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ONDŘEJ SVAČEK CYIL 5 ȍ2014Ȏ
1. Human Rights before the ICC – Achievements
A notion of ‘internationally recognized human rights’ is interpreted by the ICC
in a broad manner. It encompasses not only customary international law, widely
ratified universal human rights treaties (e.g. ICCPR, CEDAW, CAT) and related
jurisprudence,5 but even soft-law instruments. In the Lubanga case, the TCH I, with
reference to Article 21(3), relied in its legal determination of ‘victim’ and ‘harm’ on
the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law (the so-called van Boven-Bassiouni
principles).6 This approach was criticized by Judge Blattmann, who argued that
Basic Principles are “not a strongly persuasive or decisive authority”.7 Nevertheless,
the ACH opined that the TCH had been merely guided by the Basic Principles
and found no errors in this reference.8 The ACH confirmed that in the context of
Article 21(3) the ICC’s chambers may rely even on sources which are not legally
binding. Of course, the ICC is not bound to apply soft-law instruments, but it is
entirely free to refer to them. Be that as it may, it is noticeable that both chambers
did not refer to a well-settled jurisprudence of the international human rights courts
which provides for a definition of victim. For instance, the European and American
regional human rights protection systems with their case-law on indirect victims
might have been significantly relevant here.9 According to Abels, the important factor
here is the fact that Article 21(3) does not refer to legally binding international
human rights.10 Soft-law instruments can therefore fall into its scope.
Next, the existing case-law shows that the ICC puts strong emphasis not only
on universal human rights instruments but usually builds up its Article 21(3)
argumentation on regional human rights treaties. The position of the latter was
subject to controversy and its practical usage before the ICC was contested at least
5 The Prosecutor v. Bemba. ICC-01/05-01/08-320. Fourth Decision on Victims’ Participation. PTCH III,
12 December 2008, § 40.
6 The Prosecutor v. Lubanga. ICC-01/04-01/06-1119. Decision on Victims’ Participation. TCH I,
18 January 2008, § 35. Compare A/RES/60/147 (21 March 2006).
7 The Prosecutor v. Lubanga. ICC-01/04-01/06-1119. Separate and Dissenting Opinion of Judge René
Blattmann, § 4-6.
8 The Prosecutor v. Lubanga . ICC-01/04-01/06-1432. Judgment on the appeals of The Prosecutor and
The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008. ACH,
11 July 2008, § 33.
9 Compare BURGORGUE-LARSEN, Laurence, ÚBEDA DE TORRES, Amaya. The Inter-American
Court of Human Rights. Case Law and Commentary. Oxford: OUP, 2011, pp. 113-117. ECHR.
Practical Guide on Admissibility Criteria. 2011, p. 13.
Available at:
10 ABELS, Daniel. Prisoners of the International Community. Legal Position of Persons Detained at
International Criminal Tribunals . The Hague: T.M.C. Asser Press, 2012, p. 141. Abels, after pointing
out other examples of soft-law reference in the ICC’s jurisprudence, compares Article 21(3) with Article
106(2) of the ICC Statute – the latter speaks about ‘widely accepted international treaty standards’.