IDEA Research Seminar - Procedural and Substantive Justice in International Criminal Trials

Tom Hancocks will be presenting for approximately half an hour, which will be followed by an informal discussion. All are welcome and there is no need to book.

There is a dilemma at the heart of many international criminal trials. This is a dilemma between procedural justice (i.e. fair hearings, rules of evidence, rights to appeal) and substantive justice—punishing those charged with heinous violations of international law.

Often, as was the case in the trials of Milosevic and Hadzic, meeting the strict requirements of procedural justice means that substantive justice is not achieved, because the defendants die before conviction. This means that those accused of serious legal and moral wrongdoing are often not formally found guilty, and subject to appropriate punishment. This, even though there is overwhelming evidence available to the international community that the individual in question is indeed guilty of the crimes they are charged with. 

In this talk, I want to consider this dilemma between procedural and substantive legal justice. I reject the view developed by some authors (Luban, 2010) that the legitimacy of international trials is contingent only on their procedural fairness. I then develop the idea of ‘thin proceduralism’ – a weaker standard of procedural justice for international trials which I claim better ensures substantive justice while maintaining some of the important virtues of procedural justice.