Abstract

How ought the International Criminal Court act with respect to specific procedural due process principles? The purpose of this thesis is to demonstrate that—in the context of the International Criminal Court—procedural due process norms have jus cogens status. International law, in part, is composed of peremptory norms, or those legal obligations which are universal and nonderogable. Traditionally, the literature focuses on substantive peremptory norms: norms against genocide, slavery, and torture. The International Criminal Court poses an important example of an institution dedicated to doing justice in the face of these crimes. Transitioning in a new direction, I argue that procedural due process norms—an impartial judiciary, the presumption of innocence, the ability to select a defense counsel, habeas corpus review, and the ability to appeal a decision reached at trial—are deserving of jus cogens status. To justify this position, I argue that consent-based theories of peremptory norms are subject to a significant flaw: consent provides neither a necessary nor a sufficient condition for determining peremptory status. Contrarily, I argue that a natural law based understanding gives rise to a satisfactory foundation for identifying jus cogens—literally translating to “compelling law”—norms. Having a peremptory nature, jus cogens norms are a hierarchy of norms finding their source in morality itself, which supersede international agreement. Grounded in the fiduciary relationship that exists between the International Criminal Court and its legal subjects, procedural safeguards are necessary to protect the vulnerable legal subject against a more powerful legal institution. A question which follows naturally from the primary question of this thesis asks: Does the Court aim to employ these specific due process procedures? I argue that the Court commits itself to these procedural practices in a satisfying way, confirming its commitment to jus cogens norms.

Advisor

Kille, Kent

Second Advisor

Riley, Evan

Department

Philosophy; Political Science

Publication Date

2016

Degree Granted

Bachelor of Arts

Document Type

Senior Independent Study Thesis

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© Copyright 2016 Alexander P. Downs