The Role and Extent of a Proportionality Analysis in the Judicial Assessment of Human Rights Limitations within International Criminal Proceedings

The aim of this monograph is to analyze how the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court have resorted to proportionality and other limitation techniques when placing implied external limits upon the exercise of substantive and procedural human rights enjoyed by the accused and other actors affected by international criminal proceedings. Implied external limits in this context are defined as those limits that override the exercise of a human right on public interest grounds or on grounds relating to competing human rights and that either fall outside the scope of a limitation/qualification clause of an international criminal court's internal legal instruments or go beyond its express and ordinary terms. The present monograph will point to various sources of legal uncertainty which international criminal courts have generated in the limitation process of those human rights relevant to international criminal proceedings and to the definition of international crimes. The monograph will examine the relation between human rights, limitations on human rights standards and proportionality under international criminal procedural law and international criminal law (understood substantively) in light of the limitation and proportionality practices of international human rights monitoring bodies.

Table of Contents:
Excerpt of Table of Contents Acknowledgements; Abbreviations; Table of cases and statutes; Introduction: Purpose, Methodology and Scope of the Monograph; 1 Purpose of the Monograph; 2 Underlying Methodology; 3 Scope of the Monograph; 4 Outline of the Chapters; I Conceptual Tools for Assessing Limitations upon the Exercise of Human Rights; 1 Introduction; 2 Justifications of Interferences with Human Rights; 3 Conclusion; II Institutional and Regulatory Context Underpinning the International Criminal Courts’ Human Rights Limitation Analyses; 1 Legal Basis for Human Rights Enforcement; 2 Procedural Guarantees at the Investigation and Interrogation Stages; 3 The Rights of the Accused; 4 Victims’ Participation Rights; 5 Substantive Human Rights; 6 Absence of Derogation Clause and Presence of Limitation and Qualification Clauses within International Criminal Procedural Law; 7 Role of the Legality Principle under International Criminal Procedural Law and International Criminal Law; 8 Structural Difficulties in Drawing on a Hierarchy of Human Rights Model for Resolving Conflicts of Rights; 9 Methods of Interpretation under International Criminal Procedural Law and International Criminal Law; 10 Conclusion; III Formation of a Generic Justificatory Framework for Assessing External Limits upon any Fundamental Right or Defense Right; 1 The ICTY and ICTR; 2 The ICC; 3 Conclusion; IV Implied External Limits on the Right to Self-Representation through the Assignment of Defense Counsel and of Standby Counsel; 1 Introduction; 2 Conceptions of the Right to Self-Representation ; 3 Qualification Clauses Affecting the Exercise of the Right to Self-Representation; 4 Emergence of a Justificatory Framework for Reviewing Interferences with the Right to Self-Representation; 5 Elevation of the ‘Interests of Justice’ to an Overarching Legitimate Objective and the Presence of a Mixed Conflict of Values; 6 Recognition of a Means-Test; 7 Mechanism of ‘Practical Concordance’; 8 Recognition of a Strict Proportionality Requirement; 9 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective; 10 Adoption of a Teleological Method of Interpretation; 11 Confrontation of Specific Justificatory Criteria with Generic Justificatory Criteria; 12 Influence of International Human Rights Law; 13 Conclusion; V Implied External Limits on the Right to Cross-Examination through Absolute Witness Anonymity and Rolling Disclosure Measures; 1 Introduction; 2 Terminology; 3 Impact of the Pre-existing Qualification Clauses Affecting the Right to Cross-Examination on the Judicial Admission of Absolute Anonymity Measures; 4 Emergence of a Justificatory Framework for Reviewing Implied External Limits on the Accused’s Right to Cross-Examination; 5 The Legitimate Objective Requirement and the Presence of a Mixed Conflict of Values; 6 Recognition of a Means-Test; 7 Mechanism of ‘Practical Concordance’; 8 Recognition of a Strict Proportionality Requirement; 9 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective; 10 Adoption of a Teleological Method of Interpretation; 11 Legal Uncertainty Generated by the Multiplicity of Justificatory Criteria; 12 Influence of International Human Rights Law; 13 Conclusion; VI Implied External Limits upon the Accused’s Rights to Effective Participation in his Trial and to be Presumed Innocent; 1 Introduction; 2 Regulatory Framework; 3 Justificatory Framework; 4 Mechanism of ‘Practical Concordance’; 5 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective; 6 Confrontation of Specific Justificatory Criteria with Generic Justificatory Criteria; 7 Influence of International Human Rights Law; 8 Conclusion; VII Incidental Implied External Limits Placed upon Substantive Human Rights: The Rights to Freedom of Expression and to Privacy; 1 Introduction; 2 Emergence of a Justificatory Framework; 3 Outline of the Specific Justificatory Criteria and Influence of International Human Rights Law; 4 Mechanism of ‘Practical Concordance’; 5 Failure of the Hierarchy of Rights Model to Capture the Judicial Rulings under Review from a Conflict of Rights Perspective; 6 Confrontation of Specific Justificatory Criteria with Generic Justificatory Criteria; 7 Conclusion; VIII Implied Internal Limit Placed on the Right of Silence and Judicial Refusal to Place Any Implied Limits on the Right Not to Self-Incriminate; 1 Introduction; 2 Regulatory Framework; 3 Evolution of the International Criminal Procedural Case-Law; 4 Influence of International Human Rights Law; 5 Conclusion; General Conclusions; 1 Overview of Implied External Limits upon Human Rights Validated or Endorsed by International Criminal Courts; 2 Legal Uncertainty in the International Criminal Courts’ Judicial Treatment of Human Rights Limitations; 3 Legal Bases for Placing Implied External Limits upon Those Human Rights Relevant to International Criminal Proceedings; 4 Final Considerations; Bibliography; Index

About the Author :
Nicolas A. J. Croquet, DPhil in Law (2011), University of Oxford, is an Advocate at the Brussels Bar. He practices in the areas of international trade law, European environmental law, climate change law and human rights law.