In the United States, the right to a fair trial in criminal proceedings is protected under the Fifth and Sixth Amendments to the U.S. Constitution as well as by the constitutions and laws of the constituent states. The Fifth Amendment guarantees “due process of law”Footnote ¹ while the Sixth Amendment articulates a number of discrete rights, including to a speedy and public trial, by an impartial jury drawn in a prescribed manner (when the crime carries a sentence of more than six months or more), to be informed of the nature and cause of the accusation, to “be confronted with” the witnesses against him and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.Footnote ²

Each of these rights has been addressed by U.S. courts repeatedly over time and each is accordingly the subject of a very large body of judicial interpretation. In those decisions, however, the rights are seldom conceived or described in terms of human rights.Footnote ³ A rare exception (which actually preceded the emergence of the field of international human rights law) was Justice Hugo Black's observation in 1938 that a criminal defendant's right to assistance of counsel “is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.”Footnote ⁴ He continued:

What accounts for the paucity of international human rights references in the U.S. criminal law context? The right to a fair trial found clear expression in the 1948 Universal Declaration of Human Rights,Footnote ⁶ which was prominently a U.S. initiative. Moreover, most of the rights protected by the Fifth and Sixth Amendments find analogues in the International Covenant on Civil and Political Rights (ICCPR), to which the United States has been a party since 1992, yet that treaty is infrequently referred to (much less applied) in U.S. criminal proceedings.Footnote ⁷

The emergence of international tribunals (both human rights courts and international criminal courts) in recent years has produced a rapidly growing body of decisions relevant to the concept of a fair trial that provides a very substantial international jurisprudence on the topic. Arguably, many of the rules and principles adopted in those decisions have now become binding on all states under customary international law. At the least, they provide a useful yardstick by which to evaluate and measure the protections provided under U.S. law. Still, one seldom finds any reference to them in U.S. decisional law on criminal law or procedure.

Surely one cannot ascribe that fact simply to a belief in the innate superiority of the U.S. approach to criminal law and procedure, much less the notion that nothing useful can be learned from considering what the international community as a whole has to say or how international courts and human rights bodies have interpreted and applied this developing body of international legal principles.

Is “nativism” perhaps to blame? Is there something peculiarly “sovereign” about the workings of the domestic criminal justice system (at both the state and federal levels) that disinclines defense counsel, prosecutors, and the courts alike to look beyond our borders to possibly relevant and informative decisions of foreign or international courts?

One answer, perhaps, lies in the particular difficulties in identifying and accessing those decisions. Without some specialized training, it can be daunting (at the least very time-consuming) to conduct effective research into how international tribunals (to say nothing about foreign courts) have addressed the various issues typically presented by Fifth and Sixth Amendment challenges in cases pending in U.S. courts. Trying to extract common principles, themes, and insights from these varied sources from different bodies and jurisdictions can be even more challenging.

In this respect, The Right to a Fair Trial in International Law by Amal Clooney and Philippa Webb offers a rich, timely, and welcome resource for practitioners, courts, and academics alike. Both authors are experienced practitioners (qualified UK barristers who are also admitted to the New York Bar) with expertise in international criminal law, international human rights law, and public international law. Clooney was a prosecutor at the International Criminal Tribunal for the Former Yugoslavia as well as the Special Tribunal for Lebanon, and clerked for Judges Vereshchetin, Elaraby, and Berman at the International Court of Justice (ICJ). She has frequently represented political prisoners and victims of mass atrocities, including genocide and sexual violence. In 2021 she was appointed special adviser to the prosecutor of the International Criminal Court on Darfur. Webb currently teaches public international law at King's College London. She also has extensive experience in international courts and tribunals, having served as Judicial Clerk to ICJ Judges Higgins and Owada and as special assistant and legal officer to Judge Higgins during her presidency of the Court. She was also an associate legal adviser to the chief prosecutor at the International Criminal Court and an associate officer at United Nations headquarters.

As suggested by its title, their book focuses on international law and practice, rather than on the decisions of domestic courts under their respective national constitutions and laws.Footnote ⁸ In this effort the authors cast a wide net. They draw heavily on relevant rules and decisions of the International Criminal Court, the ad hoc criminal tribunals for the former Yugoslavia and for Rwanda, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the Kosovo Specialist Chambers, and the Special Court for Sierra Leone, among others. They also incorporate interpretations given to the relevant provisions of the various international human rights treaties by their respective “treaty bodies,” including the Human Rights Committee, the Committee Against Torture, the Committee on the Elimination of Discrimination Against Women, and the Committee on the Elimination of Racial Discrimination, among others.

Careful attention is given to a broad range of relevant instruments, declarations, decisions, and other materials from the various regional human rights systems around the world, including, inter alia, those of the Council of Europe (in particular the European Commission and Court of Human Rights), the European Union's Court of Justice, the African Commission and Court on Human and Peoples’ Rights, and the Inter-American Commission and Court of Human Rights. Reference is also made to other relevant instruments such as the Arab Charter on Human Rights, the UN Standard Minimum Rules for the Treatment of Prisoners (the “Nelson Mandela Rules”), the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, the “Siracusa Principles” on the Limitation and Derogation Provisions of the ICCPR, the International Bar Association Minimum Standards of Judicial Independence (“New Delhi Code”), the UN Basic Principles on the Independence of the Judiciary, and the UN Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty, articulated by the Working Group on Arbitrary Detention. The authors go beyond simply noting what these various instruments say to discuss how they have been applied in practice, with copious references to decisions of the various international courts, commissions, and committees.

The inclusiveness of this approach results in a broader categorization of the constitutive elements of a fair trial than one would find, for instance, in a standard U.S. rendition of the relevant constitutional requirements. The structure of the book, however, makes the substantive discussion easily accessible for practitioners and students alike.

Following a lengthy introduction that articulates the broader themes (such as the scope of the right, its status in customary international law, and its relationship to other protections), the other fourteen substantive chapters each address in detail one of the specific components of the right to a fair trial as articulated by ICCPR Article 14. In each, the authors discuss the origins, rationale, definition, and scope of the right in question with references to other relevant international instruments, what exceptions, derogations, and reservations might be permissible, whether and when the right can be limited or waived, and what remedies may be available for violations of the right, along with copious references to relevant sources including international instruments, decisions, interpretive reports, and scholarly articles.

Thus, Chapter 1 notes that “[t]he right to a competent, independent and impartial tribunal established by law is the essence of the rule of law and crucial to the fairness of any trial” (p. 67). It concludes that “[a] system of competent and unbiased judges operating without fear or favour protects any individual seeking to have their human rights vindicated through the courts. Judicial independence must therefore be given full protection in any system of government based on the rule of law” (p. 150).

The right to a public trial (which promotes the defendant's right to a fair process and “protects a defendant from a system of secret justice” (p. 196)) is analyzed in Chapter 2, along with a discussion of when exceptions might be justified. Chapter 3 focuses on the presumption of innocence (“the cornerstone of any fair criminal justice system” (p. 225)) with specific attention to the implications of ‘prejudicial statements’ and pretrial detention. The specific components of the right to know the charges “promptly and in detail” and to prepare and present a defense as an aspect of the “equality of arms” principle (and when and why it may be circumscribed) are detailed in Chapter 4.

The right to counsel (meaning the effective assistance of a qualified lawyer from the outset of the proceeding) is an essential component of the right to a fair trial, inter alia to guard against uninformed waivers and coerced confessions. Chapter 5 discusses the components of that right in detail, including issues of self-representation and “legal aid” for those unable to pay. In Chapter 6, the authors articulate the components of the right to be tried without undue delay, and then turn in Chapter 7 to the right to be present at the trial (“so elemental that it may be taken for granted” (p. 446)), where they address the various circumstances in which trials in absentia may be held in defendant's absence (noting that under the European system such proceedings are not “inherently incompatible” with the right to a fair trial (p. 463)).

Chapter 8 takes up the defendant's right to examine witnesses, which includes the right to call people to testify in his or her favor as well as to question those testifying against him (somewhat broader than the U.S. constitutional right of “confrontation”). In the authors’ view this right applies not just at trial but also on appeal. They acknowledge, however, some divergence in practice, since in some instances it may be permissible for witnesses to testify anonymously (p. 555). In Chapter 9, they discuss the right to an interpreter, noting that “[a] defendant who cannot understand the case against him cannot have a fair trial” (p. 557). This right, together with the related right to translation of relevant documents, is an “essential precondition to the enjoyment of other component fair trial rights,” particularly important in multicultural, multilingual societies and for those who travel widely; yet (the authors note) it is in practice one of the most under-respected rights (pp. 606–07).

Chapter 10 addresses the “right to silence,” which includes the rights not to be compelled to testify against oneself, to confess guilt, or to provide incriminating evidence. Describing it as “one of the most complex and perhaps the most controversial fair trial right in international human rights law” (p. 653), the authors acknowledge that “some level of pressure—such as urging a defendant to tell the truth or offering a plea deal—may be compatible with international human rights law as long as the individual remains free to decide whether or not to speak or provide evidence” (p. 610). The right to appeal to a higher tribunal, discussed in Chapter 11, is described as “the ultimate ‘failsafe’ against wrongful convictions” (p. 717), yet it is not absolute and is sometimes restricted, for example in the jurisprudence of the European Court of Human Rights (pp. 717–18).

Chapter 12 takes up the “right to equality” before courts and tribunals, which requires all parties to criminal proceedings to be treated without discrimination in respect of fair trial rights, so that similar cases are treated in a similar manner unless objective and reasonable grounds exist for making a distinction (p. 720). It excludes distinctions made on the basis of gender, race, disability, nationality, ethnicity, religion, judicial or prosecutorial bias, or “ulterior purpose.” Despite its importance, the authors note that in practice it has been of “relatively limited use . . . to vindicate fair trial violations” (p. 775).

The right not to be subject to repeated trial or punishment for the same offense or conduct (often referred to as non bis in idem or “double jeopardy”), analyzed in Chapter 13, is so widely recognized (at least in principle) that it has been described as a general principle of law and even part of customary international law (p. 778). However, the authors note that in practice it is often subject to qualification or limitation based on distinctions about what constitutes the “same” offense, conduct, or facts, how the right is applied to “continuing offenses,” and what constitutes a “final” verdict no longer subject to appeal. Given “considerable variation” among international bodies in the relevant law and practice, the authors call for a “more harmonized approach” with “clear exceptions to avoid potential abuse” (p. 829).

The concluding Chapter 14 addresses the right to “an effective remedy” for defendants denied a fair trial, including release, pardons, retrial, sentence reduction, and monetary compensation, among others (such as orders to investigate and prosecute those responsible for the violations in appropriate cases) (pp. 848–49). They note that “[u]ltimately, the right to a fair trial does not mean much without the ability to secure a remedy when it is violated” (p. 900).

In the authors’ view, “[t]he right to a fair trial belongs to every defendant charged with a criminal offence, every person who faces a deprivation of liberty and, in some cases, execution if convicted at trial” (p. 33). While their focus is on the components of the right in the criminal context, they acknowledge that “the boundary between the right to a fair trial in civil and criminal proceedings is not a bright line” (p. 26). They contend that fair trial rights apply broadly, even during times of armed conflict and public emergency, while acknowledging that in some situations the right to a public trial can be limited on grounds of national security (pp. 170–74).

While granting that the “legal landscape of international bodies engaged with the right to a fair trial can lead to component fair trial rights being interpreted differently according to international and regional sources” and that “[t]here is no single principle for resolving conflicts of interpretation,” the authors contend that “in reality there is more convergence than divergence to efforts to harmonize on the meaning of fair trial rights” (p. 60). Indeed they conclude that “there is evidence that the right to a fair trial is not only a customary norm, but one that has achieved the status of a jus cogens norm, meaning that it is ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted . . .’” (p. 16).

Whether one accepts that conclusion or not, it is difficult to argue against their assertion that “the right to a competent, independent and impartial tribunal established by law is the essence of the rule of law and crucial to the fairness of any trial—indeed, that it is absolute and non-derogable . . . and a necessary precondition for the legitimacy of the judicial function in any state” (p. 67).

The volume rests on an extraordinary body of research and reflects impressive analytical effort. As a result, it makes a substantial contribution to the field of international criminal law and will clearly become an essential reference for practitioners (prosecutors and defense counsel alike), professors, and students. The book has justifiably been awarded a 2022 Certificate of Merit by the American Society of International Law for its “high technical craftsmanship and utility to lawyers and scholars.”Footnote ⁹