During the Second World War, Churchill, Roosevelt and Stalin all entertained – it is difficult to determine how seriously – the idea of some form of summary justice for major war criminals. The concept now is unthinkable. Indeed, only a few years later, one of the Nuremberg tribunals held that prosecutors and judges involved in a trial lacking the fundamental guarantees of fairness could be held responsible for crimes against humanity. Such guarantees include the right of the accused to introduce evidence, to confront witnesses, to present evidence, to be tried in public, to have counsel of choice, and to be informed of the nature of the charges. Common article 3 of the Geneva Conventions, adopted in 1949, refers to ‘the judicial guarantees which are recognized as indispensable by civilized peoples’ and prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’.

‘It is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings’, said the Secretary-General in his report to the Security Council accompanying the draft ICTY Statute. The Secretary-General cited article 14 of the International Covenant on Civil and Political Rights, the gold standard in terms of codification of the right to a fair trial in international human rights law.