Saturday, February 2, 2013
Mark Berger (University of Missouri at Kansas City - School of Law) has posted The Right to Silence in the Hague International Criminal Courts (University of San Francisco Law Review, Vol. 47, No. 1, 2012) on SSRN. Here is the abstract:
The War Crimes Tribunals and the International Criminal Court were established as international judicial institutions charged with the task of prosecuting individuals responsible for committing such human rights offenses as genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and violations of the laws or customs of war. These judicial bodies function in much the same way as domestic criminal courts and as such they have had to balance the institutional goal of prosecuting human rights offenders with the need to respect appropriate limits on the exercise of their authority. This article explores how that balance has been achieved with respect to the privilege of silence, a right which is widely recognized as a necessary restraint on the exercise of criminal law enforcement authority. It looks at limitations developed for the questioning of suspects, use of adverse inferences against those who maintain their silence, limitations on the authority to compel the production of non-testimonial evidence, application of the privilege of silence to witnesses, restraints on the imposition of discovery and disclosure requirements on suspects, and the use of the exclusion remedy where applicable standards have been violated.