Argument: ICC courts uphold individual rights and due process

Issue Report: International Criminal Court


Benjamin B. Ferencz, J.D. Harvard 1943 and a Former Nuremberg War Crimes Prosecutor. “Response to Henry Kissinger’s essay ‘The Pitfalls of Universal Jurisdiction’.” 2 July 2001 – His statement that “defendants will not enjoy due process as understood in the United States” is refuted by a host of prominent international lawyers, including a former Legal Adviser to both the Defense and State Departments. (See 95 American Journal of International Law (Jan. 2001) 124).

“U.S. Policy Regarding the International Criminal Court”. Congressional Research Service. 29 Aug. 2006 – Issue #5 Lack of Due Process Guarantees The ICC will not offer accused Americans the due process rights guaranteed them under the U.S. Constitution, such as the right to a jury trial. Supporters of the Rome Statute contend it contains a comprehensive set of procedural safeguards that offers substantially similar protections to the U.S. constitution.42 Some also note that the U.S. Constitution does not always afford American citizens the same procedural rights. For example, Americans may be tried overseas, where foreign governments are not bound to observe the Constitution. Moreover, cases arising in the armed services are tried by court-martial, which is exempt from the requirement for a jury trial. The current U.S. policy about the use of military tribunals in the war against terrorism could lead to suggestions of a double standard on the part of the United States with respect to procedural safeguards in war crimes trials.