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The Rights of the Accused under the Rome Statute and the US Bill of Rights: Has 20 Years of ICC Jurisprudence Brought Those Together?

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  • Kacper Jan Zajac
The alleged lower standard of the rights of the accused under the Rome Statute compared to those guaranteed by the US Constitution was one of the most important areas of criticism of the Rome Statute by American scholars. Especially salient at the time when the United States was considering joining the International Criminal Court (ICC) system. This criticism was made in the early 2000s and was based on the text of the Rome Statute alone, before any ICC jurisprudence existed. This paper draws on the 20 years of the operation of the ICC to ascertain whether the judicial interpretation and application of the procedural rights of the defendant, guaranteed under the Rome Statute, have made them more compatible with their counterparts under the US Constitution. The premise of this article is that the 20 years of interpretation and application of those rights may have strengthened them to the point where the gap between the procedural guarantees under the Rome Statute and the US Constitution has become negligible. This, in turn, would make the early criticism of the ICC system obsolete, at least insofar as the legal argument is concerned. Accordingly, this paper examines existing jurisprudence of the ICC in the areas of prosecutorial disclosure obligations, admission of evidence and the examination of witnesses, as those expressly criticised by American scholars as falling short of their equivalents under the US Constitution, yet, at the same time, sufficiently elaborated on by the ICC through case law so as to conduct an effective comparative study. The findings of the study indicate that inasmuch as ICC’s jurisprudence has moved some aspects of the three areas under examination towards their counterparts under the US Constitution, the procedural rights of the defendant before American courts generally remain to more robust.
TidsskriftThe Law and Practice of International Courts and Tribunals
Sider (fra-til)318-366
Antal sider49
StatusUdgivet - aug. 2021

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