Between Show Trials and Sham Prosecutions: The Rome Statute’s Potential Effect on Domestic Due Process Protections

28 Pages Posted: 11 Jul 2012 Last revised: 4 Nov 2014

See all articles by Elinor Fry

Elinor Fry

Amsterdam Law School, University of Amsterdam

Date Written: June 1, 2012

Abstract

This article examines the extent to which the International Criminal Court influences national jurisdictions with respect to due process protections. An analysis of two of the Rome Statute’s safeguards against failing national justice systems, namely the admissibility criteria found in Article 17 and Article 20(3), shows that the Court’s influence may extend to domestic due process rights. The Rome Statute’s complementarity principle leaves room for such an interpretation, inter alia, by demanding regard to due process as recognized by international law when the Court assesses admissibility. A liberal interpretation of this idea is known as the due process thesis. However, the author suggests a narrower approach, only in cases of gross violations of core fair trial rights. Then, the article examines how this moderate form of the due process thesis might affect evidence law. The reason for this is twofold. First, most evidentiary rules can be construed as a form of due process protection, rendering them a comprehensive area of law suitable for examination. Second, evidence law is inseparable from the practical problems of fact-finding impediments, which are currently widely discussed in the international criminal justice discourse.

Keywords: ICC, Saif al-Islam Gaddafi, Complementarity Principle, Admissibility, Due Process Thesis, Evidence Law

Suggested Citation

Fry, Elinor, Between Show Trials and Sham Prosecutions: The Rome Statute’s Potential Effect on Domestic Due Process Protections (June 1, 2012). Criminal Law Forum, Volume 23, Numbers 1-3 (2012), p. 35-62. Available at SSRN: https://ssrn.com/abstract=2103804

Elinor Fry (Contact Author)

Amsterdam Law School, University of Amsterdam ( email )

Nieuwe Achtergracht 166
Amsterdam, Noord-Holland 1018 WV
Netherlands

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