The Right to a Fair Trial in International Law

1052 Pages·2020·9.152 MB·English

by  Amal Clooney, Philippa Webb

The Right to a Fair Trial in International Law

The Right to a Fair Trial
in International Law
AMAL CLOONEY AND PHILIPPA WEBB
Editorial Assistants:
VERA PADBERG, KATHARINA LEWIS, SAMARTH PATEL,
AND GIULIA BERNABEI
1
3
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For George: my love and inspiration every step of the way,
and for our children, whose arrival caused a beautiful delay.
Amal Clooney
For Eric, Charles, and Elodie— this is where all my time went. Thank you
for giving it so generously and for being my love, light, and inspiration.
Philippa Webb

Foreword
Sir Howard Morrison KCMG CBE QC
The fundamental principle of the rule of law is that there is a state of affairs in
which law rules and in which people are equally subjected to the law. The branches
of the rule of law include access to justice, the principle of limited government, the
principle of separation of powers, the principle that the law must achieve a certain
quality and the principle that the law must guarantee certain basic rights.1
The right to a fair trial is one of the most fundamental rights that underpins the rule
of law. When I became a judge at the International Criminal Tribunal for the former
Yugoslavia, I pledged to perform my duties ‘honourably, faithfully, impartially and
conscientiously’. It is a pledge that I repeated when I was sworn in at the International
Criminal Court. These are not words to be taken lightly— they infuse and guide every
decision that I make on the Bench. As I stated in a joint opinion as a member of the
Appeals Chamber: ‘[e]n ding impunity is only meaningful if it happens in full accord-
ance with the values and principles that underpin the criminal justice process in an
open and democratic society’. And I recall the words of Judge David Hunt of the ICTY,
who observed that the ‘Tribunal will not be judged by the number of convictions which
it enters, or by the speed with which it concludes [its work], but by the fairness of its
trials’.
Despite the importance of the right to a fair trial, there has not yet been a compre-
hensive, authoritative book that judges, counsel, and defendants could consult to deter-
mine what the right means under international law. Although there are excellent books
on specific treaties or jurisdictions, the huge task of sourcing, comparing, and distilling
the vast jurisprudence and documents that make up the international standards has
not been attempted to date. I am delighted that Amal Clooney and Philippa Webb have
taken on this challenge.
Amal and Philippa are particularly well placed to have authored this book. As highly
respected practitioners at the English, New York, and International Bars, as well as
academics who teach international law, they are able to draw on their broad experi-
ence and deep knowledge of public international law, international criminal law, and
human rights. I am pleased to count Amal and Philippa as both colleagues in the com-
plex world of international law and highly regarded friends. Knowing their individual
and powerful characters, coupled with formidable intellectual abilities, it came as no
surprise when I learnt that they were about to embark upon this project. There could
1 Mary Arden, ‘The Changing Judicial Role: Human Rights, Community Law and the Intention of Parliament’
(2008) 67(3) Cambridge Law Journal 487.
viii Foreword
be no better combination of current experience and focused legal talent. It is equally no
surprise to see the outstanding fruits of their impressive labours.

The authors have produced a magisterial book that compiles and analyses all the
sources of international law relevant to a fair trial and distils them into practical guid-
ance with respect to each component of the right. They are able to identify areas of con-
vergence and divergence among international human rights bodies, to identify gaps in
protection, and signal the preferred approach. This will be the global reference for the
most frequently litigated human right in the world.
This book will be invaluable not only to judges, but also to all the users and stake-
holders of criminal justice systems, whether domestic, regional, or international. I can
imagine it being consulted by a judge determining a motion to call a witness, a defence
counsel seeking a retrial, or a victim’s representative making submissions on the right
to an interpreter. A civil society leader may draw inspiration for their next campaign
from the chapters on presumption of innocence, public trial, undue delay, or equality.
And an international lawyer formulating a strategy for a client who has suffered an un-
fair trial would be well served by consulting the chapter on remedies. It should be a ref-
erence for every prosecutor or judge who wants to be fair; and for every defence counsel
who wants to give their client the best chance of a just outcome in court.
This is the book we have been waiting for. It will be a resource— and a means— for
improving the fairness of trials around the world. The authors have performed a great
public service in producing it, and I commend it to anyone interested in defending and
advancing justice around the world.
Preface and Acknowledgements
This book was borne out of necessity. In our work representing political prisoners, we
realised that there was no comprehensive reference book setting out the rights and
remedies applicable to criminal trials under international law. So, against the counsel
of many sage advisers who warned us that the enormity of this task was irreconcilable
with busy careers (and having a balanced life), we set about writing this volume. We
have aimed to state the law as it stood at 1 January 2020.
From the outset, our process has been a collaborative one. Although we divided up
drafting responsibilities by chapter (allocating the Introduction and c hapters 6, 7, 9 and
11, 12, and 13 to Philippa and chapters 1, 2, 3, 4, 5, 8, 10, and 14 to Amal), we have dis-
cussed, reviewed, and commented on each other’s drafts in detail.
We have also collaborated with a great number of others to whom our thanks are due.
First, the book would not have been possible without the contribution of our friend
and Editorial Assistant, Ms Vera Padberg. Vera is a brilliant, indefatigable, no-n onsense
lawyer who has particular expertise in international human rights law. She was indis-
pensable to ensuring that the research underlying the chapters was complete and that
there was consistency in the structure and approach across the book. Her work was
rigorous, exact, and clear and we are grateful to her for her enormous contribution to
the end result.
We would also like to thank Ms Anna Bonini, one of the most superb lawyers we
have worked with, who also happens to be one of the loveliest human beings we have
encountered. Anna provided research and drafting assistance relating to chapters 1 and
3 and much other assistance over the years that this work was undertaken.
We would also like to express our gratitude to the three other Editorial Assistants
and members of our core research team: Katharina Lewis, Samarth Patel, and Giulia
Bernabei. Kat and Sam joined the team late in the day, but both contributed very valu-
able legal research and editorial assistance. We are very grateful to Sam, a talented fu-
ture barrister, for his efficiency, precision and team spirit. Particular thanks go to Kat, a
brilliant lawyer, for her professionalism, attention to detail, and good humour for many
months of her life to ensure the book was fully updated and ready to go to print. Thanks
are also due to Giulia, a legal scholar and academic, for her impressive dedication to the
project. She has conducted research and editorial checks with enthusiasm and preci-
sion at all times.
We thank Matthew Nelson, who provided in- depth research on a number of chap-
ters, including c hapters 2, 6, 7, 8, and 12, as well as cross-c utting research on juvenile
fair trial rights and the concept of fairness. He was our lead researcher for all the con-
tent relating to the drafting history of Article 14 of the International Covenant on Civil