348 / 532
332
ONDŘEJ SVAČEK
CYIL 5 ȍ2014Ȏ
scholars as (
a
) interpretative, (
b
) normative conflict-solving and (
c
) norm-generating
(gap-filling).
16
The first approach is the most conservative one. It limits the role of
human rights to a mere interpretative guideline. This position was famously outlined
by the ACH in the
Lubanga
case in following words: “Human rights underpin
the Statute; every aspect of it […] Its provisions must be interpreted and more
importantly applied in accordance with internationally recognized human rights.”
17
The conservative approach presupposes a pre-existence of applicable rule under
Article 21(1)(a)-(c). To put this differently, human rights can enter the floor of the
ICC only after a relevant applicable law has been identified.
18
One has to logically ask what hierarchy exists between norms applicable by the
Court? The Rome Statute draws a clear hierarchy between primary (Statute, Elements
of Crimes, Rules of Procedure and Evidence), secondary (applicable treaties and the
principles and rules of international law) and tertiary sources (general principles
of law derived from national laws).
19
The scholars present unsurprisingly opposite
opinions on the hierarchy between human rights and law applicable according to
Article 21(1)(a)-(c) of the ICC Statute. According to
Gallant
,
Hafner
and
Binder
, in
cases of possible contradiction the ICC Statute prevails over human rights, which are
nevertheless superior to other primary, secondary and tertiary sources of law.
20
On
the other hand,
Pellet
strongly advocates precedence of human rights over all other
applicable rules, including the Rome Statute itself – with respect to the role attached
to human rights, he speaks about “international super-legality”.
21
Pellet
asserts
that the ICC is obliged to refuse to apply the Rome Statute (and other applicable
rules) when they are inconsistent with internationally recognized human rights.
22
Importantly, any possible normative conflict concerns applicability, i.e. not validity
of conflicting rules – the ICC is not endowed with power to invalidate a provision
of the Rome Statute (and other applicable rules) which is found incompatible with
human rights.
23
16
Young, R.:
supra
note 2, pp. 199-201, Sheppard, D.:
supra
note 2, pp. 58-63, Pellet, A.:
supra
note 2,
pp. 1079-1081, Hafner, G., Binder, Ch.:
supra
note 2, pp. 173-177.
17
The Prosecutor v. Lubanga
. ICC-01/04-01/06-772
.
Judgment on the Appeal of Mr. Thomas Lubanga
Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to
article 19 (2) (a) of the Statute of 3 October 2006. ACH, 14 December 2006, § 37.
18
The Prosecutor v. Lubanga
. ICC-01/04-01/06-679. Decision on the Practices of Witness Familiarisation
and Witness Proofing. TCH 1, 8 November 2006, § 10. This approach has been strongly advocated
by part of scholars who at the same time rejected a more generous norm-generating function of
Article 21(3). Compare Young, R.:
supra
note 2, p. 201.
Young
argues that the conservative approach
was confirmed by the Appeals Chamber. Nevertheless, the Appeals Chamber has in the same decision
(ICC-01/04-01/06-772) adopted a more liberal line of reasoning (compare
infra
note 30).
19
BITTI, Gilbert. Article 21 of the Statute of the International Criminal Court and the treatment of
sources of law in the jurisprudence of the ICC. In: STAHN, Carsten, SLUITER, Göran.
The Emerging
Practice of the International Criminal Court
. Leiden: Martinus Nijhoff, 2009, pp. 285-304.
20
Gallant, K. S.:
supra
note 2, pp. 702-703, Hafner, G., Binder, Ch.:
supra
note 2, p. 190.
21
Pellet, A.:
supra
note 2, p. 1079.
22
CASSESE, Antonio
et al. Cassese’s International Criminal Law
. Oxford: OUP, 2013, p. 11.
23
SLUITER, Göran
et al.
International Criminal Procedure: Principles and Rules
. Oxford: OUP, 2013, p. 83.