Cornell International Law Journal


Confrontation (Criminal law), Judicial discretion, Due process of law


This article considers international norms concerning the right to adversarial confrontation in positing a normative analytical standard of admissibility with respect to the "right to examine" guaranteed under Article 67(1)(e) of the Rome Statute of the International Criminal Court (ICC). It considers the notion of confrontation in the context of both the Continental European tradition, as well as the Anglo-American Common Law conception of the right, focusing on U.S. constitutional doctrine and relatively recent developments in English jurisprudence. It also surveys the scope of the right to examine as defined by the U.N. Human Rights Committee relative to the International Covenant on Civil and Political Rights (ICCPR), and by the European Court with regard to the European Convention. The article further evaluates the procedural regime concerning the admission of written evidence not subjected to cross-examination under the Rome Statute and the ICC's Rules of Procedure and Evidence and argues that the broad judicial discretion it affords is insufficient to fully and predictably guarantee the core right to adversarial examination of witnesses intended under Article 67(1)(e). Ultimately, the article concludes that a bright-line rule of admissibility is not only a viable international standard, but also the one that best protects the hybridized right to examine as a core due process tenet of the Rome Statute.

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