United States Concepts of Due Process in Criminal Procedure and the International Criminal Court
Delaine Russell Swenson
John Paul II Catholic University of Lublin , Polandhttps://orcid.org/0000-0002-0781-0765
Abstract
The provisions of the Rome Statute of the International Criminal Court should be evaluated considering the due process principles of the United States Constitution to determine if it would be appropriate for the US government to sanction the sending of a US citizen to the ICC or adopting the Rome Statute. There are several areas including the right to trial by jury, right to confrontation, speedy trial and the composition of the Court that raise serious due process concerns from an American perspective. Considering the ICC’s inability to guarantee the same due process protected by the US Constitution there are serious doubts about American involvement in the Court.
Keywords:
due process, ICC Rome Statute, United States, Criminal procedure, jury trialReferences
Bastian, Casey J. “Examining Pro-Prosecution Bias in the Judiciary: Unconscious Biases of a Prosecutorial Background.” Criminal Legal News, March 2025. Accessed September 12, 2025. https://www.criminallegalnews.org/news/2025/feb/15/examining-pro-prosecution-bias-judiciary-unconscious-biases-prosecutorial-background/.
Casey, Lee A. “The Case Against Supporting the International Criminal Court.” Fordham International Law Journal 25, no. 1 (2001): 840–72. https://ir.lawnet.fordham.edu/ilj/vol25/iss3/15.
Cline, Cynthia J. “Trial Without Undue Delay: A Promise Unfulled in International Criminal Courts.” Revista Brasileira de Políticas Públicas 8, no. 1 (2018): 55–88. https://doi.org/10.5102/rbpp.v8i1.5159.
Dworkin, Anthony. “Why America Is Facing off Against the International Criminal Court.” European Council on Foreign Relations, September 8, 2020. Accessed October 16, 2025. https://ecfr.eu/article/commentary_why_america_is_facing_off_against_the_international_criminal_cou/.
Farell, Brian. “The Right to Speedy Trial Before International Criminal Tribunals.” South African Journal on Human Rights 19, no. 1 (2003): 98–117. https://doi.org/10.1080/19962126.2003.11865174.
Forsyth, William. History of Trial by Jury. London: John W. Parker and Son, 1852.
Fort, Burke O’Hara, Jack W. McCullough, Brian Justin Hoel, Jacqueline L. Mairs, Jean M. Simonitsch, Carl Clark, Patrick Heenan, and Lawrence R. Catt. A Selected Bibliography and Comparative Analysis of State Speedy Trial Provisions. Rockville: National Criminal Justice Reform Service, 1978.
Goodloe, Justice William. “Empowering the Jury as the Fourth Branch of Government.” Essays & Editorials, Fully Informed Jury Association, April 10, 2009. http://callmegav.com/w/wp-content/uploads/2015/01/ES_Goodloe_jury_nullification.pdf.
Grigore, Sabina. “Justice Delayed, Justice Denied: Bias, Opacity and Protracted Case Resolution at the International Criminal Court.” Just Access, May 2, 2023. Accessed October 16, 2025. https://just-access.de/bias-opacity-and-protracted-case-resolution-at-the-international-criminal-court/.
Guthrie, Chris, Jeffrey J. Rachlinski, and Andrew J. Wistrich. “Blinking on the Bench: How Judges Decide Cases.” Cornell Law Review 93, no. 1 (2007): 1–44.
Harris, David. “The Right to a Fair Trial in Criminal Proceedings as a Human Right.” The International and Comparative Law Quarterly 16, no. 2 (1967): 352–78.
Holdsworth, William S. A History of English Law. Vol. 1. London: Methuen & Co., 1903.
Human Rights Watch. “Myths and Facts About the International Criminal Court.” Accessed April 14, 2025. https://www.hrw.org/legacy/campaigns/icc/facts.htm.
International Criminal Court. “Who’s Who.” Accessed May 10, 2025. https://www.icc-cpi.int/judges/judges-who-s-who.
Landynski, Jacob W. “Due Process and the Concept of Ordered Liberty: ‘A Screen of Words Expressing Will in the Service of Desire’?.” Hofstra Law Review 2, no. 1 (1974): Article 1. https://scholarlycommons.law.hofstra.edu/hlr/vol2/iss1/1.
Markovic, Milan. “International Criminal Trials and the Disqualification of Judges on the Basis of Nationality.” Washington University Global Studies Law Review 13, no. 1 (2014). https://openscholarship.wustl.edu/law_globalstudies/vol13/iss1/5/.
Sandefur, Timothy. The Right to Earn a Living: Economic Freedom and the Law. Washington: Cato Institute, 2010.
Spencer, John R. “Adversarial vs Inquisitorial Systems: Is There Still Such a Difference?.” The International Journal of Human Rights 20, no. 5 (2016): 601–16. https://doi.org/10.1080/13642987.2016.1162408.
Strauss, Peter. “Due Process.” Legal Information Institute. Accessed September 12, 2025. https://www.law.cornell.edu/wex/due_process.
Thayer, James B. A Preliminary Treatise on Evidence at the Common Law. Boston: Little, Brown and Company, 1898.
Zappalà, Salvatore. Human Rights in International Criminal Proceedings. Oxford: Oxford University Press, 2005.
John Paul II Catholic University of Lublin https://orcid.org/0000-0002-0781-0765
