificity of the allegations needed to be made regarding detention conditions in the “shadow of death”, as well as the requirement to seek assurances of non-execution.

d. The Execution of Juveniles Another issue of international dispute involving the U.S. criminal justice system is the execution of juveniles. Article 6 of the International Covenant on Civil and Political Rights allows for the death penalty for most serious crimes, but it outlaws the execu- tion of persons below eighteen years of age in its paragraph 5. The U.S. has ratified this treaty – not without, however, submitting, inter alia, a reservation to Article 6, in particular excepting its acceptance of paragraph 5. The U.S. justice system in many states allowed for the execution of juveniles; thus the reservation was trying to pro-

284 Contrary to this statement, in the Kindler Case, the HRC recalled its jurisprudence stat- ing that “prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman and degrading treatment if the convicted person is merely availing himself of appellate remedies” and added that there was no submission by the applicant “about the possibility or the effects of the pro- longed delay in the execution of the sentence.” Kindler, para. 15.2. The HRC in the Kindler case appeared to have much less concern about the effect of death row, blaming largely the offender’s appeals for its duration.

285 In this issue, the legal reasoning of the Court and the HRC does not seem to differ. Refer- ring to Soering, the HRC notes that “important facts leading to the judgment of European Court of Human Rights are distinguishable on material points” – they differ inter alia “as to the age and mental state of the offender.”

286 This element was missing in the Kindler Case, as Mr. Kindler was a U.S. national. Thus the HRC distinguished the Soering case noting that “there was a simultaneous request for extradition by a state where the death penalty would not be imposed.” Kindler, para.15.3.

220 Chapter III

tect that practice against scrutiny under the ICCPR. The most significant contradic- tion between the ICCPR and U.S. law and practice, in fact, occurs in the field of the death penalty. According to a 2007 Fact Sheet of Amnesty International,��� 21 U.S. states allow executions of juvenile offenders, and as of January 2004, more than 70 juvenile offenders sat on death rows throughout the United States. This figure consti- tutes approximately 2% of the total death row population. “In the past five years, the United States has executed 13 juvenile offenders. Eight of these executions took place in the state of Texas. The rest of the world combined carried out five such executions. The United States accounts for four of the last five known juvenile offender execu- tions in the last two years.”���

This issue has been a longstanding point of contention between the U.S. and the international community, since the U.S. has constantly rejected proposals to prohibit the use of the death penalty or life imprisonment without parole for crimes commit- ted by juveniles. The execution of juveniles might independently violate customary international law, but the U.S. might be seen as exempt from such a norm due to its status as a persistent objector.

In this respect, the Inter-American Commission considered a case against the United States.��� The United States is not a state party to the 1969 Inter-American Convention on Human Rights, but it is bound by the 1948 American Declaration on the Rights and Duties of Man which refers to standards of customary international human rights law. The Inter-American Commission agreed to the U.S. being exempt- ed from the reach of customary international law due to its status as persistent ob- jector to the norm; however, it added that there exists a jus cogens norm against the execution of juvenile offenders,��0 which the U.S. could not evade, and thus it ruled that the U.S. was in violation of the American Declaration.���

287 Death Penalty Fact Sheets, available at http://www.amnestyusa.org/abolish/juveniles. html.

288 Amnesty International, ibid. 289 Case 9647 (United States), OEA/Ser.L/V/II.71, Doc. 9 rev.1, 22 September 1987, at 147-

184. Available at http://www.cidh.org/annualrep/2005eng/USA.12439eng.htm. 290 Case 9647 (United States), at para. 55: “The Commission finds that in the member States

of the OAS there is recognized a norm of jus cogens which prohibits the State execution of children.”

291 The Commission concluded as follows: “For the federal Government of the United States to leave the issue of the application of the death penalty to juveniles to the discretion of state officials results in a patchwork scheme of legislation which makes the severity of the punishment dependent, not, primarily, on the nature of the crime committed, but on the location where it was committed. Ceding to state legislatures the determination of whether a juvenile may be executed is not of the same category as granting states the discretion to determine the age of majority for purposes of purchasing alcoholic bever- ages or consenting to matrimony. The failure of the federal government to preempt the states as regards this most fundamental right – the right to life – results in a pattern of legislative arbitrariness throughout the United States which results in the arbitrary dep- rivation of life and inequality before the law, contrary to Articles I and II of the American Declaration of the Rights and Duties of Man, respectively.” Id. at para. 62.

221Due Process in Peacetime: U.S. Law

Also, as early as 1988 the U.S. Supreme Court in Thompson v. Oklahoma��� re- ferred to the international consensus��� against the execution of juvenile offenders, when discussing the “indicators of contemporary standards of decency” within the Eighth Amendment in order to confirm their judgment that a 15 year-old person “is not capable of acting with the degree of culpability that can justify the ultimate penalty.”��� However, it was only in 2005, that the U.S. Supreme Court joined the consensus of a great many countries when it concluded, in the case of Roper v. Sim- mons,��� that the death penalty may not be imposed on persons who were below the age of eighteen when they committed their criminal offense. In a close 5:4, heavily disputed opinion, the Court based its decision on the Eighth Amendment’s prohibi- tion of “cruel and unusual punishment.” The majority argued that “evolving standards of decency”��� had now reached the point that they would not allow execution of juveniles any more.��� Three key arguments backed up this conclusion: (1) there was an emerging consensus in the U.S. that juveniles should not be executed; (2) capital punishment for a person under the age of eighteen was disproportionately severe; and (3) virtually all, if not all, countries in the world had officially outlawed the death

292 487 U.S. 815 (1988). 293 In section III of the decision the Court reasoned as follows: “The conclusion that it would

offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.”

294 Id. at section II, available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US& vol=487 &invol=815 (last visited on October 22, 2006).

295 543 U.S. 551, 578 (2005). 296 The key decision introducing this concept to Eighth Amendment jurisprudence was Trop

v. Dulles, 356 U.S. 86 (1958), a case on denationalization into statelessness. 297 Id. at 578. However, capital punishment as such does not yet, in the opinion of the Court,

violate such standards. Stanford v. Kentucky, 492 U.S. 361 (1989). What the Court out- lawed, however, in 2002, was the execution of mentally retarded offenders. Atkins v. Vir- ginia, 536 U.S. 304 (2002).

222 Chapter III

penalty for juveniles.��� This decision has been highly controversial, not only within the court,��� but also without.�00

D. Rights in Prison

One of the conspicuous components of judicial policy making is no doubt the refor- mation of prisons by the courts in the U.S.�0� The consideration of the Eighth Amend- ment as a living, dynamic right and its contemporary interpretation so as to include treatment in addition to the existing punishments has given rise to numerous suc- cessful litigations against conditions in detention or imprisonment. The earliest of claims under Eighth Amendment was the case of Talley v. Stephens,�0� where the inmates complained that they were denied access to courts, adequate medical ser- vice, and were subjected to harsh working conditions and severe corporal punish- ment. It was followed by Jackson v. Bishop.�0� The case was successful on appeal, when Judge Harry Blackmun ruled that corporal punishment was “unusual” because only two states still allowed it. It was “cruel” because “whipping creates other penological

298 “Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments’. ” Id. at 575.

299 In particular, Justice Scalia, in his dissent, scolded the majority for its perceived reliance on the practice of other countries: “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.” Id. at 622.

300 Compare, e.g., for support, Dirk van Zyl Smit, The Abolition of Capital Punishment for Persons Under the Age of Eighteen Years in the United States. What Next?, 5 Hum. Rts. L. Rev. 393 (2005); and for strong rejection, Jason Mazingo, Roper v. Simmons: The Height of Hubris, 29 Law & Psychol. Rev. 261 (2005).

301 For an elaborate discussion of this issue, see Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Re- formed America’s Prisons (1998).

302 Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark. 1965). Cummins Farm, the institution at the center of this litigation, required its 1,000 inmates to work in the fields 10 hours a day, six days a week, using mule-drawn tools and tending crops by hand. Id. at 688. Also, inmates were lashed with a wooden-handled leather strap five feet long and four inches wide. Id. at 687.

303 Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Against official policy, some inmates were whipped for minor offenses until their skin was bloody and bruised. Id. at 810-811. The most appalling allegation was the use of the notorious “Tucker telephone,” a hand- cranked device, to administer electrical shocks to various sensitive parts of an inmate’s body. Id. at 812.

223Due Process in Peacetime: U.S. Law

problems and makes adjustment to society more difficult.”�0� These cases�0� paved the road to future litigation, and served as precedents where judges seriously considered and steered change in the conditions of state prisons. Later, in Rhodes v. Chapman,�0� the Supreme Court held that prison conditions “alone or in combination, may de- prive inmates of the minimal civilized measure of life’s necessities.”�0� Also, many U.S. jurisdictions have adopted as their guidelines the United Nations Standard Minimum Rules for the Treatment of Prisoners,�0� elaborating upon the minimum rights and facilities to be available in prisons. These norms have been cited in U.S. courts�0� as evidence of contemporary standards within the scope of the Eighth Amendment.

The requirement under international law, namely under the ICCPR and the Inter- American Convention on Human Rights, that the accused should be separated from the convicted prisoners and that the juveniles should be separated from the adults have been considered by the U.S. as “goals to be achieved progressively rather than through immediate implementation.”��0

304 Feeley & Rubin, supra note 301, at 57. 305 See also Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980), one of the Texas cases, which

had undergone eight years of pre-trial activity. For an accurate account of this pre-litiga- tion and later litigation see Ben Crouch & J.W. Marquart, An Appeal to Justice: Litigated Reform of Texas Prisons (1989) and Steve Martin & Sheldon Ek- land-Olson, Texas Prisons: The Walls Came Tumbling Down (1987).

306 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See recently Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir.2000).

307 Courts in the U.S. have considered several conditions that could violate the Eighth Amendment, such as putting mattresses on the floor to sleep, lack of adequate ventila- tion, heating, lighting, presence of excessive noise, physical deterioration of the prison, lack of adequate fire protection, lack of sanitation, etc. So violation was found where “ap- palling, deplorable condition” of many housing units, and the continued overcrowding was present. Gates v. Collier, 390 F.Supp. 482, 488-89 (N.D.Miss. 1975). A Pennsylvania district court condemned the State Correctional Institution at Pittsburgh as an “over- crowded, unsanitary, and understaffed firetrap.” Tillery v. Owens, 719 F.Supp. 1256, 1259 (W.D.Pa. 1989), affirmed by 907 F.2d 418 (3d Cir. 1990). The appellate court agreed that “almost every element of the physical plant and provision of services at SCIP falls below constitutional norms.” 907 F.2d at 427. “The jail remains with us – old, dilapidated, and unconstitutionally overcrowded. An economic motive can no longer excuse or be used to justify the conditions imposed on the inmates.” Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278, 1296-97 (W.D.Pa. 1983).

308 Adopted by the First United Nations Congress on the Prevention of Crime and the Treat- ment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII), 13 May 1977. At http://www.ohchr.org/english/law/ treatmentprisoners.htm.

309 See Lareau v. Manson, 651 F.2d 96, 106 and n.6, 107 (2d Cir. 1981) (prisoners are entitled to adequate shelter); Morgan v. La Vallee, 526 F.2d 221, 226 n.8 (2d Cir. 1975). Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir.1991) (there is a constitutional right of prison inmates to adequate heat).

310 In 1978 when President Carter transmitted treaties pertaining to human rights (ICCPR, ICESCR, CAT, IACHR) to the Senate for its advice and consent, he particularly noted

224 Chapter III

Administrative segregation of prisoners was argued to be a violation of the liberty interest protected through the due process clause of the Fourteenth Amendment in the case of Hewitt et al. v. Helms.��� The Court held, however, “The phrase “adminis- trative segregation,” as used by the state authorities here, appears to be something of a catchall: it may be used to protect the prisoner’s safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer. Accordingly, administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration…. [and does not involve] an interest independently protected by the Due Process Clause.”��� However, this absence of a constitutionally based lib- erty interest to remain with the rest of the inmates could be filled legally if statutes or regulations have already created such a protectable liberty interest, which happened according to the facts of this particular case.���

There is an array of other rights pertaining to persons detained or imprisoned that stem from the Constitution. The First Amendment rights related to freedom of information, for example, pertain also to persons detained or imprisoned. However, certain restrictions apply. Such restrictions, as first articulated in the case of Procu- nier v. Martinez,��� can be imposed by the government when pursuing an interest apart from the suppression of freedom of expression, and they are subject to the principle of proportionality, i.e. such a limitation cannot be greater than what is nec- essary to defend that particular government interest. However, about fifteen years later, in Turner v. Safley��� and in Thornburgh v. Abbott,��� the Supreme Court opted

that these two treaties contain provisions that the U.S. practice could not meet yet. See Natalie Kaufman Hevener, The Dynamics of Human Rights in U.S. Foreign Policy (1981), at 91-94.

311 Hewitt et. al. v. Helms, 459 U.S. 460 (1983). 312 Id. at 468. (emphasis added). 313 The Court observed that “in the light of the Pennsylvania statutes and regulations here in

question, the relevant provisions of which are set forth in full in the margin, that respond- ent did acquire a protected liberty interest in remaining in the general prison population.” Id. at 470-471. The court concluded that, however, the process afforded respondent satis- fied the minimum requirements of the Due Process Clause. Id. at 477-478.

314 Procunier, Corrections Director et al. v. Martinez et al., 416 U.S. 396, 397 (1974). The Court held: “The censorship of direct personal correspondence involves incidental re- strictions on the right to free speech of both prisoners and their correspondents and is justified if the following criteria are met: (1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental in- terest involved.” Id. at 404-414.” (emphasis added). As discussed in the prior sections, this is a position analogous to the international standards regarding legitimate aims pursued by the government when limiting rights, and to the test of “necessary in a democratic society” when assessing the said limitation.

315 Turner v. Safley, 482 U.S. 78 (1987). 316 Thornburgh v. Abbott, 490 U.S. 401 (1989).

225Due Process in Peacetime: U.S. Law

for a lesser standard��� as being appropriate and stipulated that “inquiry is made into whether a prison regulation that impinges on inmates’ constitutional rights is “rea- sonably related” to legitimate penological interests.” It concluded that the correspon- dence regulation is, on the record here, reasonable and facially valid.���

Another important issue concerns parole. The granting of parole involves no lib- erty interest unless there are statutes or regulations that specifically create one. The mere possibility of parole does not entitle a prisoner to due process protections.��� On the other hand, the revocation of parole involves a constitutionally based liberty interest, and parolees are entitled to due process. Such was concluded in Morrissey v. Brewer,��0 a landmark case still upheld to date.��� In the same vein, the Court required

317 The Court argued that “prison officials are due considerable deference in regulating the delicate balance between prison order and security and the legitimate demands of ‘out- siders’ who seek to enter the prison environment. The less deferential standard of Mar- tinez – whereby prison regulations authorizing mail censorship must be ‘generally neces- sary’ to protect one or more legitimate governmental interests – is limited to regulations concerning outgoing personal correspondence from prisoners, regulations which are not centrally concerned with the maintenance of prison order and security. Moreover, Martinez is overruled to the extent that it might support the drawing of a categorical distinction between incoming correspondence [490 U.S. 401, 402] from prisoners (to which Turner applied its reasonableness standard) and incoming correspondence from nonprisoners.” Westlaw, summarizing Thornburgh v. Abbott, at 407-414.

318 In discussing these issues, the Thornburgh Court referred to its previous jurisprudence and particularly to the standards established in Turner v. Safley, 482 U.S. 78 (1987). The Court noted that the objective of protecting prison security is undoubtedly legitimate. Id. at 414-419.

319 See Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979): “A reasonable entitlement to due process is not created merely because a State provides for the possibility of parole, such possibility providing no more than a mere hope that the benefit will be obtained….” Id. at 9-11.

320 Morrissey v. Brewer, 408 U.S. 471 (1972). The Court reasoned: “Though parole revoca- tion does not call for the full panoply of rights due a defendant in a criminal proceeding, a parolee’s liberty involves significant values within the protection of the Due Process Clause of the Fourteenth Amendment, and termination of that liberty requires an infor- mal hearing to give assurance that the finding of a parole violation is based on verified facts to support the revocation.” Id. at 480-482.” The Court went on to stipulate: “At the revocation hearing, which must be conducted reasonably soon after the parolee’s arrest, minimum due process requirements are: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f ) a written statement … by the factfinders as to the evidence relied on and reasons for revoking parole.” Id. at 487-490.

321 See Shabazz v. New Jersey Dept. of Corrections, 385 N.J. Super. 117, 896 A. 2d 473, N.J. Super. A.D., 2006; Samson v. California, 126 S. Ct. 2193 (2006).

226 Chapter III

that due process safeguards have to be followed when the authorities deny good time credits to prisoners because of misconduct.���

E. Habeas Corpus

Judicial review to determine the legality of detention via the writ of habeas corpus is one of the fundamental precepts of the U.S. criminal justice system as also enshrined in the U.S. Constitution. Its Article 1, paragraph 9, clause 2 mandates that “[t]he privi- lege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.” Originally conceived in the English Magna Carta of 1215, habeas corpus is the equivalent to the amparo relief of various Latin American countries or to the more wordy guarantee of international law formulated as the right “to take proceedings before a court, in order that the court may decide without delay on the lawfulness of … detention and order release if the detention is not lawful.”��� Conventionally, the U.S. habeas corpus writ used to pertain to post-trial detention,��� but lately, as the later sections will observe, habeas corpus was brought to courts in the context of pretrial arrest and detention as well, coming to a closer resemblance to the international guarantees in determining the initial legality as well as the reasonableness of a continued detention. Habeas corpus or the “Great Writ” also provides for a State prisoner to petition for review of his con- viction in Federal court on the grounds that the conviction was reached violating the Due Process Clause. However, federal habeas review does not provide for relitigation of a criminal case on its merits.��� Also, there is a one year period of limitation for the

322 See Wolff v. McDonnell, 418 U.S. 539 (1974). In this case, the Court concluded: “We hold that written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense. At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee. We also hold that there must be a ‘written statement by the factfinders as to the evidence relied on and reasons’ for the disciplinary action.” Emphasis added. The Court also rea- soned: “We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when per- mitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id. at 566.

323 ICCPR, art. 9(4); also similar provisions in regional instruments: ECHR, art. 5(4), IA- CHR, art. 7(5), ACHPR, art. 7(1) (a).

324 Also, distinct from its international guarantee equivalent, U.S habeas corpus is also “a means of collaterally attacking unconstitutional or otherwise defective laws.” Hannum, supra note 43, at 49.

325 See Herrera v. Collins, 506 U.S. 390 (1993) concluding: “That proof, even when considered alongside petitioner’s belated affidavits, points strongly to petitioner’s guilt. This is not to say that petitioner’s affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence of- fered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide

227Due Process in Peacetime: U.S. Law

applicability of a writ of habeas corpus after conviction by a State court.��� This issue leads us to the next section: the right to an appeal.

F. Right to Appeal

The Constitution of the United States does not expressly provide for a right to appeal a criminal conviction.��� Substantially, for an appellate court to correct an error not raised at trial there are three conditions that must be satisfied; so there must exist an “(1) ‘error;’ (2) that is ‘plain,’ and (3) that affect[s] substantial rights.”��� There are also other standards of appellate review, abuse of discretion being one of them.

Applying a common law system the U.S. legal development means that through adjudication new interpretation and new rules come to being while modifying or overruling existing ones. As the appeals process tends to be a relatively long one, such shifts in legal standards could bring vital effects in the life cycle of a case pending in appeal.��� Particularly Supreme Court decisions that alter the constitutional law of criminal procedure through a pro-defendant ruling would have drastic implications. Sometimes this issue has been solved by applying the rule retrospectively to cases that are still under direct review.��0 In other cases, because of impossibility of retroac- tive application, the problem has been mitigated by rejection of appeals on grounds of the no error or harmless error rule.���

important issues of credibility. But coming 10 years after petitioner’s trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.”

326 See Antiterrorism and Effective Death Penalty Act of 1996, Publ. Law 104-132 amending 28 U.S.C. § 2244.

327 See Halbert v. Michigan, 125 S. Ct. 2582, 2586 (2005): “[t]he Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions,” as held in McKane v. Durston, 153 U.S. 684, 687 (1894). See also Abney v. United States, 431 U.S. 651, 656 (1977), stating that “[I]t is well settled that there is no constitutional right to an appeal.” For a discussion challenging this stance, see Mark Arkin, Rethinking the Consti- tutional Right to a Criminal Appeal, 39 UCLA L. Rev. 503 (1992), and David Rossman, Were There No Appeal: The History of Review in American Criminal Courts, 81 J. Crim. L. & Criminology 518 (1990).

328 United States v. Olano, 507 U.S. 725, 732 (1993). 329 For an interesting discussion of such “transitional moments” in criminal cases, see Toby

Heytens, Managing Transitional Moments in Criminal Cases, 115 Yale L. J. 922 (2006). 330 See Griffith v. Kentucky, 479 U.S. 314 (1987). The Supreme Court held that decisions deal-

ing with conduct of criminal trials should be applied retroactively to all cases under re- view at the time of that ruling. Id. at 328.

331 See Arizona v. Fulminante, 499 U.S. 279, 306 (1991): “Most constitutional errors can be harmless….”

A discussion on harmless error can be conveniently found in Roger J. Traynor, The Riddle of Harmless Error (1970), as well as in Daniel J. Meltzer, Harmless Error and Constitutional Remedies, 61 U. Chi. L. Rev. 1 (1994). A very good resource dealing with the case law of the Supreme Court as regards individual rights and liberties is the treatise

228 Chapter III

Appellate courts routinely dismiss the appeal of convicted criminal defendants who flee from justice while their appeal is pending.��� This is based on the doctrine of the fugitive disentitlement established by the Supreme Court in the 19th century.���

Summary

As we explore the structure of the domestic criminal justice system, the various Con- stitutional amendments and the jurisprudence of the Supreme Court pertaining to due process rights, we come to realize that there is a necessity for a hyper-integrated approach to the reading of the Constitution.��� Due process rights are closely inter- twined with the entirety of the provisions regulating criminal proceedings in order to provide effective guarantees for the criminal suspect and the defendant. Missing or neglecting one link would jeopardize the whole process and undermine the adminis- tration of justice. A relative imbalance of constitutional guarantees for the defendant is noticed when analyzing the pre-trial and trial process. At trial, procedural protec- tions seem to reach the apex; the investigative phase appears to subject the accused to the greatest vulnerability.���

Beyond the domestic law, international law also may play a role in the area under consideration as it is integrated in various ways into the domestic law of the United States.

G. Customary International Law of Human Rights as United States Law

The U.S. constitutional framework appears to welcome international law into its do- mestic legal system; according to Article VI, treaties are the supreme law of the land,��� and customary law is recognized by the courts as federal common law.��� However,

of Ioannis G. Dimitrakopuolos, Individual Rights and Liberties Under the U.S. Constitution: the Case Law of the U.S. Supreme Court (2007). For further Supreme Court cases and its doctrines and rules on procedural rights, see Chapter III. B-F.

332 For a discussion of this issue, particularly in opposition to the application of the doctrine in civil forfeiture proceedings and claiming its applicability only in criminal appeals, see Martha B. Stolley, Sword or Shield: Due Process and the Fugitive Disentitlement Doctrine (Degen v. United States, 116 S. Ct. 1777 (1996)), 87 J. Crim. L. & Criminology 751 (1996- 1997).

333 Smith v. United States, 94 U.S. 97 (1876). 334 See generally Laurence H Tribe & Michael C. Dorf, On Reading the Constitu-

tion 19-30 (1991). 335 Further analysis of this claim can be found in Gurulé, supra note 156, at 106-109. 336 Article VI(2) provides:

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the Supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

337 Restatement (Third) of Foreign Relations Law of the United States § 111, Reporter’s Note 4 (1987).

229Due Process in Peacetime: U.S. Law

in practice, the applicability of this body of law in the U.S. legal system is rather limited, especially in the field of human rights. The reasons for this state of affairs are several. For one, the U.S. has been very selective in ratifying international agree- ments, particularly in the field of human rights; second, if treaties were ratified, the use of those treaties by courts, and thereby their invocability by individuals in litiga- tion has been severely curtailed by application of the court-made distinction between self-executing and non-self-executing treaties;��� and third, even if treaties under the criteria offered by the courts would be considered self-executing, the Government, especially in the field of human rights treaties, has, at times, attached declarations of understanding to its ratification stating that, for the U.S., the treaty is to be con- sidered non-self-executing. Thus, in the area of human rights at issue in this study, the only specific and pertinent treaty binding on the U.S. is the 1966 International Covenant on Civil and Political Rights (ICCPR), since it never ratified the 1969 Inter- American Convention on Human Rights. The ICCPR, however, was excluded from direct applicability in U.S. courts by the U.S. declaration of understanding, attached to its instrument of ratification, that the treaty was to be considered non-self-execut- ing.��� The four Geneva Conventions of 1949 apply more to the area of emergency and anti-terrorist law to be discussed later. They were not covered by a declaration of non-self-executing character at the time of their ratification by the U.S. The U.S. Supreme Court in the June 29, 2006 decision of Hamdan v. Rumsfeld��0 left the issue

338 This distinction goes back to Chief Justice Marshall’s decision in Foster v. Neilson, 27 U.S. 253 (1829). As to its content, the Restatement has concluded, “In general, agreements that can be readily given effect by executive or judicial bodies, federal or state, without further legislation, are deemed self-executing, unless a contrary intention is manifest. Obligations not to act, or to act only subject to limitations, are generally self-executing.” Restatement (Third), supra note 337, at § 111, Reporter’s Note 5 (1987). Most recently, the Supreme Court appears to have narrowed this definition, requiring, in Chief Justice Roberts’ words, that the ”treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Medellín v. Texas, 128 S.Ct. 1346, 1356 (2008), citing Igartua- De La Rosa v. United States, 417 F.3d 145, 150 (C.A.1 2005) (en banc) (Boudin, C. J.). The majority applied this test to Article 94(1) of the U.N. Charter, according to which “Each Member of the United Nations undertakes to comply with the decision of the Interna- tional Court of Justice in any case to which it is a party.” It concluded that this provision was not self-executing, and that the decision of the International Court of Justice in the Avena case, which mandated court review and reconsideration of the state criminal pro- ceedings against 54 Mexican nationals on death row, was thus not binding on American courts. Id. at 1361, 1367. “[M]any treaty-related cases interpreting the Supremacy Clause, … including some written by Justices well aware of the Founders’ original intent,” led Justice Breyer as well as Justices Ginsburg and Souter, in their vigorous dissent, “to the conclusion that the ICJ judgment before us is enforceable as a matter of domestic law without further legislation.” Id. at 1377.

339 U.S. Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights, at 620, 102nd Cong., 2d Sess., Mar. 24, 1992, reprinted in 31 I.L.M. 645, 651-57.

340 126 S.Ct. 2749 (2006).

230 Chapter III

of their self-executing character, in particular, their Common Article 3, undecided.��� The Military Commissions Act of October 17, 2006, however, quickly filled that void and cut off any cause of action possibly based on the Geneva Conventions.���

The only substantive contribution international law thus can make to U.S. law in the field of fair trial and due process guarantees is through customary international law. After initial uncertainty as to whether customary international law is on the same level as federal law or state law,��� consensus has been achieved: “The proposition that customary international law … is part of this country’s post-Erie federal common law has become a well-entrenched component of U.S. foreign relations law. During the last twenty years, almost every federal court that has considered the … position has endorsed it. Indeed, several courts have referred to it as ‘settled.’ The position also has the overwhelming approval of the academy.”��� The Supreme Court, in discussing the

341 Id. at 2794. Interestingly, before this decision was published, the following dialogue transpired during the U.S. Senate Judiciary Committee’s confirmation hearings of then- Supreme Court nominee Judge Samuel C. Alito: “Graham [Sen. Bob Graham, Florida]: Now, let’s go back to the legal application of the Geneva Convention. If someone was captured by an American force and detained either at home or abroad, would the Ge- neva Convention give that detainee a private cause of action against the United States government? Alito: Well, that’s an issue I believe in the Hamdan case, which is an actual case that’s before the Supreme Court. And it goes to the question of whether a treaty is self-executing or not. Some treaties are self-executing…” U.S. Senate Judiciary Com- mittee Hearing on Judge Samuel Alito’s Nomination to the Supreme Court, (Part III of III), Washington Post, Tuesday, January 10, 2006; 7:11 PM (Courtesy FDCH e-Me- dia), available at http://www.washingtonpost.com/wp-dyn/content/article/2006/01/10/ AR200601100 1418_pf.html. After confirmation, Justice Alito filed a dissenting opinion in Hamdan v. Rumsfeld, 126 S.Ct. 2849 (2006), based on a thorough analysis of Common Article 3, which he deemed complied with by the military commission system set up by the President.

342 Military Commissions Act of 2006, § 948b(f ): “GENEVA CONVENTIONS NOT ES- TABLISHING SOURCE OF RIGHTS.—No alien enemy unlawful combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights at his trial by military commission.”

343 For a discussion of this issue, see E. A. Young, Sorting out the Debate over Customary International Law, 42 Va. J. Int’l. L. 365 (2002). Philip C. Jessup had expressed the view that “[i]t would be unsound as it would be unwise to make our state courts our ultimate authority for pronouncing the rules of international law,” since this would leave the rules of international law subject to divergent or parochial state interpretations. Philip C. Jes- sup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int’l L. 740 (1939). For the view that Erie v. Tompkins introduced a new federal common law, see Fred Friendly, In Praise of Erie – and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964).

344 Curtis A. Bradley & Jack L. Goldsmith, Customary International Law As Federal Com- mon Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 816-17 (1997). See also Jordan J. Paust, International Law As Law of the United States 9 (1st ed. 1996), with extensive case analysis, and Reisman et al., International Law in Contempo- rary Perspective 123-124 (2004), with further references.

231Due Process in Peacetime: U.S. Law

“act of state” doctrine in Sabbatino,��� confirmed: “[T]he modern view is that custom- ary international law in the United States is federal law and its determination by the federal courts is binding on the State courts.”���

In the context of this study, there does not seem to be any case on point, however, that has directly applied customary international law on issues of due process and fair trial in criminal proceedings. Still, this does not end the inquiry. The Restatement (Third) of Foreign Relations Law of 1987, a rather authoritative statement of what the U.S. legal community agrees on regarding the content of international law, sets forth a number of components considered part and parcel of the process that is due in criminal proceedings. To begin with, in § 111 (1) it states: “The customary law of human rights is part of the law of the United States to be applied as such by State as well as federal courts.” It continues in § 702 (g) with a definition of torture,��� further concluding that “ [t]orture as well as other cruel, inhuman, or degrading treatment or punishment, when practiced as state policy, are violations of customary international law. The prohibition on torture, at least, may also have been absorbed into interna- tional law as a general principle common to major legal systems.”���

345 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). 346 Id. at 425. 347 Restatement (Third), § 702 (g). “Torture has been defined as ‘any act by which se-

vere pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.’” It makes reference to the Declaration on the Protection of All Persons from Being Sub- jected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1(1), G.A. Res. 3452, 30 U.N. GAOR Supp. No. 34, at 91.

348 Restatement (Third), § 702 (g). It further explains: “The prohibition is included in all comprehensive international instruments. “No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.” Universal Declaration of Human Rights, Art. 5. A similar provision is included in the International Covenant on Civil and Political Rights, Art. 7; the European Convention on Human Rights, Art. 3; the American Convention on Human Rights, Art. 5; the African Charter of Human and Peoples’ Rights, Art. 5. The International Covenant adds: “In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” Art. 7. The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Comment g, was adopted unanimously by the General Assembly. Official torture is also barred by the constitutions or laws of states gen- erally. In the United States, torture as punishment is barred by the Eighth Amendment to the Constitution, and confessions of crime obtained by torture are excluded pursuant to the Fifth Amendment; both amendments are incorporated in and made applicable to the States by the Fourteenth Amendment. The Civil Rights Acts provide remedies for torture by State officials, and the courts might provide a remedy also against federal officials. See 18 U.S.C. §§ 242-45; 42 U.S.C. §§ 1981-83, 1985; Screws v. United States, 325 U.S. 91 (1945) (State official’s beating of prisoner a violation of United States criminal statute); compare

232 Chapter III

The same document refers to the case of Filartiga v. Peña-Irala,��� where the Sec- ond Circuit Court of Appeals ruled that deliberate torture committed by an official authority constituted a violation of customary law and it supported the jurisdiction of the district courts “of a civil action by an alien for a tort only, committed in vio- lation of the law of nations,” according to the Alien Tort Claims Act.��0 The court further clarified: “Indeed, for purposes of civil liability, the torturer has become like the pirate and the slave trader before him hostis humanis generis, an enemy of all mankind.”���

In its recent, first ruling on civil liability under the Alien Tort Claims Act, the 2004 case of Sosa v. Alvarez-Machain,��� the Supreme Court stated that the law of the nations, for purposes of this Act, includes only those customary international law claims that are “specific, universal and obligatory.”��� In the said case, a brief illegal detention – Mr. Alvarez was abducted from his house in Mexico, held overnight in a motel, and brought the next day by private plane to El Paso, Texas – was not enough to constitute a violation of a binding norm of customary international law. However, the ruling did not exclude liability under the above Act when specific customary in- ternational law is violated, and it did not limit it to violations of jus cogens.��� Thus, a prolonged arbitrary detention might qualify.

This argument leads us to another paragraph of the Restatement (Third) of For- eign Relations Law of 1987, which deals with prolonged arbitrary detention.��� It notes that “[d]etention is arbitrary if it is not pursuant to law.” Then, referring to a statement of the U.S. Delegation to the U.N. General Assembly,��� it continues that

Carlson v. Green, 446 U.S. 14 (1980) (Constitution implies civil remedy for violation of Eighth Amendment prohibition of cruel and unusual punishment).

349 Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir.1980). This was a suit brought by an alien residing in the United States against a former official of Paraguay who was visiting in the United States, under the allegations of torture of the plaintiff ’s brother leading to his death.

350 28 U.S.C. § 1350: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

351 Filartiga v. Peña-Irala, supra note 1206, at 890. Also, the U.S. District Court in the case of Mehinovic et al. v. Vuckovic, 198 F.Supp.2d 1322 (2002) ruled, inter alia, on war crimes and crimes against humanity stating: “Plaintiffs have shown, as to each of them individually, that defendant Vuckovic committed the following violations of customary international law, which confer jurisdiction, and establish liability, under the ACTA: torture; cruel, inhuman or degrading treatment; arbitrary detention; war crimes; and crimes against humanity.” Id. at 1344. (emphasis added).

352 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 353 Id. at 732. 354 Siegfried Wiessner, The Articles on State Responsibility and Contemporary International

Law, 34 Thesaurus Acroasium 241, 269 (2006). 355 Restatement (Third), § 702 (h). 356 13 GAOR, U.N.Doc. A/C.3/SR.863 (1958)

233Due Process in Peacetime: U.S. Law

detention may be arbitrary also if “it is incompatible with the principles of justice or with the dignity of the human person,”��� and it explains that arbitrariness results “if [detention] is supported only by a general warrant, or is not accompanied by notice of charges; if the person detained is not given an early opportunity to communi- cate with family or to consult counsel; or is not brought to trial within a reason- able time.”��� However, a distinction is made between an obligation resulting from a treaty and one resulting from customary law: “A single, brief, arbitrary detention by an official of a state party to one of the principal international agreements might violate that agreement; arbitrary detention violates customary law if it is prolonged and practiced as state policy.”���

357 13 GAOR, U.N.Doc. A/C.3/SR.863 at 137 (1958). 358 Restatement (Third), § 702 (h). In the same paragraph, it reasons: “Customary inter-

national law probably does not require a state to provide for release on bail pending trial so long as trial is not unreasonably delayed,” and it refers to Article 9(3) of the Covenant on Civil and Political Rights, which provides that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guaran- tees to appear for trial, at any other stage of the judicial proceedings, and should occasion arise, for execution of the judgment.”

359 Id. (emphasis added).

CHAPTER IV Criminal Due Process in Times of Emergency and Terrorism: The International Legal Regime and Comparative Perspectives

Similar to an individual’s right to self-defense under criminal law, a government’s emergency power allows it to take exceptional measures including suspensions of basic rights.� The genesis of such a special “state of emergency” dates back to ancient Rome, where a “dictator” was nominated to handle issues arising during exceptional circumstances involving either outside assault or domestic upheaval,� basically to re- store order. Derogation of rights in times of emergency adapts the doctrine of necessi- ty in general international law to a particular field of human rights.� It is important in this section to elaborate upon the difference between limitations to rights in a human rights treaty and the treaty’s derogation clause. According to the traditional approach to the concept of liberty, rights guarantee protected spheres of life and gradually bring about new developments and social change. This approach conveniently dem- onstrates the vision of the individual as member of the human community embed- ded in numerous structures and interactions supported by law. In this respect, the concept of liberty, simultaneously, carries with it limitations on individual actions

1 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Com- mentary 73 (1993).

2 See Jaime Oraá, Human Rights in States of Emergency in International Law 7 (1992) and Antonio Guarino, Storia del Diritto Romano 108-109, 216-218 (1981) regarding the institution of the “dictator,” as well as Jean-Jacques Rousseau, The Social Contract, in Political Writings 136 et seq. (Frederick Watkins ed., 1953). See also Carl Schmitt, Die Diktatur (1921), and, generally, the discussion of emergencies and the proper reaction to them in Chapter I, supra.

3 “Necessity” is a ground for precluding the wrongfulness of an act not in conformity with an international obligation (Article 25 of the 2001Articles on State Responsibility, GA Res. 56/83 (Dec. 12, 2001)) when such an act “is the only way for the State to safeguard an es- sential interest against a grave and imminent peril” (Article 25(1)(a) of the Articles). These conditions for invoking the doctrine show that it “will only rarely be available to excuse non-performance with an obligation, and it is subject to strict limitations to safeguard against possible abuses.” Reisman et al., International Law in Contemporary Perspective 950-951 (2004). Also, see generally the discussion in Oraá, supra note 2, at 220-226, and S. P. Jagota, State Responsibility: Circumstances Precluding Wrongfulness, 16 Neth. Y.B. Int’l L. 266-271 (1985).

236 Chapter IV

of self-determination, and ultimately, implies obligations.� These traditions require conformity with public necessities, and consequently restrictions on individual rights and freedoms, be they related to economic, social, private behavior or a person’s lifestyle.�

Domestic law in all legal regimes, while respecting the autonomy of the individual, has to secure the liberty and freedom of all. Thus it provides for potential govern- mental limitations on one individual’s rights to the benefit of other individuals, com- munity or society. An individual is not an island, isolated from others. Human beings are social by nature, and they are meant to live with others. Hence a well-ordered society requires that individuals recognize and observe their mutual rights and du- ties. Absolute freedom of the individual would be at the expense or the detriment of society and/or the rights and freedoms of others. The state is called in as the regula- tor, just as it is many times also the abuser. In its regulatory function, the state is given a lot of power to restrict, or as the case may be, even derogate from rights, in order to avoid irreparable harm to the general public� and the democratic order. As such, its authority expands as individual freedom is restricted, out of the necessity to protect shared social values and legitimate public interests in restoring social and political order and stability. In many cases, however, through its protective function, the state is essentially balancing conflicting private interests and rights.�

Thus, domestic law, mostly the constitution, impliedly, as in the U.S., � or expressly,

4 Roza Pati, Rights and their Limits: The Constitution for Europe in International and Com- parative Legal Perspective, 23 Berkeley J. Int’l L. 223, 228-231 (2005).

5 Helmut Goerlich, Fundamental Constitutional Rights: Content, Meaning and General Doctrines, in The Constitution of the Federal Republic of Germany 45-66 (Ul- rich Karpen ed., 1988).

6 Nowak, supra note 1, at 73. 7 Eckart Klein, Reflections on Article 5 of the International Covenant on Civil and Political

Rights, in Towards Implementing Universal Human Rights 127, 139 (Nisuke Ando ed., 2004).

8 The original Bill of Rights, a catalog of ten amendments added to the 1787 Constitution as an afterthought in 1791, as well as the rights added via amendments in the more than 200 years of the country’s history, focus on the guarantee itself without, in many cases, spelling out express limitations on the right formulated. One such example is the revered First Amendment, which guarantees, apodictically, that “Congress shall make no laws abridging the freedom of speech, or of the press …” It was left to the Supreme Court, suc- cessfully claiming its right to review, and possible invalidation, of any acts of the legisla- tive or executive branch it determined to violate the Constitution, to formulate the limits that any right must have in a well-ordered society. In drawing these limits, the Supreme Court did not try to codify via its power of precedent “formal or “substantive” limitations in a general and abstract sense. In following a more pragmatic approach, guided as much by its common law tradition as the country’s deep distrust of government, the Court developed a case-by-case jurisprudence which strikes the balance between individual rights and interests of the community in a way that responds to concrete historical situ- ations of vulnerability of individuals and needs of the community, e.g. minimization of unauthorized violence with a view toward minimizing restrictions on individual free- dom, while still protecting against real, concrete threats against the community. In sum,

237Due Process in Times of Emergency and Terrorism: International Law

as in Germany,� makes sure that restrictions are set up, and the State, in its duty to protect and to ensure human rights, will, in certain situations, resort to them�0 ex- actly “to maintain and advance social life” while the dignity of the human personality freely develops inside the social community.�� The unlimited exercise of human rights by an individual could lead to conflicts with the public interests or the interests/rights of other individuals.�� Consequently, to resolve such conflicts, there ought to be a le- gal recognition of circumstances in which it is justified to restrict a certain right.

As far as international human rights obligations in times of emergencies are con- cerned, most of the applicable treaties contain a statutory reservation. The reserva- tion provides that the right can be limited by statutes or statutory instruments, but this does not mean that the legislator has unlimited discretion as to how and to what extent to restrict the said right.�� A distinction should be made between the limits to the scope of a right enshrined in a treaty, say, the European Convention of Human

there is no general “doctrine of limitations” upon rights under American constitutional jurisprudence. Limits are imposed, and affirmed, by courts in response to the particular circumstances of typical fact patterns. For a detailed discussion of this issue, see Pati, su- pra note 4. On implied emergency powers, see the Steel Seizure Case, 343 U.S. 579 (1952), to be discussed below.

9 See Chapter Xa and related articles of the German Basic Law for mainly external threats.

10 See generally The Duty to Protect and to Ensure Human Rights (Eckart Klein ed., 2000).

11 See the Lüth Case, as part of the jurisprudence of the Federal Constitutional Court of Germany, BVerfGE 7, 198 (1958) (Film Director Case).

12 See Erica-Irene Daes, Freedom of the Individual under Law: A Study of the Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Ar- ticle 29 of the Universal Declaration of Human Rights, U.N. Doc. E/CN4/Sub.2/432/Rev.2, at 197-202 (1983).

13 So, certain criteria should be satisfied. For example, the Basic Law of Germany enumer- ates five requirements that apply generally to limitations on rights, and they can be found in Article 19: (a) The guarantee of an untouchable core as specified by Article 19(2) stat- ing: “In no case may the essence of a basic right be infringed.” Of course, defining the “core” of the right is quite subjective, and case law is usually expected to provide further elucidation. Nevertheless, the Federal Constitutional Court has seen little need to refer to Article 19(2). In pertinent cases, it prefers to apply the principle of proportionality; (b) the statute restricting the right must apply generally, and not solely to an individual case, serving in this respect a dual purpose: ensuring the separation of powers, by prevent- ing the legislature to get involved in individual cases, and also protecting the individual from arbitrariness; (c) there must be an express restriction: the statute must name the basic right and the relevant article, so the legislature can only restrict rights intention- ally, not incidentally or accidentally. Article 19(1) puts forth an obligation to quote in the statute the restriction of a constitutional right, that is, such limitation can only be placed by legislation and not by administrative ordinances or decrees; (d) there must be legal certainty, the statute must be clear and unequivocal; (e) it must satisfy the three tests of the principle of proportionality: suitability, necessity and appropriateness. See Pati, supra note 4.

238 Chapter IV

Rights, and the restrictions regarding the exercise of such right.�� The first has to do with the formulation of the substantive scope of a right and its express delimitation by means of specific qualifications.�� The latter, more pertinent concept of limitations upon rights pertains to the potentiality of restriction of the exercise of a right by the specific limitation clauses provided for in the said Convention. Generally speaking, in human rights treaties there are three types of limitation clauses: – limitations attached to a certain provision of a right for certain prescribed pur-

poses (national security, public safety, health, morals, rights of others, etc.) – limitations referring to certain activities (e.g. political activity of aliens; activities

subversive of treaty rights) – limitations referring to the suspension of a group of rights in public emergencies

threatening the life of a nation (war, earthquake, etc.)

It has been stated that emergency and normalcy limitations “are closely linked and … rather than being two distinct categories of limitations, they form a legal continu- um,”�� which in all circumstances must not obliterate the core of the rights inherent in the human person. This conceptualization would, however, overlook the fundamen- tal change in legal regimes that the invocation of a state of emergency would bring about: as it will be seen, some important rights that are not “emergency-proof,” can be “obliterated,” as there is no protection of their core. To conceive of a “continuum” between the law in peace and the law in the state of exception would also remove inhibitions that unscrupulous leaders of a country would have in declaring a state of emergency, and once declared, perpetuate it – as emergency law would only differ in degree, but not quality, from the law in normal times. The effect could be a net loss for the prospect of an order of human dignity, as it would tend to minimize, in the public’s perception, the distrust that any member of the political elite should en- counter when he or she contemplates taking that ultimate step. That step should only be taken when all other measures available to resolve a crisis situation endangering the survival of an order committed to human rights and fundamental freedoms have been exhausted or have no conceivable chance of success.

After World War II, the new values-based international legal order still stays the hand of the ruler even in the fundamentally different legal order of a state of excep- tion, or emergency. It does so by way of the “derogation clauses” to human rights

14 Loukis Loucaides, Essays in the Developing Law of Human Rights 178-218 (1995).

15 For example, Article 11, freedom of peaceful assembly, automatically excludes from the scope of the right ratione materiae an assembly that is not peaceful; Article 12, the right to marry and to found a family pertains, expressis verbis, only to men and women of mar- riageable age, according to national laws governing the exercise of this right, as long as this legislation does not interfere with the core of the right. See Rees v. United Kingdom, (1987) 9 EHRR 56, para. 50; F v. Switzerland, (1988) 10 E.H.R.R. 411, para. 72.

16 Anna-Lena Svensson-McCarthy, International Law of Human Rights and States of Ex- ception – With Special Reference to the Travaux Préparatoires and Case-Law of the Inter- national Monitoring Organs, in 54 Int’l Studies in Human Rights 49, 721 (1998).

239Due Process in Times of Emergency and Terrorism: International Law

conventions. These emergency clauses, the subject of this Chapter, chart a “middle course” the international community has found to reconcile the “recognition of the legitimate right of sovereign states to defend their constitutional order” and the “pre- vention of misuse of the right to emergency”�� by states who would abuse that right. Different from those limitations which authorize governments to impose certain restrictions on the enjoyment of certain human rights during times of normalcy,�� which are of a permanent nature, the derogations group of restrictions would only operate in exceptional circumstances, namely and precisely when the life of the na- tion is threatened. Invocation of the derogations provision could affect all the rights, except the ones listed under the rubric of non-derogable rights, and such derogation would only be valid for a certain period of time.�� It would generally require a strict procedure to be followed by the state in order to ensure the necessary international accountability, which would in turn curtail or at least make difficult any potential abuse by the vast powers of the state. The respective procedure includes a declaration of a state of emergency by the state, the notification of the international community of the proclamation of the state of emergency, as well as a detailed enumeration of the rights suspended or derogated from, an elaboration upon the reasons for such sus- pensions or derogations, and the time frame predicted for those derogations to last. This procedure also implies a degree of international transparency and supervision. Furthermore, as stated, universal and regional human rights treaties feature a list of non-derogable rights to be respected even during states of emergency. Some of these rights are deemed fundamental and as such must be protected at all times; others belong to a category whose suspension would in no way help solve a crisis situation.

Guarantees of the due process of law were not expressly included amongst the list of non-derogable rights, despite the fact that during the deliberations of these trea- ties many state proposals favored their inclusion. It would have been preferable that

17 Nowak, supra note 1, at 74. 18 See Rosalyn Higgins, Derogations Under Human Rights Treaties, 48 Brit. Y.B. Int’l L. 48

(1976-1977), 281-320, for an analysis of all groups of limitations on rights. See also Alex- andre Charles Kiss, Permissible Limitations on Rights, in The International Bill of Rights 290-310 (Louis Henkin ed., 1981).

19 For a coverage of universal and regional systems of human rights protection related to emergencies and non-derogable rights, see generally Nowak, supra note 1, at 72-93; in Non-Derogable Rights and States of Emergency (Daniel Premont ed., 1996), see: Antônio Augusto Cançado Trindade, The Case-Law of the International Court of Jus- tice on Non-Derogable Rights 73; M. Cherif Bassiouni, States of Emergency and States of Exception: Human Rights Abuses and Impunity under Color of Law 125; Liliana Valiña, Inalienable Rights Within the Framework of the Inter-American System of Human Rights 269; Victor-Yves Ghebali, The Issue of the State of Emergency in the Context of the Or- ganization for Security and Cooperation in Europe (OSCE) 317; Matar Diop, The African Charter on Human and Peoples’ Rights and the Inviolability of the Fundamental Rights 421; Osman El-Hajjé, The Cairo Declaration on Human Rights in Islam and Non-Deroga- ble Rights 439. See also Rafael Rivas Posada, Los Estados de Excepción y la Protección de los Derechos Humanos, in Towards Implementing Universal Human Rights 117 (Nisuke Ando ed., 2004).

240 Chapter IV

such guarantees be declared as, in principle, untouchable. Procedurally, they would ensure needed protection for the non-derogable substantive rights to life�0 and to freedom from torture, which remain among the guarantees most violated in many emergency situations�� – even though the latter has been widely acknowledged to be a jus cogens norm.��

A. Treaty Law and Jurisprudence

1. The International Covenant on Civil and Political Rights, Article 4, and the Jurisprudence of the Human Rights Committee

In the modern international law of human rights, the origin of the derogation clauses seems to have come from a proposal of the United Kingdom to the U.N. Human Rights Commission in 1947 when the work on drafting the Covenant had just start- ed.�� Initially, this proposal was rejected,�� as it was thought that a general limitations clause or specific limitations to the scope of certain right would suffice. Later, states came to consider the importance of such a provision in situations of war or other such crisis and upheavals, when trying to restore peace and order as a necessity for the existence of a nation. The United Kingdom had expressed the view that “if such

20 Such violations of the right to life have resulted from executions without due process, deaths from ill-treatment and torture, forced disappearances and excessive use of police force. See Oraá, supra note 2, at 96, also referring to B.A. Ramcharan, The Right to Life in International Law (1985); David Weissbrodt, The Three “Theme” Special Rap- porteurs of the UN Commission on Human Rights, 80 Am. J. Int’l L. 685-695 (1986); Ni- gel S. Rodley, The Treatment of Prisoners under International Law (1987).

21 For a discussion of this issue, see Oraá, supra note 2, at 106-114. 22 While admitting that “it is sound to agree that those rights which are commonly de-

scribed in the relevant conventions as non-derogable form part of jus cogens,” Professor Klein places emphasis on the fact that such a non-derogable right “may still be restricted as in normal circumstances, according to the principle of proportionality,” further adding that in times of emergency the balancing of conflicting values on the basis of the propor- tionality principle could produce a different outcome from such balancing in normalcy situations. See Eckart Klein, Establishing a Hierarchy of Human Rights: Ideal Solution or Fallacy, Israeli Law Review (forthcoming 2008). Professor Klein further commends caution in the use of a terminology of “hierarchy of rights,” because even the concept of jus cogens does not necessarily imply a hierarchy. Id.

23 See Oraá, supra note 2, at 7. For the U.K. proposal see United Kingdom Draft of an International Bill of Human Rights (London, June 1947). Id. at 8, n.6.

24 Particularly, the United States was against the inclusion of such a provision, and insisted only on a general limitations clause. The same goes for the Philippines and Lebanon. U.N. Doc. E/CN.4/SR.126, at 3, 5-6, and 8. On the contrary, France, insisting on a derogations clause also asked that the following principles be recognized: that limitations on human rights were permissible in time of war or other emergency; that certain rights were not subject to limitation under any conditions; that derogation from the Covenant must be subject to a specified procedure and that such derogation, undertaken under exceptional circumstances, must accordingly be given exceptional publicity. Id. at 8.

241Due Process in Times of Emergency and Terrorism: International Law

a provision were not included, in time of war it might leave the way open for a State to suspend the provisions of the Convention.”�� France added that the principle of non-derogability of certain rights “was a sound and permanent safeguard” that also brings forth “an essential distinction between the restriction of certain rights and the suspension of the Covenant’s application.”�� The detailed legal regime, through listing of non-derogable rights, would somehow neutralize and prevent the potential abuses of vital rights under the extensive emergency powers of the states. In addition, France’s proposal to insert a paragraph in the derogations clause asking for the official proclamation of the public emergency aimed at preventing States “from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events.”�� Notification of the termination of the state of emergency was also added at Mexico’s initiative.��

The drafters of the ICCPR recognized that human rights for all are “the founda- tion of freedom, justice and peace in the world.”�� They were also conscious that it is an unavoidable fact that some States would at some point in time be confronted with grave situations of crisis, hence the inclusion of Article 4, which in its paragraph 1 states:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take meas- ures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsist- ent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

This provision shows that the carrot and stick approach of the drafters brought about a well-balanced provision, which, being sensitive to the vulnerabilities of a state in times of exceptional emergency, empowers the state to maintain or restore constitu- tional order, and at the same time subjects these exceptional powers to a set of crite- ria such as: the existence of exceptional threat; the necessity of official proclamation; the standard of non-derogability of certain rights; the requirement of strict necessity; the condition of compatibility with other international legal obligations; the principle of non-discrimination; and the obligation of international notification.

Whenever derogating from the Covenant and resorting to emergency powers, any government should first and foremost be concerned with the restoration of a state of normalcy giving full application to all rights contained in the Covenant. In the view of the Human Rights Committee, a State party would resort to Article 4 of the Covenant only for as long as it is indisputably confronted with such a public

25 U.N. Docs. E/CN.4/AC.3/SR.8, at 11 (Working Group) and E/CN.4/SR.42, at 5. 26 U.N. Doc. E/CN.4/SR.127, at 7. 27 U.N. Doc. E/CN.4/SR.195, at 16, para. 82. 28 Nowak, supra note 1, at 77. 29 First paragraph of the preamble of the Covenant.

242 Chapter IV

emergency which truly threatens the life of the nation.�0 It is in such times that there lies a greater risk of the abuse of the state’s right to emergency on behalf of national security, by expanding the letter and spirit of permissible limitations.�� Consequently, the condition of the existence of a strict necessity is an elementary requirement for any conduct and procedure derogating from the Covenant.�� It also necessitates that any emergency legislation remain in force only for so long as it is strictly required�� to guarantee that the “institutionalization” of a state of emergency�� does not occur; that it does not become the de facto rule, but remains an exception.

When monitoring compliance with the Covenant,�� the HRC has noted that Arti- cle 4 provides a specific regime of safeguards for the material consequences of a state of emergency. It places particular importance on the fact that “not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the na-

30 Civil war and other types of internal upheavals like social unrest, subversive activities, vandalism, guerilla war, terrorism, ethnic conflicts, etc. have been the most frequent rea- sons for states of emergency. See Nowak, supra note 1, at 78.

31 M. Cherif Bassiouni, States of Emergency and States of Exception: Human Rights Abuses and Impunity under Color of Law, in Non-Derogable Rights and States of Emer- gency 125, 131 (Daniel Premont ed., 1996).

32 According to the HRC, this requirement relates “to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency. Derogation from some Covenant obligations in emergency situations is clearly distinct from restrictions or limitations allowed even in normal times under several provisions of the Covenant. Nevertheless, the obligation to limit any dero- gations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers.” See General Comment No. 29 on Article 4, in U.N. GAOR, Doc. A/56/40 (vol. I), at 203, para. 4.

33 In the case of Israel, the HRC recommended “that the Government review the necessity for the continued renewal of the state of emergency with a view to limiting as far as pos- sible its scope and territorial applicability and the associated derogation of rights.” U.N. GAOR, Doc. A/53/40 (vol. I), at 47, para. 307. The HRC was also concerned in the case of Spain, about “the suspension of the rights of terrorist suspects under article 55(2) of the Constitution and the fact that circumstances had given rise to what amounted to permanent emergency legislation.” Furthermore, in the case of the United Kingdom, the HRC did not approve of “the excessive powers enjoyed by police under anti-terrorism laws” in Northern Ireland, “the liberal rules regarding the use of firearms by the police” and “the many emergency measures and their prolonged application.” See U.N. GAOR, Doc. A/46/40, at 45, para. 183 (Spain), and at 102, para. 411 (United Kingdom).

34 E/CN. 4/Sub. 2/1982/15, at 31, paras. 129-145. 35 Such monitoring becomes particularly important because of the fact that it is the pub-

lication of findings of violation that would exert pressure on the states and also serve as preventive of future violations. For more on derogation measures and issues related to enforcement of the Covenant’s derogation provision, see Joan Fitzpatrick, Protection Against Abuse of the Concept of Emergency, in Human Rights: An Agenda for the Next Century (Louis Henkin & John Lawrence Hargrove eds., 1994).

243Due Process in Times of Emergency and Terrorism: International Law

tion.”�� The principles of legality and the rule of law have to govern every such public emergency, so it is mandatory for a government to comply with two basic conditions before invoking Article 4(1) of the Covenant. First, “the situation must amount to a public emergency which threatens the life of the nation,” and second “the State party must have officially proclaimed a state of emergency.”�� It would not be satisfactory within the meaning of Article 4(1) to merely invoke “the existence of exceptional cir- cumstances,”�� as a justification for measures derogating from the Covenant obliga- tions. On the contrary, the State party is responsible for giving “a sufficiently detailed account” of the facts leading to a situation described in Article 4. For instance, in the view of several members of the HRC, Chile’s offering of the existence of terrorist activities and the world economic situation, which was having an adverse effect on the country, as justifications for the state of emergency, “had nothing to do with what was intended by the same term in Article 4.”�� In furthering the principle of legality, the HRC requires that “[w]hen proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers.”�0 Even so, such laws have to be in conformity with the conditions set for in Article 4. Accordingly, the HRC was concerned that in certain countries the municipal laws on “grounds for declaring a state of emergency [were] too broad and that the extraordinary powers of the President in an emergency

36 General Comment No. 29 adopted in July 2001, which replaces General Comment No. 5 of 1981. U.N. GAOR, Doc. A/56/40 (vol. I), at 202, para. 3. The HRC goes on stating that: “During armed conflict, whether international or non-international, rules of internation- al humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers. The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situa- tions than an armed conflict, they should carefully consider the justification why such a measure is necessary and legitimate in the circumstances.”

37 See General Comment No. 29 adopted in July 2001, which replaces General Comment No. 5 of 1981. U.N. GAOR, Doc. A/56/40 (vol. I), at 202, para. 2.

38 Communication No. R. 8/34, J. Landinelli Silva and Others v. Uruguay, Views adopted on 8 April 1981, in U.N. GAOR, Doc. A/36/40, at 132, para. 8.3. The HRC further reasoned: “In order to discharge its function and to assess whether a situation of the kind described in article 4 (1) of the Covenant exists in the country concerned, it needs full and com- prehensive information. If the respondent government does not furnish the required justification itself, as it is required to do under article 4(2) of the Optional Protocol and article 4 (3) of the Covenant, the Human Rights Committee cannot conclude that valid reasons exist to legitimize a departure from the normal legal régime prescribed by the Covenant.”

39 Oraá, supra note 2, at 21. 40 General Comment 29, supra note 37, ibid.

244 Chapter IV

[were] too sweeping,”�� which consequently renders them irreconcilable with the re- quirements of Article 4.

Emergency situations because of terrorist threats have been commonplace in the United Kingdom.�� Therefore, the emergency rules resorted to by the U.K. for a long time disturbed the HRC, which asked the U.K. “to dismantle the apparatus of laws infringing civil liberties which were designed for periods of emergency.”�� That means that the HRC, as the guardian of the Covenant, would only justify the types of emer- gencies in which the survival of the very nation could be jeopardized, and only for as long as such a risk is imminent. An emergency system of rules cannot be turned into a permanent or quasi-permanent internal legal system. Such a prolongation would turn them unlawful and incompatible with the principles of legality and rule of law which remain valid at all times, including emergency situations.

Having established a state of emergency within the meaning of Article 4(1) would mean relief from a number of obligations springing from the Covenant. However, in Article 4(2) a number of guarantees are identified as needing a higher standard of protection, and are thus considered prima facie non-derogable. This provision states:

No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

Thus, strictly safeguarded at all times are, namely: the right to life, Article 6; the right to freedom from torture, cruel, inhuman and degrading treatment or punishment, and medical or scientific experimentation without one’s free consent, Article 7; the right to freedom from slavery, the slave trade and servitude, Article 8; the right not to be imprisoned on the ground of inability to fulfill a contractual obligation, Article 11; the right not to be subjected to retroactive legislation (ex post facto laws), Article 15; the right to recognition as a person before the law, Article 16; the right to freedom of thought, conscience and religion, Article 18; and the right not to be subjected to the death penalty, Article 6 of the Second Optional Protocol. According to the HRC, the “[s]afeguards related to derogation, as embodied in Article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole.”��

Though the Covenant has set standards to protect such rights at all time