Fitness to stand trial under international criminal law: Challenges for law and policy

This article reviews the modern international criminal law jurisprudence on fitness to stand trial. It contends that while the International Criminal Tribunal for the formerYugoslavia (ICTY) Appeals Chamber has significantly clarified the important principles, difficult issues remain in terms of application of the law in any given case. This article seeks to distil the legal standards that courts applying international criminal law have utilized, as well as to identify the contentious issues that have led to divergent approaches. Options for reform of the consequences of unfitness findings to reduce the incentives for its assertion and to introduce more nuanced and psychiatrically informed criteria for determinations are canvassed, including confinement of persons found unfit to stand trial in adequately resourced secure facilities.