11.2.1 Miscarriages of Justice and the Right to an Effective Remedy for Violations of Human Rights

The term miscarriage of justice refers to the broadest form of injustice that can include the violation of any human right (Walker, Reference Walker, Walker and Starmer1993, Reference Walker, Walker and Starmer1999). The right to an effective remedy in Article 2(3) of the ICCPR would be the appropriate remedial instrument to implement Clive Walker’s normatively attractive rights-based definition of a miscarriage of justice. It pursues a broad legal process approach by referring to remedies provided by “administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.” Though drafted in the 1950s, Article 2(3) seems to contemplate the development of institutions such as Criminal Cases Review Commissions, which are supposed to be independent of government and have public funds and powers of investigation to “develop the possibilities of judicial remedy” by referring convictions or sentences back to the courts.

The right to an effective remedy would also apply to fair trial rights and sentences that would violate international law by, for example, imposing “cruel, inhumane or degrading treatment” contrary to Article 7. It would apply to unlawful and arbitrary detention including pre-trial, military or immigration detention (Century and Roach, Reference Century and Roach2025; Roach and Trotter, Reference Roach and Trotter2005). It would also apply to violations of equality rights in Article 26 including the type of discriminatory impunity of wrongful acquittals that Professor Clive Walker has also characterized as miscarriages of justice (Walker, Reference Walker, Walker and Starmer1993, Reference Walker, Walker and Starmer1999).

11.2.2 Miscarriages of Justice, Unlawful or Arbitrary Detention and Article 9(5) of the ICCPR

Article 9(1) of the ICCPR provides rights to “liberty and security of the person” and rights against “arbitrary arrest or detention.” Article 9(3) provides for judicial review of continued detention and release if the detention is not lawful. It also provides that “it shall not be the general rule that persons awaiting trial shall be detained in custody” and there is right “to a trial within a reasonable time or release.” Finally, Article 9(5) provides: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Article 9(5) applies only to “unlawful” as opposed to arbitrary detention. This caused a representative of the World Jewish Congress to raise concerns during the drafting stage about whether compensation required under Article 9(5) would not apply to detention imposed under unjust “Nazi laws” (Weissbrodt, Reference Weissbrodt2021: 28). The UN Human Rights Committee has explained in General Comment 35: para 51, however, a detention authorized by an unjust law that authorized arbitrary detention should still require compensation under Article 9(5). This provides a broad right to compensation that is not limited to wrongful convictions.

The unqualified nature of compensation requirements in Article 9(5) is striking when compared to the restrictive nature of Article 14(6). That said, the story of rights cannot be fully told without considering remedies (Dicey, Reference Dicey1885; Levinson, Reference Levinson1999; Roach, Reference Roach2021). The unqualified nature of Article 9(5) commitments to compensation may also help to explain why it has been characterized as the international human right “so broadly accepted in theory, but so commonly violated in practice” (Open Society, 2015: 269)

11.2.3 Article 14(6) of the ICCPR and Compensation for a Narrow Subset of Wrongful Convictions

Article 14(6) of the ICCPR uses the term miscarriage of justice, but it actually only provides a right to compensation for a rather narrow subset of wrongful convictions. An important restriction, one not used in registries of wrongful convictions, is that the conviction must have been affirmed by a final court and then subsequently overturned in order to qualify for compensation under Article 14(6). Thus, successful appeals, even those based on new evidence relevant to guilt or innocence, are not considered to be compensable miscarriages of justice under Article 14(6) even though they would be recorded as wrongful convictions in most registries of wrongful convictions.

The drafting history of Article 14(6) helps explain its restrictive nature (Trechsel, Reference Trechsel2005: 378). The first proposal made by the Philippines in May 1949 made reference to compensation for an “erroneous conviction” (Bossuyt, Reference Bossuyt1987: 311). This proposal followed civilian traditions examined in Chapter 4.4 by codifying certain basis for overturning convictions namely: that the real “culprit has voluntarily confessed, and there is no reasonable ground to doubt his confession or (b) that the fact or event which was the basis of the conviction is shown beyond reasonable doubt never to have existed or taken place, as when in a murder or homicide case, the person alleged to have been killed is living” (Mujuzi, Reference Mujuzi2019: 218). This 1949 proposal revealed common understandings of wrongful convictions at the time. Back from the dead cases where a murder victim was actually alive were one of the first recorded wrongful convictions in the United States (Borchard, Reference Borchard1932; Warden, Reference Warden2013). As discussed in Chapter 9.2, it was such cases that generated Chinese reforms between 2006 and 2013 (He, Reference He2016; Jiang, Reference Jiang2016). At the same time, the Philippines proposal also reflected a recognition that some wrongful convictions occur in cases where no crime was ever committed. This disarms arguments that every attempt to prevent wrongful convictions inevitably risks creating a wrongful acquittal or that all wrongful convictions involve the conviction of the wrong perpetrator (Cassell, Reference Cassell2018; Petro and Petro, Reference Petro and Petro2010). As discussed in Chapter 8.2, there is a long history of wrongful convictions for imagined crimes starting with medieval witch trials.

The United States’ delegation led by Eleanor Roosevelt opposed the Philippines’ proposal apparently believing that compensation would already be covered by what would become Article 9(5). The Philippines delegation resisted the American objection by arguing that “if compensation was to be provided for unlawful arrest, there was all the more reason to compensate to, say, the heirs of an unjustly executed person” (Clooney and Webb, Reference Clooney and Webb2021: 217–218; Trechsel, Reference Trechsel2005: 373). This argument made conceptual sense and recognized that a wrongful conviction is a subset of the larger category of miscarriages of justice that included wrongful imprisonment. The United States eventually convinced the Philippines to drop the proposal, but a majority of delegates voted to keep it.

A subsequent proposal by France provided:

This proposal introduced the ambiguous concept of a miscarriage of justice that is retained in the final version. It also contained important restrictions that remain in Article 14(6) by tying compensation to a “final decision” and requiring a new or newly discovered fact that “conclusively” demonstrates a miscarriage of justice (Mujuzi, Reference Mujuzi2019: 215). Despite the reference to a “final decision,” the United Kingdom raised concerns that the provision might require compensation when convictions were overturned on appeal (Weissbrodt, Reference Weissbrodt2021: 68). The United States argued that Article 14(6) would be difficult to implement given the diversity of national legislation (Reference Weissbrodt2021: 60).

Drawing on Borchard’s proposals and existing federal and some state compensation laws, Eleanor Roosevelt proposed that compensation should be denied if the wrongly convicted person was partially or fully responsible for the non-disclosure of the newly discovered exonerating facts (Reference Weissbrodt2021: 67; Borchard, Reference Borchard1914). This restriction was a means of rationing compensation based on what Calabresi and Bobbitt (Reference Calabresi and Bobbitt1978: 72) call a “worthiness decision.” It also reflected the United States’ moralistic approach to crime (Whitman, Reference Whitman2005).

Chile objected on the basis that the American proposal wrongly placed the burden on the previously convicted person to prove a negative, namely that they were not at fault for the original non-disclosure of the new exonerating fact. On a motion by France, the proposal was amended to require the state to prove that the wrongfully convicted was at fault in order to preclude compensation (Mujuzi, Reference Mujuzi2019: 220). Chile and France appeared to be more concerned about respect for the presumption of innocence than the United States.

The end result of the American and British resistance was a very restrictive right that only applied to a small subset of all wrongful convictions. The requirement that the conviction be confirmed by a final decision eliminates wrongful convictions that are corrected by the admission of new evidence on appeal. Although written well before DNA exonerations, Article 14(6) contemplates DNA-type evidence that “conclusively” demonstrates a wrongful conviction. Article 14(6) also allows states to blame people for their own wrongful convictions by proving that they are wholly or partially responsible for the non-disclosure of the exonerating and conclusive new fact. This builds in some of the populist tone of Borchard’s original and successful proposals to American legislatures to adopt compensation laws much more restrictive than European laws (Borchard, Reference Borchard1914; Roach, Reference Roach2024a). It also raises concerns that those who make false confessions (Law Commission of India, 2018) and those who falsely plead guilty could be denied compensation under Article 14(6).

11.2.4 Proven Innocence: Raised but Rejected in the Drafting of the ICCPR but Perhaps Gaining Ground

Near the end of the drafting process, Israel proposed in 1959 that “A person proved innocent of a crime of which he had previously been convicted, shall have the right to compensation for any damage or punishment which he suffered through no fault of his own” (Clooney and Webb, Reference Clooney and Webb2021: 241, emphasis added). This proposal closely followed Borchard’s proposal and was supported by both the United States and the United Kingdom. It was, however, defeated by twenty-two votes to eleven with forty abstentions. Despite strong and in my view persuasive arguments by Lord Phillips in the UK case of Adams 2011 UKSC 18 at para 20 and by Professor Jamil Ddamulira Mujuzi (Reference Mujuzi2019) that the drafters of Article 14(6) considered and rejected a requirement of proven innocence, there remains no international law consensus on whether Article 14(6) requires proven innocence.

In Dumont v. Canada, only one member of the United Nations Human Rights Committee, Fabián Omar Salvioli, clearly rejected Canada’s argument that proof of innocence was required for compensation on the basis that it “incompatible with both the letter and the spirit of article 14, paragraph 6, of the Covenant…. nowhere does it contain a requirement of the proof of innocence, and even less of ‘factual innocence.’” (Dumont v. Canada Communication No. 1467/2006 at paras 8 and 9 of concurring opinion) This is a strong dissent, but it remains a dissent that was rejected by 13 members of the Committee including renowned international judges Helen Keller and Sir Nigel Rodney. The argument by the government of Canada that proven innocence is required reflected Canadian guidelines but not the fact that in many cases in Canada, there have been departures from the guidelines to allow compensation to the wrongfully convicted who cannot prove their innocence, for example, because no DNA evidence is available (Roach, Reference Roach2023a: ch 13).

As will be examined in greater depth later, leading commentators have recently proposed the recognition of a right to claim innocence in international law (Garrett et al., Reference Garrett2021). Such an addition would probably result in compensation under Article 14(6), also requiring proof of innocence. As argued in Chapter 2.6, this would be a severe rationing of justice that when adopted in England in 2014 resulted in drastic decreases in compensation for the wrongfully convicted (Law Commission, 2025: 16.18; Quirk, Reference Quirk, Jasinski and Kremens2023). Such a move could be inspired by increasingly populist and punitive approaches to crime in many parts of the world and diminishing support for liberal principles based on restraint in the use of the criminal law including the presumption of innocence and the reasonable doubt standard. It would also accord with public opinion polling that suggests that globally people increasingly view wrongful acquittals to be an equal if not greater concern than wrongful convictions (Garrett and Mitchell, Reference Garrett and Mitchell2023; Xiong, Reference Xiong2022; Xiong, Greenleaf and Goldschmidt, Reference Xiong, Richard and Jona2017). The rare wrongfully convicted person who is lucky enough to have access to evidence that can prove his or her innocence is one of the few persons who can compete with the crime victim for public sympathy.

11.2.5 Summary

Unfortunately, international law has not settled the definitional issues that often plague muddled thinking about miscarriages of justice. Article 14(6) of the ICCPR uses the word miscarriage of justice but only provides a right to compensation for a small subset of wrongful convictions. The right to compensation under Article 14(6) is not available if the state can prove that the wrongfully convicted person was responsible for the non-disclosure of the new, conclusive and exonerating fact. This raises questions about whether this right requires updating given our increased knowledge about how false confessions and false guilty pleas contribute to wrongful convictions. That said, Israel’s 1959 proposal to require proven innocence for compensation was defeated despite the support of the United States and the United Kingdom. International jurisprudence, however, has not clearly rejected the proven innocence approach as too restrictive or at odds with the presumption of innocence including most recently in the European Court of Human Rights divided decision upholding England’s proven innocence approach to compensation as consistent with the presumption of innocence (Hallam v. The United Kingdom, 2024 ECHR 514). This suggests the need for continued debate. One of my reasons for writing this book is to advocate against the adoption of the populist but restrictive standard of proven innocence.

International law provides support for public and private institutions that wish to remedy miscarriages of justice beyond wrongful convictions. Article 2(3) provides a right to an effective remedy for all violations of rights and freedoms. Consistent with the legal process approach taken in this book, Article 2(3) contemplates not only judicial remedies but also executive and legislative remedies. International remedial principles also go beyond a focus on monetary compensation and include the need for rehabilitation and preventive efforts to ensure non-repetition of the rights violations (Roach, Reference Roach2021). Article 9(5) of the ICCPR provides a right to compensation for all unlawful or arbitrary arrests or detentions. This expands the concept of miscarriage of justice to include unlawful imprisonment. This is an attractive and unified concept embraced by a few European states, in some new constitutions from the Global South and in China’s State Compensation Law.

11.3.1 The Mixed Record of the Post-World War II Tribunals

There were no appeals available in the Nuremberg trials. At the same time, there were also no guilty pleas, which could have led to false guilty pleas if only to avoid the forty-three death sentences that the Nuremberg tribunal delivered. The first Nuremberg trial convicted nineteen senior Nazis and acquitted three. Subsequent trials of other officials including judges resulted in 25 of 177 accused being found not guilty, thus suggesting that the idea that the Nuremberg trials were simply victor’s justice was oversimplified. As Theodore Merton (Reference Merton2001) has argued, the significant number of acquittals should be seen as a victory for international justice however painful they were to victims of the Holocaust.

The Tokyo trials did not result in any acquittals. Attempts to remove some of the judges for bias for the prosecution failed. The defence did not have adequate time to prepare. Justice Pal from India issued a dissent, arguing that all the defendants should have been acquitted in part because of the United States’ actions in dropping atomic bombs on Japan. Other dissents expressed concerns about the reliance on expansive conspiracy charges. Some dissents would have acquitted specific individuals on the basis that their intent was to pursue peace (Cohen and Totani, Reference Cohen and Totani2018). The different records of the two tribunals with respect to acquittals raise difficult questions about whether there was equal and non-discriminatory justice with white Germans being acquitted but not Asian Japanese.

11.3.2 The Rwanda (ICTR) and Former Yugoslavia (ICTY) Tribunals

These two international courts established much of the basis for the ICC. Both the ICTR and ICTY adopted modern techniques to guard against false confessions such as the requirement that counsel generally be present during the questioning of the accused and that statements be recorded (Knoops, Reference Knoops2013: 53). Appeals were available and the Appeals Chamber of the ICTY warned that breaks in recording statements to have “off the record” discussions could adversely affect the admissibility of the accused’s incriminating statements (Reference Knoops2013: 55ff) The same Appeals Chamber also allowed expert evidence about human fallibility in eyewitness identifications (Prosecutor v. Kuprskic et al., Appeals Chamber, October 23, 2001, Case No. IT-95–16A, para 134–135). The courts recognized the limited value of in-dock identifications of the accused while not prohibiting them (Knoops, Reference Knoops2013: 65). In a number of cases, the ICTY acquitted accused because of concerns about frailties in purported eyewitness identifications (Reference Knoops2013: 68–69). These are all signs that the international courts were sensitive to some of the immediate causes of wrongful convictions discussed in Chapter 3.

11.3.3 The Dangers of False Guilty Pleas in the ICTY and ICTR

It is a sign of inquisitorial influence that the enabling statutes of both the ICTY and the ICTR did not provide for guilty pleas. This resistance to guilty pleas was underlined by a 1994 statement by the Italian law professor and then president of the ICTY, Antonio Cassese, that because of the seriousness of the charges before the court, “we have decided that no one should be immune from prosecution for crimes such as these, no matter how useful their testimony may otherwise be”(Combs, Reference Combs2017: 60). This approach would have been consistent with both the Nuremberg and Tokyo trials as well as the traditional reluctance of inquisitorial courts to accept such guilty pleas (Turner, Reference Turner2009: 214). It recognized that many of the purposes of the international criminal courts could be defeated by “[n]egotiated acts of self-conviction” outside of the “public glare” (Damaska, Reference Damaska2004: 1031).

Despite Judge Cassese’s comments, the ICTY and ICTR soon accepted guilty pleas as a means to assist with delays, backlog and limited resources that soon plagued them (Combs, Reference Combs2007: 4). Indeed, the first convictions recorded by both courts were achieved by means of guilty pleas.

In the ICTY, a witness, Drazen Erdemovic, unexpectedly expressed a desire to plead guilty to a crime against humanity in relation to the Srebrenica massacre of unarmed Bosnian Muslim men. This guilty plea was accepted even though Erdemovic said he had been threatened with death after initially refusing to kill prisoners (Combs, Reference Combs2007: 60; Hodgson, Reference Hodgson2020: 37). He subsequently went into witness protection and testified against superior officers. The guilty plea was overturned by the Appeals Chamber on the basis that Erdemovic had not received proper legal advice after the chamber questioned the accused’s lawyer and determined that he did not understand the distinction between crimes of humanity and war crimes. As in domestic justice, inadequate defence lawyering can lead to false guilty pleas. As discussed in Chapter 5.4, the CCRC in England was forced to refer a significant number of convictions of immigration offences because defence lawyers were allowing their clients to plead guilty and were unaware that genuine refugee status could provide a defence. Judge Cassese expressed concerns about allowing guilty pleas and stressed the importance of determining their factual basis (Schabas, Reference Schabas2006: 447; Erdemovic (IT-96–22-A), Judgment, October 7, 1997). Under new rules for taking pleas based on this judgment, Erdemovic subsequently pled guilty to the lesser offence of war crimes in 1998. He received five years’ imprisonment as opposed to his original plea-bargained sentence of ten years. This plea involved both charge and sentence bargaining, increasing the risk of false guilty pleas.

The former Prime Minister of Rwanda, Jean Kambanda, pled guilty to genocide after negotiating the safety of his family and providing the prosecutor with “invaluable” information (Combs, Reference Combs2007: 93). The plea was voluntary and informed, but there was no examination of whether it had a factual basis. The trial chamber considered the guilty plea and Kambanda’s co-operation as mitigating factors. Nevertheless, it sentenced him to life imprisonment because of the gravity of the crimes and his lack of remorse. Kambanda challenged the plea stating that he believed he would receive a sentence of three years imprisonment if he pled guilty (Reference Combs2007: 92). This challenge was rejected by the Appeals Chamber which held that the sentence reflected Kambanda’s lack of remorse and that there was a factual basis for the plea because the parties agreed to the facts (Kambanda (ICTR 97–23-A), Judgment, October 19, 2000 at paras 62, 93). A second guilty plea at the ICTR also saw charge bargaining as rape charges were dropped at the insistence of an accused who pled guilty to genocide, murder, extermination and torture and received a fifteen-year sentence. As Hodgson (Reference Hodgson2020: 40) has argued, efficiency-driven guilty pleas “militate against the public provision of justice.” They are especially questionable in international criminal justice with its ambitions to provide a historical record and justice for the victims

The dangers of plea bargaining were also illustrated in the Biljana Plavšić case where the former Bosnian Serb President received an eleven-year sentence after pleading guilty to crimes against humanity with other charges relating to genocide being dropped. After her early release from prison, Plavšić, a defender of ethnic “cleansing,” renounced her guilty plea stating that she only made it to reduce her time in prison (Turner, Reference Turner2009: 220). In a dissenting opinion, Judge Schomburg compared charge bargains to “de facto granting partial amnesty/impunity by the Prosecutor” and criticized them as conflicting with the Tribunals’ mission to avoid impunity, to establish the truth, and to promote peace and reconciliation (Prosecutor v. Deronjić, Case No. IT-02–61-S, Sentencing Judgement, Dissenting Opinion of Judge Schomburg, ¶ 11 (ICTY Mar. 30, 2004).

The evidence from the ICTY and ICTR is disappointing in revealing that initial inquisitorial-inspired scepticism about guilty pleas soon gave way to a willingness to accept charge and sentence bargaining, resulting in guilty pleas. Unlike in most inquisitorial countries that were examined in Chapter 4.5, guilty pleas were accepted for the most serious crimes.

11.3.4 Guilty Pleas and the ICC

Article 65 of the Rome Statute creating the ICC contains more safeguards against false guilty pleas than were present in the ICTR or the ICTY. In addition to the requirement that a guilty plea be voluntary and knowing, there is a requirement for a factual basis with Article 65(4) empowering the court to request the prosecutor to present additional evidence to establish the factual basis for all the elements of the offence. The Court’s power to do this is based on when additional evidence “is required in the interests of justice, in particular the interests of the victims.” Turner and Weigend (Reference Turner, Weigend and Slutter2013: 1390–1391) have concluded that charge bargaining is less likely in the ICC than the ICTR and ICTY because the trial chamber of the ICC must approve any changes in charges in the latter stages of proceedings. Mirjan Damaska (Reference Damaska2004: 1038) has argued that the guilty plea practices of the international courts are influenced by the inquisitorial tradition of treating admissions of guilt as confessions. What the ICC calls a guilty plea might in inquisitorial systems be a non-conclusive admission of guilt.

In 2020, the ICC’s Office of the Prosecutor issued guidelines for guilty pleas. It noted that only one person had at that time plead guilty before the ICC compared to 29 before the ICTR and the ICTY. It stressed the need for written plea agreements to promote transparency (ICC-OTP, 2020: para 8). Charges should be withdrawn with caution, and the prosecutor must not withhold from the court any fact material to the accused’s criminal responsibility or sentence (2020: para 23). Plea agreements should only be entered if the accused admits guilt, thus excluding the type of controversial Alford plea accepted in the United States.

The ICC’s first guilty plea was accompanied by an extensive judgment. The prosecutor called three witnesses to testify about the destruction of historical and religious monuments as a form of a war crime. The Trial Chamber noted that the factual basis requirement was introduced to ease some of the accuracy-based concerns about plea bargaining and that it contemplated a procedure “analogous to a summary or abbreviated procedure traditionally associated with civil law systems” (Prosecutor v. Al Mahdi ICC-01/12-01/15 27 September 2016 at para 27). At the same time, the Chamber recognized many benefits of plea bargaining including saving victims from having to testify, encouraging co-operation from the accused in other cases, and “[p]erhaps most importantly, the speed at which cases can be resolved following admissions of guilt saves the Court both time and resources, which can be otherwise spent advancing the course of international justice on other fronts” (Prosecutor v. Al Mahdi at para 28). The accused’s nine-year sentence was reduced to two years on appeal, thus presenting some danger of substantial sentence discounts for pleading guilty that may be too good to refuse.

11.3.5 Truncated Disclosure

The failure to disclose all relevant information possessed by the state to the accused is a leading cause of wrongful convictions in domestic jurisdictions. Clive Walker and Geoffrey Robertson, Reference Walker, Robertson, Walker and Starmer1999: 173 have discussed how the lack of disclosure contributed to wrongful convictions in terrorism cases in England during the 1970s. The ICC depends on domestic states for co-operation, and many are concerned about disclosing any information that may harm their national security. Article 54(3)(e) of the Rome Statute contemplates the prosecutor agreeing not to disclose information that it has obtained from others. The ICC has expressed concerns that by accepting a large amount of material on this basis, the prosecutor “effectively prevented the Chambers from assessing whether a fair trial could be held in spite of the non-disclosure to the Defence of certain documents, a role that the Chamber has to fulfil pursuant to the last sentence of article 67(2) of the Statute” (Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para 45). The prosecutors have responded to this decision so that they are more cautious about using material subject to non-disclosure agreements.

Article 67(2) provides that the prosecutor must disclose evidence in its control that “he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.” Although this makes reference to the accused’s innocence, this disclosure obligation follows a broader miscarriage of justice approach by also requiring disclosure of material that only mitigates the accused’s guilt or affects the credibility of the prosecution evidence.

States can apply under Article 72 of the Rome Statute to obtain orders for non-disclosure of information that may prejudice their national security. This confusing provision contemplates negotiation and court orders of alternatives to full disclosure but without any specific protection for the right of accused persons fully to defend themselves. It also seems to contemplate that only information necessary “to establish the guilt or innocence of the accused” must be disclosed (Rome State Article 72(7)). This presents a danger that proven innocence will be used as a means to ration and minimize disclosure obligations to the accused.

The ICC has upheld the use of anonymous witnesses and summaries as not “necessarily prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial” despite recognizing that they place the defence at a disadvantage (Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para 50). Again, this highlights the dangers of miscarriages of justice in international criminal justice even in cases where there are legitimate concerns about the safety of witnesses and the dangers of full disclosure of relevant material to the accused.

11.3.6 Fact-Finding

There has been criticism of how international criminal courts make factual findings (Combs, Reference Combs2007). Judge Van den Wyngaert dissented from a decision of her two colleagues to convict by arguing that their decision was “very short on hard and precise facts and very long on vague and ambiguous ‘findings,’ innuendo and suggestions” Prosecutor v. Katanga (Judgment pursuant to article 74 of the Statute), ICC-01/04–01/07 (8 March 2014) (ICC, Trial Chamber II). The same judge was in the majority in a controversial decision to overturn a conviction on appeal in part because of its reliance on circumstantial evidence. She stressed that “drawing inferences from circumstantial evidence only adds uncertainty. Therefore, if the factual basis of the circumstantial evidence is weak, the inferences drawn from it will be even weaker’” (Bemba ICC-01/05–01/08). There is a danger as examined in Chapters 7 and 8 that fact-finding can be distorted by narrative, subtext, stereotype and even prejudice.

Nancy Combs (Reference Combs2017) has conducted an empirical study of the fact-finding challenges facing international courts. Witnesses may be subject to numerous interviews and may testify in many trials, often long after events they witnessed. Their statements may not always be produced in the language they best understand. This understandably can produce inconsistencies and inaccurate evidence. Combs also found that both defence lawyers and the ICTR became more adept over time at challenging and discarding testimony that revealed inconsistencies and lies. This points towards the importance of equality of arms and full disclosure of witness statements in reducing the risk of miscarriages of justice.

11.3.7 Appeals and Revision

Appeals in the ICTR and ICTY were allowed both on the basis of error of law or errors of fact resulting in a miscarriage of justice. They also allowed for the admission of new evidence on appeal (Drumbl and Gallant, Reference Drumbl and Gallant2001; Fleming, Reference Fleming2002). These were all improvements from the Nuremberg and Tokyo tribunals.

The ultimate standard for overturning convictions was quite high. One appeals chambers required “that no reasonable tribunal could have reached a conclusion of guilt based” upon the evidence at trial combined with the new evidence heard on appeal (Rutaganda (ICTR-96–3-A), Judgment, 26 May 2003, para 47). Even though the trial chamber did not use juries, Appeal Chambers deferred to the ability of trial judges to observe witnesses and determine their credibility. They also developed a list of ten factors that were not sufficient to ground an appeal. The ten factors were arguments:

Some of these relevance-based objections are unobjectionable, but others could adversely affect the accused’s right to appeal, especially as it involves the weight that the trial chamber placed on the evidence or repetition of defence arguments that were perhaps wrongly rejected by the trial chamber. It accords a deference to the trial chamber that is often accorded to the jury (Nobles and Schiff, Reference Nobles and Schiff2000). At the same time, trial judges, unlike juries, have to explain the verdict, and the appellate disadvantage in reviewing such reasons can be exaggerated. In any event, the ICTY’s laundry list for dismissing appeals reflects how the right to appeal has too frequently been neglected in international as well as domestic law.

Article 81 of the Rome Statute provides both the accused and prosecutors with broad rights of appeal on factual, legal and procedural grounds with the accused having an additional ground relating to any other ground that affects the fairness or reliability of the proceedings or conviction. The ICC Appeal Chamber also has the powers to broaden appeals and call evidence itself under Articles 81 and 83. This may be another potential inquisitorial advantage in avoiding miscarriages of justice.

Fresh evidence will be considered on appeal if “(i) the Appeals Chamber is convinced of the reasons why such evidence was not presented at trial, including whether it could have been presented with the exercise of due diligence; and (ii) it is demonstrated that the additional evidence, if it had been presented before the Trial Chamber, could have led the Trial Chamber to enter a different verdict, in whole or in part.” Article 81 also has a safety valve that allows some flexibility in avoiding injustices by providing that new evidence can be admitted on appeal “despite a negative finding on one or more of these criteria, if there are compelling reasons for doing so.” The admission of new evidence on appeal remains a critical last-minute check on lack of disclosure, inadequate defences and factual errors made at trial.

Article 84 provides a separate revision procedure as is common in civilian systems. It is available only to the accused, but can be brought after the accused’s death by their family. This recognizes the importance of correcting the historical record when it comes to miscarriages of justice. New evidence can be considered on revision provided that it was “not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict.” This is a fairly strict standard for revision that requires that an acquittal would have been probable in light of the new evidence.

Article 84 also contemplates not hearing new evidence if it was even partially the accused’s fault that the evidence was not presented at trial. As discussed earlier, Article 14(6) of the ICCPR similarly contemplates that the wrongfully convicted can be denied compensation if they are partially or wholly responsible for the non-disclosure of an exonerating fact. It is disappointing that Article 84 drafted decades after Article 14(6) seems not to recognize the prevalence of false guilty pleas, which may be held as a basis for which the accused is responsible for the non-disclosure of new and exonerating evidence. Hopefully, courts will interpret this provision in light of these realities and their primary commitment to justice in the merits.

Article 84(b) and (c) follows many civilian codes by codifying some examples of circumstances that justify re-opening a conviction or sentence. There are reasons to question the wisdom of the civilian tradition of attempting to codify specific grounds for revision. For example, the idea that evidence is “false, forged or falsified” captures the type of fake letters used to convict Alfred Dreyfus at the end of the nineteenth century, as discussed in Chapter 7.2. They may not apply as readily to flaws in complex machines that resulted in the wrongful convictions of British postmasters at the start of the twenty-first century. As with most rules, those related to judicial misconduct present a risk of being either overinclusive in cases where the judicial misconduct has no reasonable relation to the merits of the verdict or underinclusive in the sense of judicial behaviour that may not have been serious enough to justify removal from the bench but may still have affected the reliability of the verdict.

Any reservations about Article 84 and its revision procedures may be academic, however, as the ICC seems to have signalled that appeals under Article 81 are preferable. In 2009, the Appeals Chamber stated “it will not review the findings of first instance Chambers de novo” and instead “will intervene […] only where clear errors of law, fact or procedure are shown to exist and vitiate the impugned decision” (Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para 62). It further emphasised that appellate proceedings “are not concerned with correcting all errors that may have occurred at trial, but rather only those errors that have been shown to have materially affected the relevant decision” (Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para 56.) In that case, it ruled that it would apply a similar standard for admitting new evidence on appeal as on revision on the basis that:

Inquisitorial fact centred revisions proceedings have thus influenced the ability of appeals in the common law tradition to consider new evidence and facts.

A subsequent decision of the Appeals Chamber warned “that the idea of a margin of deference to the factual findings of the trial chamber must be approached with extreme caution” (Prosecutor v. Bemba Appeal Judgment of 8 June 2018, ICC-01-05/01-08/A §38.). It also helpfully related its willingness to overturn findings of the Trial Chamber “that can reasonably be called into doubt” to the standard of proof beyond a reasonable doubt (Prosecutor v. Bemba: paras 45–46). This is a principled approach that avoids the frequent slogan of common law appellate courts that they must not substitute their own factual findings for those at trial. There are some grounds for cautious optimism that the ICC will continue to be influenced by inquisitorial traditions, which allow for more fact-based appeals than commonly found in common law adversarial systems that are burdened by the felt need to defer to the jury.

11.3.8 Summary

As in domestic systems, there are no guarantees that wrongful convictions will not occur in international criminal courts or, if they do occur, that they will always be corrected on appeal or revision. That said, the Rome Statute has many more safeguards against wrongful convictions than applied in previous international criminal courts. The ICC has benefited not only from the experience of these prior international tribunals but also by an inquisitorial reluctance simply to accept guilty pleas and inquisitorial commitments to fact-based appellate review or revision. That said, the ICTY’s experience should be a reminder that international courts are not immune from false or inaccurate guilty pleas as a concession, one frequently made by domestic tribunals, to efficiency over truth. The ICTY’s experience also serves as a warning against discounting the right to appeal.

11.4.1 The Right to Appeal under Art 14(5) of the ICCPR

Article 14(5) of the ICCPR provides that “everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” This right was first proposed by Israel in 1959 and defended as a means “to deal with miscarriages of justice before it was too late” (International Bar Association, 2022). The UN Human Rights Committee has stressed that the right to appeal “imposes on the State party a duty to review substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case.” This seems to privilege appeals on legal grounds though the General Comment goes on to say that “a review that is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts is not sufficient under the Covenant” (UN Human Rights General Comment 32). This begs the question of how deep a consideration of the facts is required. The General Comment only seems to counsel against not giving “any consideration whatsoever of the facts.” Perhaps reflecting civilian traditions, the Inter-American Court of Human Rights has stressed the need to review factual as well as legal errors on appeal. It has stated that appeal courts should “analyze questions of fact” as well as questions of evidence and law because “there is interdependence between the factual determinations and the application of law” (Mohamed v. Argentina (series C, no 255), 23 November 2012 at para 101) This seems to contemplate a more searching appellate process than one focused on factual sufficiency.

This right to appeal under Article 14(5) has not been interpreted to require an appeal through a new trial as provided in some civilian jurisdictions. The harmonization of adversarial and inquisitorial traditions here has led to agreement on the least advantageous procedure for the accused. The right to appeal has also not been interpreted to allow the introduction of new evidence on appeal. The right has been limited to appeals from “an existing conviction … based on evidence which existed at the time it was handed down” (Ratiani v. Georgia, Communication No. 975/2001, 21 July 2005, at 11.3.). This restriction is unfortunate because, as Clooney and Webb (Reference Clooney and Webb2021: 665) suggest, the right to appeal should be “a safeguard against wrongful conviction.” This minimal approach also mirrors the American experience where new evidence cannot be introduced on direct appeals in most states. This has dramatically reduced the ability of the American appellate courts to reverse convictions that were later overturned on the basis of DNA exonerations. The weakness of the American appellate process also helps to explain the American emphasis on post-conviction relief (Findley, Reference Findley2009b; Garrett, Reference Garrett2011a).

Brandon Garrett and his colleagues have rightly criticized another regrettable decision by the UN Human Rights Committee that concluded that the right to appeal “does not extend to a review of a conviction and sentence based on newly discovered facts once this sentence has become final” (Litvin v. Ukraine, CCPR/C/102/D/1535/2006, Communication No. 1535/2006, at para 9.4.; Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021: 338). The Human Rights Committee should reconsider these restrictions in light of new evidence from registries of wrongful convictions, which suggest that wrongful convictions are often corrected on the basis of new facts introduced after convictions. The international right to appeal should at least require an appellate court to consider relevant evidence that was not introduced at trial.

11.4.2 Australian Rights to Second and Subsequent Appeals

The most innovative recent application of the international right to appeal has been its use to introduce a right to a second and subsequent appeals in many Australian states on the basis of “fresh and compelling” evidence that would reveal “a substantial miscarriage of justice.” As discussed in Chapter 5.6.5, South Australia was the first Australian state to create such a right in 2013. It did so as a less expensive alternative to creating a Criminal Cases Review Commission and as a recognition of the lack of public confidence in convicted persons having to convince members of the elected executive, without any public hearing, to order a second or subsequent appeal. A key role was played by submissions from the Australian Human Rights Commission, which suggested that the failure to provide for second or subsequent appeals might be inconsistent with the right to appeal in Article 14(5) of the ICCPR that Australia had signed in 1980 (Sangha and Moles, Reference Sangha and Moles2015: 174). This is an innovative but welcome interpretation of the right to appeal, which recognizes that the finality of convictions should give way to significant new evidence. It should cause the United Nations Human Rights Committee to reconsider its view that the right to appeal does not include a right to introduce new evidence (Ratiani v. Georgia, Communication No. 975/2001, 21 July 2005, at 11.3.). The focus of the right to appeal should be on correcting miscarriages of justice, including those revealed by new evidence.

Although the South Australian right to a second and subsequent appeal was influenced by concerns about respecting Article 14(5), its formulation was unfortunately more heavily influenced by both English and Australian legislation that restricted the accused’s double jeopardy rights by allowing acquittals to be re-opened for serious crimes on the basis of new and compelling evidence. England introduced this provision in the Criminal Justice Act, 2003 in response to concerns expressed by families of murder victims. The Law Commission (2025: 13: 39, 13: 65) has documented the use of this provision to re-open acquittals in a number of emotive murder cases and recommended that this provision be retained and expanded to cover other serious and emotive crimes such as rapes and sexual assault of children. Most Australian states followed the English incursions on double jeopardy with similar legislation.

The implicit equivalence of the risks of wrongful acquittals and wrongful convictions raised by the new Australian rights to second and subsequent appeals raises a central concern of this book: the dangers of focusing on factual innocence and factual guilt in a manner that displaces more traditional and asymmetrical concerns as represented by the presumption of innocence and the reasonable doubt standard. As Bibi Sangha and Bob Moles, Reference Sangha and Moles2015: 202) have argued that “whilst the motivation to balance the books between prosecutors and appellants was well intentioned,” the copying of the double jeopardy was wrong in principle. They correctly warn that the high standard for re-opening convictions will exclude meritorious applications by the wrongfully convicted.

As discussed in Chapter 5.6.5, another concern is that the most recent second and subsequent appeal legislation introduced in Western Australia and Queensland explicitly privileges proven innocence. To be sure, convictions can still be overturned on the basis of a “substantial” miscarriage of justice. Nevertheless, as suggested in Chapter 2, there is a danger that such vague concepts can be blurred with proven factual or obvious innocence as a means to ration justice and appeal to populist or “lay” understandings (Naughton, Reference Naughton2013; Nobles and Schiff, Reference Nobles and Schiff2000). The privileging of factual innocence in new legislation underlines how quickly instruments used to ration post-conviction relief can change and the popularity of a “lay” (Naughton, Reference Naughton2013) perspective that is concerned with factual innocence and factual guilt

An approach that is more consistent with liberal criminal principles is ss.83-85 of the New South Wales’s Crimes (Appeal and Review) Act 2001, which directs the executive and the Supreme Court to order a new appeal if “it appears that there is a doubt or question as to the guilt of the convicted person…” Similar legislation in the Australian Capital Region also allows inquiries to be triggered on the basis of a doubt about guilt or a significant risk that the conviction is unsafe. As discussed in Chapter 8.4, Australia’s two most famous wrongful convictions were corrected when first the executive and then the court found that there was a reasonable doubt that Lindy Chamberlain and Kathleen Folbigg murdered their children. The focus on reasonable doubt in New South Wales and the Australian Capital Region is much more consistent with basic criminal law principles than the second and subsequent appeals in other Australian states, which are based on incursions on protections of double jeopardy when there is “fresh and compelling” evidence of factual guilt.

11.4.3 South Africa’s Restrictive Approach to Appeals

Although s.35(3) (o) of the South African Constitution provides for a right of appeal or review by a higher court. Appeal rights are limited under South African law and may not comply with Article 14(5) of the ICCPR. South Africa has signed the ICCPR but not incorporated it directly into domestic law. Individual complaints can, however, be made to the United Nations Human Rights Committee under the Optional Protocol.

Leave by the trial court is often required for an appeal under South African law. This raises concerns about conflicts of interest if trial judges are reluctant to authorize appeals that review their own work. At the same time, the Human Rights Committee has ruled that a leave to appeal requirement does not in itself violate Article 14(5) of the ICCPR provided that there is full consideration of the case (Lumley v. Jamaica Communication No 622/95 (1999).

Section 327 of South Africa’s Criminal Procedure Act of 1977 provides a restrictive right to petition the elected executive in cases where appeals have been exhausted or are not available. This also applies in cases where there has been no appeal because leave to appeal has been denied. The State President is required to consider affidavits submitted by the accused person and refer the conviction back to the court if he or she concludes that the new evidence “if true, might reasonably affect the conviction.” The convicting court then assesses the new evidence and advises the President who retains the power to expunge the judgment and give the convicted person a free pardon or to substitute a conviction for a lesser offence or lesser punishment.

A troubling feature of this South African legislation is that the advice given by the court to the President is precluded by statute from being made public. Moreover, section s.327(7) purports to preclude judicial review of any decision by either the President or the convicting court. This arguably places unconstitutional constraints on the ability of South African courts to publicize the advice they give the President in matters of executive clemency. It also attempts to restrict rights to judicial review of all administrative action under section 33 of the South African Constitution (Mujuzi, Reference Mujuzi2023: 62).

In any event, section 327 appears to be a dead letter because the President has not for some time used its provisions (Shumba, Reference Shumba2017). Earlier uses of executive clemency by President Mandela were challenged on the basis of gender discrimination for releasing women with young children. It was upheld by the Constitutional Court in part because men who cared for young children could also apply to the executive for release (President of South Africa v. Hugo 1997 (4) SA 1) [47] (Cook and Cusack, Reference Cook and Cusack2010: 44–45). Today, it appears as if executive clemency has become a dead letter. In Chapter 9.5.2, criticisms of China for not having a system of executive clemency were discussed.

The Constitutional Court has described the s.327 petition process as not constituting an appeal, which is appropriate given its blend of executive powers and judicial advice and restrictions on the court making its advice to the executive public. In doing so, it stressed an alternative method of challenging a murder conviction in a gang-related case after one of the state’s witnesses had recanted his identification of the accused. The Constitutional Court suggested that the accused could use general legislation to request the appeal court to reconsider its denial of leave. It stated that “finality should therefore always be balanced against correcting errors or providing for meritorious changed circumstances in order to ensure a just outcome.” It quoted Justice Michael Kirby of the Australian High Court that the legal system “can love finality too much” (S v. Liesching[2016] ZACC 41; 2017 (2) SACR 193 (CC) at para 43).

Only six days after the Constitutional Court’s decision, the Supreme Court of Appeal dismissed the three men’s application on the basis that there were no “exceptional circumstances” to justify revisiting the decision not to hear their appeal from their murder conviction. This decision was subsequently upheld by the Constitutional Court. It stressed the dangers of allowing the accused “additional bites at the proverbial appeal cherry” as well as the danger of giving weight to witness recantations. It also speculated that the witness may have recanted at a second trial where his testimony resulted in the acquittal of a fourth accused because of threats he received in prison (Liesching and Others v. S (CCT304/16) [2018] ZACC 25; 2018 (11):BCLR 1349 (CC) at para 139). This decision unfortunately demonstrated no concern about South Africa’s inadequate system of appeals. Even in the Constitutional Court, concerns about South Africa’s high rate of crime and the finality of convictions influenced the rationing of justice and appeals. Constitutional Court Justice Kathree-Setiloane issued a strong and lone dissent concluding that there was a reasonable possibility given the new evidence of the witness’s recantation that the three men’s murder conviction would be overturned. She also found that the Supreme Court of Appeal had not given full reasons for its quick dismissal of the three men’s application that it reconsider the refusal of leave to appeal.

The right to appeal was intended to be an important safeguard against miscarriages of justice. It is unfortunate that it has not been given a more robust interpretation or implementation both domestically and internationally. This state of affairs has led some to argue that a new international right to claim innocence post-conviction is necessary.

11.4.4 Proposals for an International Right to Claim Innocence

Professor Brandon Garrett and his colleagues have proposed the following new international right to claim innocence:

The above proposal’s reference to “a final decision” follows Article 14(6) of the ICCPR and limits the new right to the post-conviction context after any ordinary appeal has been exhausted. The United States has complex systems of post-conviction relief in both state and Federal courts as well as an inadequate system of appellate relief (Findley, Reference Findley2009b). Garrett, Helfer and Huckerby understandably want their new right to claim innocence to apply to guilty pleas given the recent discovery of false guilty pleas (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021: 355). Nevertheless, the requirement for a “final decision” would be a potential barrier to challenging such guilty pleas. Accused who have pled guilty may have difficulty obtaining legal assistance for an appeal or leave to appeal when required. This suggests the need for attention to the existing right of appeal in Article 14(5) of the ICCPR.

The proposal’s reference to “newly discovered evidence of innocence” is supposed to be broader than Article 14(6)’s focus on whether “new or newly discovered fact shows conclusively that there has been a miscarriage of justice” (Reference Garrett, Helfer and Huckerby2021: 355). This may be so, but I would hope that even new science that is the frequent basis for overturning wrongful convictions would be interpreted under Article 14(6) as a new or newly discovered fact. If not, then the limited right to compensation under Article 14(6) would not be available. At the same time, both Article 14(6) and the proposed right to claim innocence would not likely apply if the evidence had been available at trial. This limits the destabilizing effects of the rights on the finality of convictions. At the same time, it could also make the wrongfully convicted pay for the trial mistakes of their lawyers.

11.4.5 Innocence or Miscarriage of Justice?

Professors Garrett, Helfer and Huckerby made a deliberate choice to refer to innocence in their proposal, whereas Article 14(6) uses the phrase miscarriage of justice. They are concerned that the meaning of a miscarriage of justice is “unsettled” (Reference Garrett, Helfer and Huckerby2021: 356). This is true, but the unsettled meaning of a miscarriage of justice provides, as it does when used by appeal courts, room for growth. As discussed in Chapter 2.2, appeal courts applying miscarriage of justice as a ground of appeal have been careful not to attempt to give the vague term any comprehensive definition. This has allowed the term to be applied not only to cases where the accused is factually innocent but in cases where the conviction is not safe or the trial was not fair. In the future, it is possible that convictions based on discriminatory or scientifically unsound judgments could be seen as a miscarriage of justice.

The use of the term innocence as opposed to miscarriage of justice narrows the range of injustice that can be addressed. As discussed in Chapter 2.4, innocence is a more restrictive rationing of justice than miscarriage of justice. As discussed in Chapter 6.5, some liberal judges in the United States such as Justice Brennan resisted proven innocence requirements in the late 1980s and early 1990s as too restrictive a standard for rationing post-conviction relief.

Garrett, Helfer and Huckerby use two examples of factual innocence, namely, wrong person convictions and evidence that no crime was committed. They also argue that the use of the word “including” in their proposal would also allow fair trial claims usually associated with miscarriages of justice (Reference Garrett, Helfer and Huckerby2021: 356). This may be so, but at the end of the day the focus would still be on innocence (Reference Garrett, Helfer and Huckerby2021: 363). It will be suggested later that such a focus would have regressive effects in many jurisdictions with the exception of the United States and China.

11.4.6 Does Comparative Practice Support a Right to Claim Innocence or Something Broader?

Like Professor Borchard more than a century ago, Professor Garrett has engaged in a process of “translating” (Langer, Reference Langer2007) comparative law in a manner that fits the American context (shaped first by Borchard and then by the Innocence Projects) with its increasing focus on innocence as opposed to broader categories of injustice. As Borchard (Reference Borchard1914: 108) acknowledged, innocence catches “only the most flagrant injustice.” In his 2017 article laying the foundation for his 2021 proposal for a new international right to claim innocence, Professor Garrett conducted an extensive survey of comparative law that he concluded supported an emerging consensus supporting post-conviction claims of factual innocence. In my view, this comparative survey ignored that while most countries recognize innocence as a subset of a miscarriage of justice, they would not require proof of innocence in the way that American courts frequently do.

Professor Garrett described an application to the CCRC in England as involving “a claim to innocence” (Garrett, Reference Garrett2017a: 1189), whereas Innocence Projects in the UK claimed that the CCRC was not receptive to such claims because they applied a broader test based on the safety of convictions (Naughton, Reference Naughton2010, Reference Naughton2013). As of the end of 2024, the British registry recorded 494 miscarriages of justice that have been remedied since 1970. Only 31 or 6 per cent of these cases involved what the registry characterized as “affirmative evidence of innocence.”

France is included as part of a growing convergence towards a right to claim innocence. But as discussed in Chapter 4.4.3, Article 622 of France’s Code of Criminal Procedure as modified by Law 2014–640 contemplates post-conviction relief on the basis of new evidence that establishes the accused’s innocence or raises “un doute sur sa culpabilité”. This new law enacted in response to French wrongful convictions lowered a previous reference to raising a “serious” doubt to a doubt while not going as far as a proposal to lower the standard to the slightest doubt (Verhesschen and Finjuat, Reference Verhesschen and Finjuat2020: 24, 30).

Australia’s two most famous wrongful convictions discussed in Chapter 8.4 were based not on innocence but reasonable doubts about the guilt of Lindy Chamberlain and Kathleen Folbigg. Canadian legislation that created a Miscarriage of Justice Review Commission in 2024 explicitly states that the Commission can order a new trial or new appeal “even if the evidence does not establish the innocence of the applicant” (S.C. 2024 c. 33 s.696.1 (6)). Both Canadian and English courts have expressed concerns that a verdict of innocence would create two categories and a hierarchy of acquittals: one for the proven innocent and another for those presumed innocent but perhaps suspected by many to be guilty (R. v. Mullins Johnson 2007ONCA 720 at paras 22–25) (Adams, R (on the application of) v Secretary of State for Justice [2011] UKSC 18 at para 45). Finally, the Law Commission of India (2018) rejected innocence requirements both because they are tension with the presumption of innocence and because with limited access to DNA evidence very few accused in India would be able to prove their innocence.

Garrett (Reference Garrett2017a: 1197) finds more support for innocence claiming in China. Nevertheless, he correctly notes that Chinese wrongful convictions have been corrected through “less formal means” by appealing to the media and to Politics and Law Committees of the Communist Party. At the same time, Jiahong He has raised concerns that a focus on proven innocence may undermine the nascent development of the presumption of innocence in China (He, Reference He2016: 189, Reference He2018: 266). A tragic choice analysis (Calabresi and Bobbitt, Reference Calabresi and Bobbitt1978; Nobles and Schiff, Reference Nobles and Schiff2020) might explain that a narrow focus on proven or obvious innocence in the United States and China is the best that can be done in those highly punitive societies, which have the world’s largest prison populations of 1.8 and 1.7 million, respectively.

In my view, something is lost in translating all this varied comparative experience to a growing consensus on the right to claim innocence. Such an approach stresses universal features of comparative law at the expense of the particular. It also takes the lowest common denominator as the norm. As argued in Chapter 2, the conviction of the innocent is a miscarriage of justice. Nevertheless, that does not mean that innocence is or should be the exclusive measure of a miscarriage of justice or even a wrongful conviction.

In short, the adoption of the right to claim innocence would have regressive effects in many countries. Adoption of a right to claim innocence might also help push Article 14(6) towards a requirement of proven innocence, despite Professor Mujizi’s (Reference Mujuzi2019) strong arguments that such a restrictive interpretation should be rejected because it was voted down in 1959 during the drafting of Article 14(6). Professors Garrett, Helfer and Huckerby view the drafting history of Article 14(6) as less conclusive (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021: 344 n.200). In any event, the funds spent on compensation in England have declined drastically since innocence was made a requirement for compensation in 2014 with concerns today that the Birmingham Six would not receive compensation (Law Commission, 2025: 16: 18, 16: 38; Quirk, Reference Quirk2020, Reference Quirk, Jasinski and Kremens2023).

11.4.7 Standards to Prove Innocence

There is an important difference between having a right to claim innocence and being able to prove it. As Garrett (Reference Garrett2008: 129) has acknowledged, developing a factual record to prove innocence requires “investment in accuracy enhancing procedures such as videotaping, providing resources for investigation, auditing of forensic evidence, and eyewitness identification reform.” This may not be feasible in many countries, especially in the Global South.

Garrett has recognized that the American standard for free-standing innocence claims is impossibly high and has not yet benefited anyone who had claimed innocence under it (Garrett, Reference Garrett2011a). As discussed in Chapter 7.3.5, Troy Davis was unable to prove his innocence on clear and convincing evidence after being granted an original writ of habeas corpus by the United States Supreme Court in 2009 despite many concerns about the safety of his murder conviction (Re Davis 130 S.Ct. (2009); Roach, Reference Roach2013b). Giving those who have been convicted a right to claim innocence but no realistic means to prove it could itself be a form of wrongful conviction washing by holding out an illusory remedy. In the American post-conviction context, Garrett advocates a “more likely than not” standard of innocence (Garrett, Reference Garrett2008: 1637). This is slightly less onerous than the clear and convincing evidence standard that failed to save Troy Davis (In Re Davis 2010 US Dist. Lexis 87340). Nevertheless, it stops short of overturning convictions because they are unsafe or a miscarriage of justice.

With respect to his proposed supra-national right to claim innocence, Professors Garrett, Helfer and Huckerby are surprisingly agnostic about the standard of proof for innocence. They avoid prescribing a single standard of review, given the diversity of domestic approaches (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021: 358). They acknowledge the possibility that this may lead, as it has in the United States, to standards of proof that are impossible to satisfy. Nevertheless, they argue that an international network of Innocence Projects will create “pressure for additional reforms” (Reference Garrett, Helfer and Huckerby2021: 358). They point to the international development of Innocence Projects in places such as Australia, Canada, and Taiwan as support for their international right to claim innocence. These Innocence Projects do good work, but transplantation of civil society institutions from one country to the other is as fraught as is transplantation of laws.

11.4.8 The Transplantation of International Innocence Projects

The Innocence Network of the United Kingdom (INUK) was an association of thirty-five university-based innocence projects. It was built on the American factual innocence model and led by Professor Michael Naughton, a sociologist who championed the importance of a lay approach that focused on factual guilt and innocence (Naughton, Reference Naughton2013). INUK explained that it dissolved in 2014 in part because after ten years “of assessing applications from alleged innocent victims of wrongful convictions the eligible cases are drying up” (INUK, 2014). Another factor in its demise was tension between its focus on factual innocence and the concerns of both the CCRC and the English courts about the safety of convictions (Naughton, Reference Naughton2010). Canada’s leading Innocence Project started as an Association in Defence of the Wrongfully Convicted and only switched to the name Innocence Canada in an attempt to raise more charitable funds to bolster its struggling finances. Canadian and Australian innocence projects only have to establish miscarriages of justice. The recent exoneration of Kathleen Folbigg was achieved not by proving her innocence but by raising a reasonable doubt as to her guilt. This was sufficient for the executive to release and for the courts subsequently to acquit her.

There appear to be no active Innocence Projects in India with civil society work focusing on the death penalty and pre-trial detention. In China, Innocence Projects, like human rights lawyers, would be liable to prosecution under laws that curb defence work. It cannot be assumed that Innocence Projects in other parts of the world will be as effective as they have been in the United States.

11.4.9 Alternative Models and the Limits of Post-Conviction Relief

Professor Garrett and his colleagues recognize that a post-conviction right to claim innocence is not the only possible model for reform. Alternative models include expanded grounds for appeal and the use of the executive, including Criminal Cases Review Commissions, to provide post-conviction remedies. They argue that their new right is consistent with all these models (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021: 358). At the same time, the only CCRC that limits itself to innocence is the one in North Carolina. As discussed in Chapter 6.3.2.1, it has the highest rejection rate of applicants of all the CCRC’s. Although Western Australia and Queensland have recently expressed a preference for proven innocence in their rights to second and subsequent appeals, they still allow convictions on a broader substantial miscarriage of justice standard. Garrett, Helfer and Huckerby predict that a new right to claim innocence “will help to promote convergence across these models and perhaps engender new types of review mechanisms” (Reference Garrett, Helfer and Huckerby2021: 360). Convergence, however, would seem to depend on the adoption of innocence requirements, which could have regressive effects in many parts of the world including those that use CCRC’s and expanded rights of appeal.

Garrett, Helfer and Huckerby seem pessimistic that appellate courts in common law countries will readily admit new evidence. This is a legitimate concern, but the Canadian experience also suggests that appeal courts may be more willing to admit new evidence out of time and correct wrongful convictions than American courts (Roach, Reference Roach2012: 1479–1481). Multiple rounds of post-conviction relief in both state and Federal courts may push American courts to impose higher standards, such as proof of innocence, to challenge convictions (Roach, Reference Roach, Huff and Killias2013a). The American appellate process is particularly restrictive (Findley, Reference Findley2009b) in large part because of the exceptional availability of post-conviction relief in both state and Federal courts. As discussed in Chapter 6.5, one use of proven innocence requirements is to limit successive uses of habeas corpus relief in the United States. As I have argued elsewhere “more procedure based on an actual innocence paradigm may not always produce more effective remedies for the wrongfully convicted” (Roach, Reference Roach2013b: 284).

11.4.10 Is Innocence Different?

Implicit in both Borchard’s and Garrett’s focus on innocence may be the normative claim that innocence is different from and superior to other claims of injustice. Judge Friendly (Reference Friendly1970) suggested that innocence is different and should be the focus in American habeas corpus litigation. Michael Naughton (Reference Naughton2013: 19) has argued that a focus on factual innocence or guilt is “morally correct.”

Innocence is indeed morally attractive. In the abstract. But proof of innocence is much more contingent than its Platonic ideal. The founders of the Innocence Project have recognized that finding proof of innocence is a “crap shoot” (Scheck, Neufeld and Dwyer, Reference Scheck, Neufeld and Dwyer2000: xx) given that DNA evidence is only available in a minority of cases and is not always properly collected or retained. Innocence Projects have reported that 75 per cent of their investigations are thwarted by the destruction of evidence (Jones, Reference Jones2005) and that less than 20 per cent of all cases involve DNA evidence (Medwed, Reference Medwed2022: 8).

11.4.11 The Dangers of Top-Down and Novel Approaches to International Law

Professor Garrett and his colleagues want international law to have a top-down influence on domestic law reforms. They are more enthusiastic about recognizing the right to claim innocence as a new right rather than deriving it from other existing rights (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021). They worry that the right to appeal in Article 14(5) will not always guarantee the reception of new evidence of innocence. This is a legitimate fear but one that should be combatted both for strategic and normative reasons by focusing on a more robust interpretation of Article 14(5).

Strategically, as Garrett and his colleagues recognized, the derivative rights approach is easier to implement because it does not require the international community to accept new rights. Normatively, the danger of the new right to claim innocence is that it will create a higher class of post-conviction remedies and acquittals based on innocence. It is normatively undesirable to undercut existing fair trial and appeal claims simply because they do not claim innocence (Bandes, Reference Bandes2008). This is especially so if it is recognized that whether there is evidence to prove innocence is often a matter of luck not related to the fact of injustice or the victim’s moral worth (Scheck, Neufeld and Dwyer, Reference Scheck, Neufeld and Dwyer2000: xx).

Top-down approaches to international law also risk ignoring the interests of countries in the Global South who have less power in shaping international law. As discussed in Chapter 10.6, the Law Commission of India (2018) rejected both Article 14(6) of the ICCPR and the American proven innocence approach as not relevant given that three-quarters of prisoners in India are awaiting trial. Only 70 of 196 member states in Interpol have DNA databases (Roach, Reference Roach2024a: 808). New DNA evidence seems to be the prototypical example of “newly discovered evidence of innocence” that shows “that the conviction lacks factual support” (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021: 354). It is often not collected in the Global South.

11.4.12 The Dangers of a Populist Neglect of the Presumption of Innocence

My final concern about the right to claim innocence is its effects on the presumption of innocence. Professor Garrett’s approach is strikingly similar to that taken by Professor Borchard more than a century ago and it may be just as successful. But as argued in Chapter 2.5, their common proven innocence approach is in tension with the presumption of innocence. Borchard in his work on compensation simply ignored the presumption of innocence, something that can be explained by the fact that while he was an excellent comparative and transnational lawyer, he was not a criminal lawyer. Brandon Garrett is a pre-eminent criminal law academic and lawyer. He rejects the presumption of innocence on much more sophisticated and empirical grounds.

The presumption of innocence, for Professor Garrett, is “often more lip service than an actual protection of the innocent” (Garrett, Reference Garrett2015: 186). He ably supports this with empirical studies that suggest that most potential American jurors view false acquittals as just as serious as wrongful convictions (Garrett and Mitchell, Reference Garrett and Mitchell2023: 710). A legal academic from China, Moulin Xiong (Reference Xiong2022), has reached similar conclusions based on worldwide public opinion polls. Garrett and Mitchell astutely recognize the political implications of these findings. Borchard would have agreed with their statement that “the median voter is likely to see false convictions and false acquittals as equally as serious” (Garrett and Mitchell, Reference Garrett and Mitchell2023: 748). A focus on factual guilt or innocence is politically popular.

Despite their political fragility, there is a need to defend the presumption of innocence and other due process rights. Even if proven innocence is an acceptable basis for rationing funds devoted to compensating victims of miscarriages of justice, its migration from civil and administrative law in the United States into post-conviction relief should not be the model for other states. There is a normative value to giving our fellow human beings the benefit of a reasonable doubt about their guilt. A right to claim and prove innocence leaves many behind. It will be irrelevant to those wrongly detained before trial. It will be irrelevant to victims of unfair trials. It also leaves behind those who may be innocent, but do not have the means to prove it.

11.5.1 Article 14(6) of the ICCPR

As suggested in part two of this chapter, opposition by the United States and the UK helps explain why the right to compensation in Article 14(6) was restricted to convictions after appeals have been exhausted and that are based on new and conclusive exonerating facts. The UN Human Rights Committee has denied compensation to a person imprisoned but later pardoned as a conscientious objector for resisting military service on the basis that Article 14(6) does not apply if a person has been granted clemency (Paavo Muhonen v. Finland Communication no 89/1981 at 164). The Committee also has denied compensation to a person whose wrongful conviction was corrected on appeal (Uebergang v. Australia, CCPR/C/71/D/963/2001, 22 March 2001 [4.3].

In one case from Australia, an Indigenous man, Terry Irving, was denied legal aid, represented himself and was convicted of a bank robbery on the basis of very weak identification evidence (Roach, Reference Roach2015a: 234–236). The jury only deliberated for ten minutes before convicting him (Irving v. Pfingst – [2021] QCA 280 at para 35). The High Court of Australia quashed his conviction and Terry Irving was released after 4.5 years’ imprisonment. This case is considered a wrongful conviction in Australia (Diosio-Villa, Reference Dioso-Villa2015: 198). Nevertheless, the Human Rights Committee denied Irving compensation because his conviction had been overturned on the basis that the original trial had been unfair and not on the basis that a newly discovered fact showed conclusively that there had been a miscarriage of justice (Irving v. Australia, CCPR/C/74/D/880/1999 at 8.4.). Louis Henkin and Martin Scheinin dissented from the Committee’s decision. They argued that the restrictive requirement for a new or newly discovered fact related only to pardons as opposed to court decisions overturning convictions. This dissent may strain the language in which Article 14(6) is drafted, but it can also be seen as an attempt to update Article 14(6), which was drafted in the 1950s before much contemporary knowledge about wrongful convictions (Calabresi, Reference Calabresi1982).

The United Nations Human Rights Council has stressed in General Comment 32 the necessity “that State parties enact legislation” to comply with Article 14(6). Unfortunately, such legislation can be even more restrictive than the restrictive terms of Article 14(6). As discussed in Chapter 5.7, English legislation has capped compensation to achieve parity with compensation for crime victims, abolished discretionary compensation and required proof of innocence. Some American states cap compensation severely and bar compensation if the accused pled guilty. Florida bans compensation if the accused had a prior record and Alabama and Utah can stop compensation if the recipient is subsequently convicted of a crime (Roach, Reference Roach2024a: 753–754). As discussed in Chapter 6.8, American exonerees receive far more money through litigation than through compensation legislation (Gutman, Reference Gutman2025).

The United Nations Human Rights Committee has found Canada to be in breach of both Article 14(6) of the ICCPR as well as the right to an effective remedy because it does not have legislation to provide compensation for the wrongfully convicted (Dumont v. Canada Communication No. 1467/2006). Dumont did not qualify under 1988 governmental guidelines in Canada that, like American and now English compensation legislation, requires proof of innocence. The sexual assault victim had recanted her identification of Dumont at trial, but the police had failed to collect DNA that could prove innocence (Roach, Reference Roach2023a: 278–283). Canada’s codification of its proven innocence guidelines might comply with General Comment 32 and Dumont v. Canada. Nevertheless, it would have regressive effects given that Canada has frequently awarded compensation to the wrongfully convicted in the absence of proven innocence (Cory, Reference Cory2001; Roach, Reference Roach2024a: 756–760). The Canadian record on compensation is far from perfect with only about half of those who receive remedies for wrongful convictions being compensated (Campbell, Reference Campbell2018: 240–242). But the value of legislation depends on its substance. Proven innocence is a very restrictive rationing of justice and funds paid to compensate victims of miscarriages of justice.

11.5.2 Article 9(5) of the ICCPR

Article 9(5) provides a more generous right to compensation for all unlawful or arbitrary arrests or detention compared to Article 14(6), which provides a right to compensation for only some wrongful convictions. Despite this broad remedy, wrongful pre-trial detention is a global problem that likely eclipses the problem of wrongful convictions. Two South African lawyers have warned that their problem was “less an issue of wrongful conviction as such, and more one of length of incarceration of people who have yet to be convicted” (Gordon and Cloete, Reference Gordon and Cloete2012: 116; emphasis in original). As discussed in Chapter 10.6, the Law Commission of India (2018) focused on compensation for those subject to wrongful pre-trial detention given that the majority of prisoners in India were awaiting trial.

The Open Society has observed that the right against unjustified pre-trial detention is the right that is most “broadly accepted in theory, but so commonly violated in practice. It is fair to say that the global overuse of pre-trial detention is the most overlooked human rights crises in the world” (Open Society, 2015: 269). The problem seems to be getting worse, not better. A 2019 study found a 15 per cent increase in global pre-trial detainees between 2000 and 2016 including increases of 175 per cent in Oceania, 60 per cent in the Americas and 34 per cent in Asia. It examined ten countries finding that 68 per cent of all prisoners in India; 48 per cent of all prisoners in Kenya, 33 per cent of all prisoners in Brazil, 32 per cent of all prisoners in Australia, 29 per cent of all prisoners in Netherlands, 28 per cent of all prisoners in South Africa, 20 per cent of all prisoners in the United States and 11 per cent of all prisoners in England were in pre-trial detention (Heard and Fair, Reference Heard and Fair2019: 3). A 2022 study of Commonwealth countries documented that pre-trial prisoners constituted more than half of all prisoners in fifteen countries including Bangladesh, Barbados, Cameroon, the Gambia, India, Mauritius, Namibia, Nigeria, Pakistan, St. Lucia, Sierra Leone, Sri Lanka, Tanzania, Trinidad and Tobago, and Uganda (Commonwealth Human Rights Initiative, 2022: 17). A common finding in these studies was that the victims of wrongful pre-trial detention tend to be poor and otherwise marginalized. In other words, the type of people who are unlikely to be well-positioned to start civil proceedings against the state or state officials responsible for their wrongful imprisonment. Wrongful pre-trial detainees may also not have as much incentive to litigate to “clear their name” as the wrongfully convicted.

The UN Human Rights Council in General Comment 35 has not called for general legislation to implement Article 9(5). Instead, it contemplates that individual litigation by individuals may be sufficient (General Comment 35: paras 49–50). This raises concerns about access to justice and the under-enforcement of Article 9(5), especially given that many of those subject to unlawful detention may not have the resources or the will to litigate against the state. The lack of implementation of the right to compensation for unlawful detention in much of the world is also consistent with the idea of “remedial deterrence” (Levinson, Reference Levinson1999) where widely violated and expensive to remedy rights are often under-enforced.

A few countries do have statutory schemes of compensation for wrongful pre-trial detention. The Italian Code of Criminal Procedure has provisions providing for compensation for both wrongful pre-trial detention and wrongful convictions (Lonati, Reference Lonati, Jasinki and Kremens2023b: 54). These provisions are designed to fulfil obligations under Article 24(4) of the Italian Constitution that require reparation for all judicial errors. Between 1992 and 2021, Italy paid 819 million euros to 30,017 wrongly detained people compared to 74 million euros being paid to 214 wrongly convicted during the same time period (Reference Leonetti2023a: 65). The Italian data suggests that compensation for wrongful detention can dwarf compensation for wrongful convictions. This may help explain why the Article 9(5) right to compensation for arbitrary or unlawful detention is often honoured in its breach.

11.5.3 Compensation under the Rome Statute

Articles 85 (1) and (2) of the Rome Statute creating the ICC include Article 14(6) and Article 9(5). Article 85(3), however, allows the ICC to award damages “in exceptional circumstances” to a person released from detention after an acquittal or termination of proceedings if “the Court finds conclusive facts showing that there has been a grave and manifest miscarriage justice.” This was a response to concerns raised by both the ICTY and ICTR that they did not have powers to award compensation if they acquitted a person even after years of pre-trial detention (Michels, Reference Michels2010).

The ICC has restrictively interpreted Article 85(3) by stressing that it should only be used exceptionally and that the court has a discretion not to award damages even if it “finds conclusive facts showing that there has been a grave and manifest miscarriage of justice.” The ICC had denied compensation under Article 85(3) to Jean Pierre Bemba who was convicted at trial and sentenced to eighteen years but acquitted in a 3:2 judgment on appeal of war crimes and crimes against humanity including murder, rape and pillaging. Bemba spent eight years in pre-trial detention at the Hague following his arrest when the Congolese politician was visiting Europe (Prosecutor v. Bemba ICC-01/05–01/08–3695, May 18, 2020).

The ICC’s Pre-Trial Chamber stressed that Article 85(3) was “novel and unprecedented in international criminal law” (Prosecutor v. Bemba: para 34). It noted that a few European states, including France, Germany and Italy provided similar compensation for pre-trial detention before an acquittal, but argued that this approach was “controversial” (Prosecutor v. Bemba: para 38) in other countries. It concluded that compensation should only be awarded in “truly exceptional” circumstances such as “the conviction of an innocent person” or “gross negligence in the administration of justice to the detriment of the suspect or the accused” (Prosecutor v. Bemba: para 42). It is perhaps understandable that Bemba was not compensated given the magnitude of the crimes for which he was originally convicted and the divided appeal judgment overturning those convictions. Nevertheless, the decision has created a very high barrier to compensation for pre-trial detention.

The Pre-Trial Chamber’s reference to innocence is arguably even more restrictive than Article 14(6), which is also incorporated in Article 85(2) of the Rome Statute. The International Bar Association (2022: 88) has persuasively argued that “requiring a person whose conviction has been overturned to prove their actual innocence, would be inconsistent with Article 66 of the ICC Statute and internationally recognised human rights.” It has also concluded that legislative expansion of Article 85(3) may be required in light of the restrictive approach taken by the ICC (2022: 97), but this has not yet occurred.

11.5.4 A Unified Approach to Compensating Unlawful Imprisonment?

International rights to compensation for wrongful detention and wrongful convictions are contained in different articles of the ICCPR and are discussed in different General Comments by the United Nations Human Rights Council. Legislation is encouraged and may even be required to implement the less generous right to compensation for wrongful convictions, while the right against wrongful detention is left to expensive civil litigation. Would a more unified approach to compensating people for unlawful imprisonment be desirable?

Some European countries including Italy, Germany, France and the Nordic countries have long provided statutory compensation for both wrongful pre-trial detention and wrongful convictions. Edwin Borchard (Reference Borchard1912) was well aware of this generous approach. Nevertheless, he did not propose it in his ultimately successful attempt to convince most American states and its federal government to enact laws providing compensation for wrongful convictions where innocence can be proven (Borchard, Reference Borchard1912; Zalman, Reference Zalman2020).

Some countries from the Global South have taken an integrated approach to providing compensation for unlawful forms of imprisonment. Article 46 of Algeria’s 2020 Constitution provides that “[a]ny person who is the subject of arbitrary detention, arbitrary temporary confinement, or miscarriage of justice shall have the right to compensation.” Ecuador and Peru take a similarly holistic approach that rejects the artificial distinctions between Articles 9(5) and 14(6). China’s Law on State Compensation also can apply to “wrong” arrest or detention of persons without incriminating facts (Roach, Reference Roach2024a: 776), The Law Commission of India has proposed a scheme that would compensate wrongful pre-trial detention and wrongful convictions (Law Commission, 2018). There is simplicity, elegance, and truthfulness in treating all wrongful imprisonment the same.

The likelihood that compensation for wrongful detention may be more expensive than compensation for wrongful convictions may also help explain why the Human Rights Council has not insisted on compensation legislation to implement Article 9(5). This also may help explain why, as discussed in Chapter 10.6, India has not implemented its Law Commission’s, 2018 recommendations for a compensation scheme that would apply to the wrongly detained and wrongly convicted alike.

11.5.5 Summary

It is unfortunate that international law explicitly addresses miscarriages of justice only through fragmented and back-end rights to compensation after that fact. International rights to compensation for unlawful or arbitrary detention are far more generous on paper than those for wrongful convictions. The attempt to update the ICCPR in Article 85(3) of the Rome Statute has yet to be effective. A better approach would be to provide a right to compensation for all wrongful imprisonment.

Although international law could benefit from more generous approaches to compensating miscarriages of justice, Section 11.6 will argue that even the most generous compensation is not an adequate response to the irreparable harm caused by miscarriages of justice. Indeed, reliance on after-the-fact and even generous compensation could often be a legitimating form of miscarriage of justice washing.

11.6.1 The Need to Situate Rights to Compensation under Articles 9(5) and 14(6) in the Broader Context of Rights

The compensation obligations in both Articles 9(5) and 14(6) should be read in the larger context of the other rights in those articles. Article 9(1) provides the primary right against both unlawful and arbitrary arrest or detention. Articles 9(3) and 9(4) then provide rights to prompt judicial review of detention and release prior to any issue of compensation arising. General Comment 35 stressed that the right to compensation under Article 9(5) does not replace the primary remedies of judicial review and release. Such an approach makes the underlying right against unlawful detention more like a property rule, which often require preventive actions before they are violated.

The relation between the rights protected in Article 14 and the prevention of miscarriages of justice is less clear and more controversial. Scholars in the United States have expressed concerns that the emphasis on due process rights starting with the Warren Court has not prevented either mass imprisonment (Stuntz, Reference Stuntz2011) or wrongful convictions (Findley, Reference Findley2009a). Professor Brandon Garrett (Reference Garrett2011a) has expressed concerns that the focus on due process has left appellate courts and post-conviction processes unable to correct the errors of fact that often lie at the heart of wrongful convictions. More recently, he has suggested that it is not only American law that suffers from this “innocence gap,” but supra-national law (Garrett, Reference Garrett2017a; Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021). There is some force to these criticisms. They suggest that existing due process or fair trial rights need to be interpreted in light of our increasing knowledge about miscarriages of justice (Findley, Reference Findley2009a). For example, the right to appeal should be interpreted with more awareness of the role that factual errors play in many wrongful convictions. It should include rights to introduce important new evidence on appeal that may indicate that a conviction may be a miscarriage of justice. Similarly, the right to counsel should be interpreted in light of increased knowledge about false confessions and mistaken eyewitness identification. Similarly, rights of disclosure and confrontation of adverse witnesses can be interpreted in light of the roles of both non-disclosure and forensic error in wrongful convictions.

11.6.2 The Dangers That Monetary Compensation Can Be a Form of Miscarriage of Justice Washing

Payment of even generous compensation to the wrongfully convicted would not be an adequate response to wrongful conviction. The United States has paid over $4.5 billion in compensation to those who have been exonerated since 1989 (Gutman, Reference Gutman2025). At the same time, less than half of those in the National Registry receive compensation, and hundreds of wrongful convictions are corrected each year with 254 exonerations alone in 2022. Neither the Obama or the Biden administrations repealed 1996 restrictions on habeas corpus relief. The only recent American federal reform was the 2015 Wrongful Conviction Tax Relief Act, which ensures that those who win the lottery of successful post-exoneration compensation and lawsuits are not subject to federal tax on their awards. China has also increased its compensation payments to the wrongfully convicted in recent years (Zhong and Zhang, Reference Zhong and Zhang2022) while also taking steps such as promoting guilty pleas and repression of defence lawyers that likely will increase wrongful convictions. The payment of compensation without taking effective steps to prevent miscarriages of justice whether in the United States or China should be seen and criticized as a form of legitimation that props up unjust systems that continue to cause miscarriages of justice.