Unfitness to Stand Trial under International Criminal Law: The Influential Decision of the International Criminal Tribunal of the Former Yugoslavia in relation to Pavle Strugar and its Ramifications

Fitness to stand trial constitutes a fundamental threshold for participation in criminal justice. Although there has been extensive jurisprudence on the subject under international law, the 2008 Strugar decision by the Appellate Chamber of the ICTY provides the major authority for guiding subsequent decisions of the International Criminal Court and other tribunals on the subject. This article reviews the reasoning of the decision and highlights its limitations. Having regard to some of the difficult scenarios in which fitness to stand trial decisions have needed to be made under international criminal law, it reflects on potential improvements to the Strugar formulation by the introduction of rationality considerations to decision-making on the subject.