This module is a resource for lecturers

International legal framework

The right to a fair trial is such a fundamental right that it is embedded within all of the legal frameworks underpinning the UN Global Counter-Terrorism Strategy, introduced in Modules 3 and 4, namely international human rights law, international humanitarian law, international criminal law (including the universal instruments against terrorism, such as article 17 of the International Convention for the Suppression of the Financing of Terrorism) and refugee/immigration law. The principal focus here is on international human rights law principles, which form the benchmark of internationally agreed standards and also inform the fair trial and due process principles reflected and embedded within other legal regimes.

The starting position for identifying international recognized standards and obligations is article 14 of the International Covenant on Civil and Political Rights (ICCPR), which aims to ensure the proper administration of justice through the guarantee of a series of specific rights. This is captured within the text of article 14(1) ICCPR, which states that:

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 impartial tribunal established by law.

There are a number of other accompanying legal principles, notably here:

• Presumption of innocence (article 14(2)).
• Equality of arms (article 14(3)).
• Right to appeal a conviction and sentence to a higher tribunal (article 14(5)).
• Right not to be tried or punished again for an offence for which there has already been a conviction or acquittal (article 14(7)).

Respect for these principles by all engaged parties (notably the police or other investigators, the prosecution, the defence, the judiciary and public officials) is crucial both during the investigative and trial phases of proceedings if the trial is to be considered fair and any resultant conviction 'safe'. For instance, any failure to provide an individual with prompt access to a lawyer puts at risk the fundamental fairness of the eventual proceedings against the individual. Similarly, prejudicial comments by, e.g., members of the judiciary or other public officials implying that a suspect is guilty before that suspect has faced trial may call into question the fairness of any proceedings eventually brought. Though not examined in any detail here, it is important to note that States are also under an obligation to protect the human rights of not only the terrorist suspect, but also victims and witnesses during the investigation of terrorism cases. (See further Module 14).

A number of the elements associated with the right to fair trial, which were codified into article 14 of ICCPR, exist as customary international law obligations and are also found in other international treaties, including those governing armed conflict situations (see section on " Armed conflict") (General Assembly report A/63/223, para. 9). More specifically, a number of the universal counter terrorism instruments expressly provide for adherence to fair trial principles and upholding the rule of law. For example, article 17 of the 1999 International Convention for the Suppression of the Financing of Terrorism requires that "[a]ny person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law." Similarly, article 67(1) of the 1998 Rome Statute of the International Criminal Court (Rome Statute) makes provision for the basic requirements of a fair trial. More specifically, these comprise: the presumption of innocence; privilege against self-incrimination; the right to communicate with legal representatives freely and in confidence; the right to remain silent without such silence being a consideration in the determination of innocence or guilt; the right not to make an unsworn oral or written statement in one's own defence; and the right not to have imposed upon the accused any reversal of the burden of proof or onus of rebuttal. The combined effect of this international framework comprising international and regional treaties together with customary norms means that no State can claim that the due process guarantees associated with the right to fair trial do not apply within their jurisdiction.

Another significant quality of the right to fair trial is that although it is technically derogable under article 4(2) ICCPR, in practice it is considered to be non-derogable where this would circumvent the protection of non-derogable rights. Where derogation is allowed under article 4, it must still adhere to the fundamental requirements of a fair trial, notably the principles of legality and the rule of law. In terms of what this means in practice, the Human Rights Committee has articulated the following minimum requirements applicable during times of emergency: only a court of law may try and convict a person for a criminal offence; the presumption of innocence must always be respected; and the right to take proceedings before a court to decide without delay on the lawfulness of detention must not be diminished by any derogation from the Covenant (General Comment No. 29 CCPR/C/21/Rev.1/Add.11, para. 16; General Comment No. 32 CCPR/C/GC/32, paras. 6 and 59). Furthermore, if a trial can result in the death penalty being imposed, no derogation can be made from any fair trial safeguards. A distinguishing feature of the Arab Charter of Human Rights (adopted 22 May 2004, entered into force 15 March 2008) is that it expressly includes the right to fair trial among the rights that cannot be derogated from even in time of "public emergency which threatens the life of the nation".

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