347 / 532
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HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT
among some scholars.
11
It is possible to distinguish two possible approaches here:
(
a
) contextual and (
b
) minimalist.
12
Under the first scenario, the ICC should apply
only those regional human rights instruments that would be relevant had a case been
prosecuted before domestic courts. Simply, if the ICC deals with an African case,
it should refer only to the Banjul Charter and disregard its American or European
counterparts. On the other hand, under the minimalist perspective there is no such
limitation and the ICC is free to apply any regional human rights catalogue which
was recognized internationally. Undoubtedly, the ICC has chosen the minimalist
path and consistently refers to the ECHR (or the ACHR) even in purely African cases
which are currently being prosecuted before it.
13
This position is to be welcomed as
there is nothing in the ICC Statute or other relevant rules applicable before the ICC
what would preclude the Court from taking this stand.
To the author’s knowledge, the ICC has not yet considered differences between
various human rights catalogues and related jurisprudence.
14
It is not excluded – and
due to the fact that the ICC is permitted to apply virtually all human rights treaties,
it is quite probable – that this issue may find its path to the Court. Possible conflicts
and diverging standards should be reconciled by reference to the key principle in
international human rights protection: the highest standard should prevail.
15
The early jurisprudence of the ICC has already elucidated the functions and role
of human rights before the ICC. The function of Article 21(3) has been described by
11
Compare
Hafner
and
Binder,
who on the basis of literal reading of Article 21(3) assert that “[r]egional
standards […] would be excluded due to the requirement that the rights have to be internationally
recognized.” Compare supra note 2, p. 187.
12
Sheppard, D.,
supra
note 2, pp. 63-67.
13
The Prosecutor v. Al-Bashir
. ICC-02/05-01/09-3. Decision on the Prosecution’s Application for a
Warrant of Arrest against Omar Hassan Ahmad Al Bashir. PTCH I, 4 March 2009, § 9, § 32.
The
Prosecutor v. Lubanga
. ICC-01/04-01/06-tEN. Decision on the confirmation of charges. PTCH I, 29
January 2007, § 86-87.
The Prosecutor v. Lubanga
. ICC-01/04-01/06-2205. Judgment on the appeals of
Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled
“Decision giving notice to the parties and participants that the legal characterisation of the facts may
be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”. ACH, 8
December 2009, § 84.
The Prosecutor v. Bemba
. ICC-01/05-01/08-323. Judgment on the appeal of
Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on
application for interim release” ACH, 16 December 2008, § 28.
14
To give just one example, it is possible to refer to interpretation of ‘law’ with respect to limitation of
human rights (triple test). While the ECHR interprets this word in a material sense, the IACHR prefers
a formal reading. SHELTON, Dinah, CAROZZA, Paolo.
Regional Protection of Human Rights
. Oxford:
OUP, 2013, p. 630. Differences in human rights protection, which is a topic going beyond the scope
of this paper, deal with fragmentation in international law. Compare
Fragmentation of International
Law: Difficulties Arising from the Diversification and Expansion of International Law
. Report of the
Study Group of the International Law Commission. 13 April 2006. UN GA (A/CN.4/L.682). On
the specific issue of fragmentation in international human rights law compare e.g. Fragmentation in
International Human Rights Law – Beyond Conflict of Laws.
Nordic Journal of Human Rights
. 2014,
vol. 32, no. 2, pp. 87-175.
15
The Prosecutor v. Mrkšić and Šljivančanin
. ICTY. IT-95-13/1-A. Partially Dissenting Opinion of Judge
Pocar. Judgment. ACH, 5 May 2009, § 7.