Law of Evidence and the Rome Statute’s Due Process Clause

The International Criminal Court (ICC) can be seen as an influential model of due process, as it gives defendants all the procedural rights enumerated in the International Covenant on Civil and Political Rights (ICCPR). Moreover, the complementarity principle imbedded in Article 17 of the Rome Statute, which refers to “the principles of due process recognized by international law,” seems to suggest a positive effect on national due process rights. Arguably, a State’s failure to guarantee a defendant due process rights, most notably fair trial rights as recognized in international human rights law, makes a case admissible under Article 17 of the ICC’s Statute.

Who should guide whom?
This research project focuses on that area of law where fairness in procedure comes closest to fairness in outcome: law of evidence. As evidentiary rules fall largely within the domain of domestic jurisdictions, the outcomes of national and international prosecutions of core international crimes differ considerably. Domestic courts deal with evidentiary challenges in their own way, creating a fragmented picture of an otherwise emerging international criminal justice system. Such fragmentation at the national level diametrically opposes the idea that, under the ICC’s complementarity scheme, domestic courts may be viewed as representing the interests of the international community. However, taking fact-finding impediments and evidentiary challenges experienced at today’s international tribunals into account, who should guide whom?

Evidence law in national prosecutions
At the heart of this research project is a study of domestic case law aimed at mapping divergence and fragmentation at the national level. Elinor Fry focuses on aspects of evidence law in national prosecutions of core international crimes. A legal framework is drawn up through legal-theoretical research of the due process clause as imbedded in the complementarity principle, and of evidentiary rules and principles from the international criminal tribunals.