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Evisceration of the Right to Appeal: Denial of Individual Responsibility as Actionable Genocide Denial

Posted by on Tuesday, January 26, 2021 in Notes, Volume 74, Volume 74, Number 1.

Jennifer E. King | 74 Vand. L. Rev. 221 (2021) |

Tensions arise during litigation in the international criminal justice system between the practice of the international criminal tribunals, domestic laws, and policy decisions of United Nation (“UN”) Member States. One such tension arises between domestic genocide denial laws, which typically criminalize denial of genocide as a strict liability offense, and the preservation of due process for persons convicted of genocide seeking appeal. In theory, denying individual responsibility during the appeal of a conviction by an international tribunal could constitute punishable genocide denial under some domestic laws. This criminalization of the appeal process would violate the due process rights of international criminal defendants, sacrifice the review mechanism ensuring fair trial rights in international criminal tribunals, and affect the legitimacy of international criminal justice. This Note argues for an interdisciplinary solution to combat genocide denial that fully respects due process. First, domestic denial laws should be amended to include an intent requirement to exclude from coverage denial of individual responsibility during litigation. Second, all international and hybrid criminal tribunals should implement safeguards to protect defense counsel and witnesses from domestic prosecution for their role in the appeals process. Third, the International Residual Mechanism for Criminal Tribunals should clarify its enduring dedication to both reducing denialist behaviors and respecting due process and should call on all states to do the same. Genocide denial is a harmful phenomenon with no place in modern discourse; however, sacrificing full due process rights in the international criminal tribunals does little to reduce the effects of genocide denial.

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Jennifer E. King