Judicial Creativity at the International Criminal Tribunals

This chapter highlights the evolution of the ad hoc Tribunals’ approach to the specificity of indictments. This is an issue at the very heart of the fairness of international criminal justice and reveals important aspects of the ad hoc Tribunals’ commitment to issues pertaining to the fundamental rights of the accused to the presumption of innocence, fair trial, and due process. It is evident from the early jurisprudence of the Yugoslavia Tribunal that significant latitude was afforded to the Prosecutor in designating both the nature of the charges against accused and the factual parameters upon which the charges were based. The chapter highlights the shift away from non-specific indictments towards a more comprehensive indictments regime in which the rights of the accused were more robustly taken into consideration. In so doing, it is clear that the bench were acutely aware of the clear standards established by international human rights law.

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