CYIL vol. 12 (2021)

Katarína ŠmigovÁ CYIL 12 (2021) Second, the defendant was acknowledged the right to give any explanation relevant to the charges against them and the right to own defence before the Tribunal or to the assistance of counsel which also included the right to present evidence or to cross-examine any witness. 78 Nevertheless, from a current point of view, the Nuremberg process missed e. g. the right not to self-incriminate or the right of appeal executed. 79 Even so, although the presumption of innocence was not expressly provided in the Charter, as prosecutor Jackson stated, it was a de facto part of the whole process. 80 The fairness of the whole process might be assessed when the outcome is analysed, namely the fact that out of the 24 charged (one in absentia ), 3 were acquitted. WWII, and the subsequent legal development, is considered to be a milestone not only for international criminal law but also for international human rights law. Both these two legal areas are in principle two sides of the same coin by referring to an individual, either to their rights or obligations. Nevertheless, because of the Cold War, international criminal law development was a sleeping beauty for more than 40 years, whereas international human rights law managed to promote its development, although often toothlessly, at least at the universal level. 81 Because of these communicating vessels, it is important to look into some universal human rights instruments. The right to a fair trial was reaffirmed already within the Universal Declaration of Human Rights in 1948. 82 In relation to legally binding treaties, the golden standard for a fair trial provision was achieved in the International Covenant on Civil and Political Rights adopted in 1966 (hereinafter ICCPR). 83 This is an Article that was literally an original Article within a draft of a statute of the ICC. 84 However, during the preparatory works, the rights of an accused within fair trial requirements had been elaborated into a provision that went even further than art. 14 of the ICCPR. 85 Moreover, apart from art. 67 of the Rome Statute that sets the rights of an accused, the current legal framework of the Rome Statute includes also applicable law specified by art. 21 of the Statute that comprehends internationally recognized human rights, rights of suspects, or detailed Rules of Procedure and Evidence. Overall, to give focus on the most important explicit advancement, 86 a strong 78 The ILC expressly stated in its commentary upon the 5th Nuremberg Principle that the expression “fair trial” should be understood in the light of the provisions of the Charter of the Nuremberg Tribunal. Nuremberg Principles, para. 109, see supra note 5. 79 See art. 26 of the Nuremberg Charter according to which the Judgment shall be final and not subject to review. All the appeals were therefore denied. Apart from these specific fair trial shortcomings, the most criticism was expressed towards general principles of criminal law that were commented as not having been applied, e. g. nullum crimen/poena sine lege . 80 Opening Statement, see supra note 67. 81 Basically, it has universally been easier for states to accept human rights protection of an individual than to allow establishment of an international judicial body that could examine also high officials acts that are often related with State acts. 82 UN General Assembly, Universal Declaration of Human Rights , 10 December 1948, 217 A (III). 83 UN General Assembly, International Covenant on Civil and Political Rights , 16 December 1966, United Nations Treaty Series, vol. 999, p. 171. 84 See also art. 21 of the ICTY Statute and art. 20 of the ICTR Statute. 85 E. g. a right of the accused to make an unsworn oral or written statement in their defence, and not to have imposed on themselves any reversal of the burden of proof or any onus of rebuttal. 86 For more detailed analysis see e. g. SCHABAS, W. A., The International Criminal Court: A Commentary on the Rome Statute , 2 nd ed., Oxford University Press, 2016, p. 1016 et seq.

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