Predictive Due Process and the International Criminal Court

The International Criminal Court (ICC) operates under a regime of complementarity: a domestic state prosecution of a defendant charged before the ICC bars the Court from hearing the case unless the state is unable or unwilling to prosecute the accused. For years, scholars have debated the role of due process considerations in complementarity. Can a state that has failed to provide the accused with adequate due process protections nonetheless bar a parallel ICC prosecution? One popular view, first expressed by Professor Kevin Jon Heller, holds that due process considerations do not factor into complementarity and the ICC could be forced to cede a case even to a state intent on subjecting the accused to a show trial. Drawing on recent ICC precedents, this Article argues that the Pre-Trial Chamber has begun to resolve this open question. The Court is now developing a system of “predictive due process.” Under this new model of due process, the Court considers to a limited extent whether domestic criminal proceedings abide by international norms and, as part of the analysis, the Court tries to predict how the state in question would treat the accused if given control of the case. Taking a rational actor view of judicial behavior, this Article concludes that the rise of predictive due process is inevitable. From the perspective of ICC judges entrusted with the Court’s institutional legitimacy, some consideration of due process factors is the optimal risk-averse strategy. Finally, proceeding from the conclusion that the ICC inevitably will use predictive due process, the Article argues that the ICC should learn from other courts that engage in similar inquiries. Specifically, the Court should seek guidance from the International Criminal Tribunal for the Former Yugoslavia’s decision making under Article 11 bis, international economic law jurisprudence on standards of review, and the proportionality jurisprudence of international human rights tribunals. Although reliance on human rights law conflicts with stated ICC doctrine, this standard may give way in practice, if not in form.