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This chapter discusses the trial of alleged terrorists by special tribunals. It demonstrates that the right to equality before the courts — one of the most important aspects of the right to non-discrimination — protects foreign defendants from being treated differently on the basis of their nationality both in times of peace and armed conflict. The establishment of special tribunals that only have jurisdiction to try foreign terrorist suspects could therefore only be regarded as justified if it was supported by compelling reasons. Yet it is impossible to discern objective and reasonable grounds for subjecting foreign, but not domestic, terrorist suspects to a special trial system. Rather than being a suitable, and thus proportionate, means of protecting national security, the one-sided focus of such tribunal systems is motivated by political considerations and may have serious negative impacts on the legitimacy, and thus the effectiveness of anti-terrorism efforts.

In examining the access to international justice, an issue to consider is the conditions of admissibility of petitions lodged with international organs of protection of human rights. The right to an effective remedy is a basic pillar of the rule of law in a democratic society. It comes together with the guarantees of the due process of law. Another related issue raised in practice is that of the recognition of juridical personality.There is a reassuring convergence in the evolving case-law of the European and Inter-American Court of Human Rights concerning the basic right of access to justice and to a fair trial. This is one of the rights most often raised in contentious cases before those two international human rights tribunals.

This chapter examines a number of theories of fairness and how they might inform our understanding of what fairness means in the context of international criminal trials. It also discusses the interpretation of fairness by international criminal tribunals. It argues that the right to a fair trial is closely related to theories of legitimacy, procedural justice, and rule of law, and principles derived from those theories can inform our interpretation of fairness in international criminal trials. However, the theoretical concept of fairness has a particular meaning when it pertains to the right to a fair trial, which represents a unique construct of fairness, comprised of several minimum guarantees and an overarching requirement that the accused should be given a fair opportunity to present his or her case in open, transparent and impartial procedures, in accordance with clear law and procedures articulated in advance of trial.

This chapter provides some context on fairness in international criminal trials. It discusses the establishment of the international criminal tribunals and the growth of international criminal procedure as a discipline. It distinguishes between international and hybrid criminal tribunals and argues that the key factor in determining whether a tribunal is international is whether its founding instrument was part of an international treaty or instrument. It analyses the nature of international criminal procedure against some key theories on the classification of legal systems, and discusses the role of judges in procedural law-making before the tribunals. It argues that, while human rights jurisprudence on the right to a fair trial cannot be ignored in assessments of the fairness of international criminal trials, such standards do not enunciate best practice, given that the jurisprudence only provides illustration on breaches of these rights and look at whether proceedings ‘as a whole’ were fair.

‘Ordinary’ employment contracts—including those of domestic servants—have been deemed to attract diplomatic immunity because they fall within the scope of diplomatic functions. This chapter highlights the potential for conflict between these forms of immunity and the rights of the employees, and reflects on cases in which personal servants of diplomatic agents have challenged both the existence of immunity and the scope of its application. The chapter examines claims that the exercise of diplomatic immunity might violate the right to a fair trial under Article 6 of the European Convention on Human Rights and the way in which courts have dealt with these issues. The chapter analyses diplomats’ own employment claims and notes that they are usually blocked by the assertion of immunity, but also reflects on more recent developments in which claims had been considered which were incidental to diplomatic employment (eg Nigeria v Ogbonna [2012]).

This concluding chapter reviews and summarises the key themes addressed over the course of the book – including the elaborate and ritualistic nature of the public performances played out in court; the evident marginalisation of lay court users; and court users’ perceptions of legitimacy of the court process and its outcomes. The final part of the chapter briefly considers the implications of the study findings for policy and practice. Here, it is argued that that the position of victims and witnesses at court has considerably improved over the past two decades, but could yet be improved much further in terms of the treatment they receive throughout the judicial process. With respect to defendants, it is noted that their marginalisation within the court process and stance of ‘passive acceptance’ have troubling implications for their ability to exercise fully their right to a fair trial. It is suggested that procedural justice perspectives on court processes and interactions can help to identify ways of challenging defendants’ passivity and building their capacity to participate effectively in the judicial proceedings which concern them.