William & Mary Bill of Rights Journal


Göran Sluiter


By their very nature, international criminal tribunals will in their operation impact individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings.

However, the circumstances under which international criminal tribunals are established are often complex, while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position and rank in the applicable sources of law during the creation of international criminal tribunals. In practice, the effect of human rights law in international criminal proceedings has proven at times to be problematic. Without elaborate written procedural rules, it may be uncertain what the precise scope of the proceedings’ interference with individual rights and liberties is, or ought to be.

On April 26, 2017, the Constitutional Chamber of the Kosovo Specialist Chambers (KSC) reviewed the due process content of the KSC’s newly drafted Rules of Procedure and Evidence (RPE). It concluded that the RPE adopted by the Judges were inconsistent with human rights in a number of ways, especially because of its lack of sufficiently detailed rules governing investigations which interfere with individual rights, such as search and seizure operations and wiretaps. It raises the question—the subject of this Article—whether the KSC has raised the bar in terms of the principle of procedural legality and whether the current loose approach in international criminal proceedings to investigative powers is in violation of international human rights law. If this research question is answered in the affirmative, it would necessitate a significant overhaul of the organization of international criminal proceedings, especially in its pretrial phase.

In order to answer the aforementioned research question, I first provide an overview and analysis of the position of human rights in international criminal proceedings. Next, I examine how international criminal proceedings have been organized in relation to international human rights law. In Part III, my focus shifts to the KSC, where I first provide information and background on the creation of the KSC before ultimately analyzing the April 2017 judgment of the KSC’s constitutional chamber. Its impact on the protection of rights and the organization of international criminal proceedings will be the subject of Section V.B. The Article ends with concluding observations.