The hypoplasia of the defence in international criminal law: a critical analysis of fair trial and equality of arms
Myers, Beatrice Faye
The term ‘hypoplasia’ refers to a biological inability to mature properly, due to disease or an inadequate supply of nutrients, which results in incomplete or arrested development. This thesis will seek to demonstrate that the concept 2 of ‘hypoplasia’ best represents the arrested development of the Defence role in International Criminal Law (ICL). The limited and delayed development of the Defence during the creation of the institutions will be argued as having resulted in profound and lasting consequences, which affect all manner of defence functions, both in theory and in practice. It will be argued that whilst the ‘modern institutions’ provide fair trial protections in their various statutes, rules and codes, such guarantees do not manifest adequately into practical safeguards at trial. Thus, it will be argued ultimately that, when considered collectively, there exists an Inequality of Arms at the modern ICL courts and tribunals, which is worthy of greater consideration and recognition.\ud \ud This Chapter will begin by considering the relevance of the international context for the ICL accused, both in relation to the severity of the crimes of which he is accused, and the global platform on which he appears. Next, Section 3 will provide an overview of the structure of this thesis. Section 4 will then set out the research methods used, together with a rationale justifying the selection of the ‘modern institutions’ (ICTY, SCSL & ICC), which form the focus of this study. Sections 5 & 6 will attempt to draw together some of the key themes of this thesis, including the anxiety surrounding the international accused which, it will be argued, has ultimately led to the ‘hypoplasia’ of the Defence.
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