The evolution of the presumption of innocence in international criminal law

The presumption of innocence is an ancient human right and is included in international criminal law. It is important with regard to atrocity crimes because it is easy to assume that an accused person is guilty as the situations from which this type of allegation arises involve mass human suffering and a strong desire to hold someone responsible. Intended to prevent and overcome assumptions of guilt, the presumption of innocence should be highly developed in international criminal law. This however, is not the case. The presumption of innocence lacks an agreed upon definition and the travaux préparatoires of the international courts and tribunals are largely silent as to what the presumption of innocence means and how it is to be utilised. This has led to the understanding of the right, how it is used, and what protections it affords to change over time.
This paper will trace the development of the presumption of innocence in international criminal law. It will start with the Nuremberg and Tokyo Tribunals where no presumption of innocence was included in the charters and rules, but there are some indicia that the right was respected. The paper then traces the evolution of the presumption through the ad hoc Tribunals, the Extraordinary Chambers in the Court of Cambodia, the Special Court for Sierra Leone, and the International Criminal Court where the understanding of the presumption of innocence has become more developed. This paper argues that despite the lack of treatment in the travaux préparatoires and the rules, the presumption of innocence has developed into a strong right in the modern tribunals and courts. Although there are still some areas where there is room for improvement, the changes seen in the respect for the presumption of innocence in international criminal law are headed in the right direction.