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

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) show 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 evidentiary rules. 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, evidentiary issues are inseparable from the practical impediments with respect to fact-finding, which are currently widely discussed in the international criminal justice discourse.