Date of Degree
Thomas G. Weiss
Criminology and Criminal Justice | International Relations | Legal Studies | Legal Theory | Political Science
international Criminal Court, International Criminal Tribunal for the former Yugoslavia, global governance, legitimacy, justice, equality of arms
As global legal governance institutions exercise increasing coercive power, including through the prosecution and incarceration of individuals, such institutions require greater legitimacy. An essential but often overlooked source is the right of the accused in mass-atrocity trials to effective legal protection, which constitutes a “legal legitimacy” based on liberal norms of criminal justice. The two most important sources of legal legitimacy are: “legality,” that is, the non-retroactive enforcement of crimes and punishment; and “defense parity,” institutional and procedural guarantees of substantive equality between the defense and prosecution before and during trial. The dissertation argues that the implementation of defendant rights and the quality of fairness thereby achieved by trials are weakened by the effect of two political features of international criminal justice: institutional power and human rights bias towards prosecution. First, institutional power is exercised by states and intergovernmental organizations through the creation and modification of the structural and procedural rules that shape the legal interaction between the major participants in trials—judges, prosecutors, and defendants and their counsel. Second, these political actors demonstrate a bias towards successful prosecution, as a projection of the victim-focus of the international human rights protection regime into criminal justice. These issues are explored through case studies of the Yugoslavia tribunal and the International Criminal Court. The effect of these factors on the pre-trial and trial dynamic between the prosecution and defense is to generate significant weaknesses in the ability of defense counsel to adequately represent their clients. International criminal trials are as a consequence significantly less fair and legitimate than is commonly presumed.
Burke, Martin J., "The Legitimacy of Global Legal Governance: Institutional Power and Human Rights Bias in International Criminal Justice" (2017). CUNY Academic Works.