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HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT
These are assessed in the opening part of the article presented here. Firstly, the
jurisprudence confirms that ‘internationally recognized human rights’ encompass
hard law sources (international treaty and custom) as well as soft law instruments.
Next, regional human rights instruments are given the same relevance as their
universal counterparts. Consistent reference to the European regional mechanism in
purely African cases reveals that the ICC has refused a contextual approach and even
refers to sources which would be clearly inapplicable if the case were to be decided
before a domestic court. Finally, according to the ICC, human rights operate not
only as an interpretative guideline but can also prevail over the inconsistent provision
of the Statute and other primary sources applicable before the ICC (human rights
as
lex superior
), and even act as an autonomous source of law. There is a doctrinal
agreement, despite lack of a clear ICC’s pronunciation on this issue, that the power-
conferring function is limited only to procedural aspects and cannot be extended to
the area of material international criminal law – the principle
nullum crimen sine lege
,
as another central interpretative guideline, precludes any possibility of widening the
scope of individual criminal responsibility under international law.
4
Despite considerable progress, there are still problematic issues concerning the
application and interpretation of human rights before the ICC, which are addressed
in the second part of this article. The ICC, as an international organization, is not
fully equipped to implement some human rights which were originally tailored to
states (e.g. non-refoulement). It might be asserted that the different legal personality
of the ICC limits mechanical transposition of state-oriented human rights standards
into its jurisprudence. Next, one might ask whether the ICC can interpret human
rights extensively and confer on individuals even those rights which have not been
awarded by any international human rights enforcement mechanism ever before.
What legal consequences might this have? Finally, there is a clear tendency in the
ICC’s case-law to limit the ultimate responsibility of the ICC for violations of human
rights at the national level (the requirement of concerted action between a state and
the ICC Prosecutor). The question remains how this approach is compatible with
general concepts of customary international law – the responsibility of international
organizations for internationally wrongful acts and due diligence. These achievements
and challenges shall be analyzed in more detail in the next sections.
European Court of Human Rights’ Jurisprudence?
Human Rights Law Review
. 2011, vol. 11, no. 1,
pp. 91-132. YOUNG, Rebecca. ‘Internationally Recognized Human Rights’ before the International
Criminal Court.
International and Comparative Law Quarterly
. 2011, vol. 60, no. 1, pp. 189-208.
DEPREZ, Christophe. Extent of Applicability of Human Rights Standards to Proceedings before the
International Criminal Court: On Possible Reductive Factors.
International Criminal Law Review
.
2012, vol. 12, no. 4, pp. 721-741.
4
GROVER, Leena. A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes
in the Rome Statute of the International Criminal Court.
European Journal of International Law
. 2010,
vol. 21, no. 3, pp. 558-563.