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ONDŘEJ SVAČEK
CYIL 6 ȍ2015Ȏ
ICC unless a certain threshold is crossed. Unfortunately, the ICC gave a rather vague
answer to the question of what the dividing line is between violations of human
rights which are
per se
irrelevant and those grave violations that would amount to
unwillingness. Before this threshold is assessed, it is appropriate to briefly comment
on the ACH’s finding in more general terms.
There are at least two reasons which militate against further application of the
ACH’s conclusion that certain egregious violations of the rights of the suspect render
a case admissible before the ICC. Firstly, it was argued that this finding is “contrary
to the foundational premise of treaty interpretation that there exists only a single
‘correct’ or authoritative interpretation of a provision.”
53
This single correct reading, as
described above, stems from a grammatical, teleological and historical interpretation.
R. O’Keefe points out that it is impossible that the very same provision of the treaty
(
i.e.
Article 17 of the ICC Statute) is generally given one meaning but in some
circumstances another. This argument is powerful and may be rebutted only partly.
One may accept the outcome of the proceedings as another example of judicial
creativity before international criminal tribunals, which is generally far from being
rare.
54
The method used by the ICC to reach its conclusion may be probably justified
by the emphasis given to human rights. The Rome Statute in Article 21(3) contains
a reference to internationally recognized human rights – this provision is usually
described as a leading interpretative guideline encompassing the whole Statute.
55
Despite the fact that human rights are applied here selectively (only serious violations
render a case admissible), which is both unsystematic and methodologically wrong,
the ICC should be rather praised than criticized as it is sending a clear message that
some transgressions of human rights will not be tolerated.
Secondly, the
Al-Senussi
admissibility decision should be perceived in the context
of the law applicable before the ICC. According to Article 21(2) of the ICC Statute,
decisions of the Court do not form binding precedents. There is no difference between
a decision of the Pre-Trial, Trial or Appeals Chambers and, contrary to the practice
of
ad hoc
tribunals (the
Aleksovski
case), the case law of the ACH is not placed on a
higher level.
56
The current ACH, from a body 4/5 newly composed in March 2015,
may therefore freely deviate from the conclusion reached by its predecessor. Be this
as it may, the decision explaining the mutual relationship between complementarity
and fair trial rights has been produced, and it is a valid question to ask what its life
will look like. To put this differently: how should the term ‘egregious violations of
the rights’ be interpreted?
53
O’KEEFE, Roger.
International Criminal Law
. Oxford: OUP, 2015, p. 561.
54
DARCY, Shane – POWDERLY, Joseph.
Judicial Creativity at the International Criminal Tribunals
.
Oxford: OUP, 2009, 391 p.
55
Compare Svaček, O.: sub 31, p. 328.
56
BITTI, Gilbert. Article 21 and the Hierarchy of Sources of Law before the ICC. In: Stahn, Carsten
(ed.)
The Law and Practice of the International Criminal Court
. Oxford: OUP, 2015, pp. 422-424.