Toward an International Criminal Procedure: Due Process Aspirations and Limitations

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.