The global developments have shown one thing clearly: there is a lack of guidance and clarity when it comes to using DDE in the courtroom. Due to the fast evolution of digital technology and the ... Show moreThe global developments have shown one thing clearly: there is a lack of guidance and clarity when it comes to using DDE in the courtroom. Due to the fast evolution of digital technology and the (often, by design) slow evolution of courts and tribunals, the treatment of DDE within and between national and international accountability fora suffers from an absence of uniformity at best, and a lack of any useful guidance at worst. The Leiden Guidelines on the Use of Digitally Derived Evidence in International Criminal Courts and Tribunals (“The Leiden Guidelines”) were created to address this legal lacuna by examining the various ways in which DDE has been treated in international criminal law. The Guidelines identify overarching standards of treatment, derived from the jurisprudence of international criminal courts and tribunals (“ICCTs”), that practitioners should consider when collecting and tendering DDE. Show less
The drafters of the Rome Statute sought to accord human rights a central place within the legal framework of the International Criminal Court (ICC). This was done not only through numerous... Show moreThe drafters of the Rome Statute sought to accord human rights a central place within the legal framework of the International Criminal Court (ICC). This was done not only through numerous provisions on the rights of the accused, victims, and witnesses, but also through the inclusion of the overarching Article 21(3) of the Rome Statute. Article 21(3) Rome Statute requires that the interpretation and application of all ICC law be consistent with internationally recognized human rights. While this provision has been employed on numerous occasions to bolster human rights protection in the ICC legal framework, it is not without its limits. In a series of decisions over the past few years, ICC judges have placed limits on the protections that can be read into the ICC legal framework on the basis of Article 21(3). Beyond stating that the ICC ‘is not a human rights court’, the decisions in question articulate no clear justification for the limitations imposed on Article 21(3). The present article analyses these decisions and identifies the underlying rationale for the Court’s approach: the principle of speciality. However, the picture is further complicated by the judges’ willingness to overlook the principle of speciality when particularly serious violations of human rights are involved. This leaves the precise contours of human rights protection in the ICC legal framework undefined. Show less
The story of international criminal justice does not end when the verdict is read; for both the affected communities and for the individual accused, the story goes on. This article explores the... Show moreThe story of international criminal justice does not end when the verdict is read; for both the affected communities and for the individual accused, the story goes on. This article explores the situation facing some accused before the International Criminal Court (ICC) once their trial is over, their sentence (if convicted) is served, and they are released from custody. In many cases, the former ICC accused will simply return home and continue on with a life similar to the one they led before their ICC trial. But for some this will not be possible, particularly where the situation in their home country is such that they would be at risk if they returned there. In that case, they will need to find another country where they can safely reside, but such efforts will often be hindered by a reluctance on the part of states to host persons accused of international crimes, no matter the outcome of the trial. In these cases, such individuals can often become stuck in the legal limbo of being ‘undesirable but unreturnable’ (hereinafter, UbU): undesirable because they are unwelcome in other states, but unreturnable because they cannot be returned home. This article explores what the expression ‘undesirable but unreturnable’ means, how the situation that it describes arises in general international law, and in particular how the situation arises in the ICC context. The article then looks at the practice of the ICC to date in dealing with former accused who face being caught in the ‘UbU’ limbo, and goes on to set out three ways in which the ICC could play a bigger role in addressing the issue. Show less
