CYIL 2014

333

HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT

The jurisprudence of the ICC has preferred the latter approach. In case of

conflict between the ICC Statute (and any other applicable norm) and internationally

recognized human rights, human rights prevail and make the Statute and any other

norm according to Article 21(1) inapplicable. In the

Katanga and Chui

case the

TCH II considered the possibility of the immediate return of three witnesses who, after

completion of testimonies, fearing persecution upon their return to the DRC, applied

for asylum in the Netherlands. The TCH II concluded that it “is unable to apply

Article 93(7) of the Statute in conditions which are consistent with internationally

recognized human rights, as required by Article 21(3) of the Statute.”

The Chamber

referred to the right to apply for asylum and the right to effective remedy which

would be violated had the witnesses been returned to the DRC. Simply, human

rights made the relevant provision of the ICC Statute inapplicable. This outcome

has not been changed even in the appeals proceedings.

In its decision the ACH

did not cast doubt upon precedence of human rights over a provision of the Statute

– it merely concluded that Article 93(7) of the Statute could and should have been

interpreted by the TCH in conformity with human rights in this case as there was no

normative conflict between both sources of law which would have made the Statute

inapplicable.

Superiority of internationally recognized human rights before the ICC is

nevertheless not absolute. If the standard in the internationally recognized human

rights catalogue is lower than the standard contained in the ICC Statute, the latter

prevails. For instance, under Article 67(1)(f) of the ICC Statute the accused has a right

to a competent interpreter and translation, if any of the proceedings of or documents

presented to the Court are not in a language which he/she

fully

understands and

speaks.

On the other hand, Article 14(3)(a) of the ICCPR or Article 6(3)(a) of the

ECHR speak only about language which a person understands. In the

Katanga

case

the ACH concluded “that the standard applicable under the Statute is high – higher,

for example, than that applicable under the European Convention on Human

Rights and the ICCPR.”

Unsurprisingly, the Chamber found the assistance of these

The Prosecutor v. Katanga and Chui

. ICC-01/04-01/07-3003-tENG. Decision on an Amicus Curiae

application and on the “Requête tendant à obtenir présentations des témoins DRC

D02

0350,

DRC

D02

0236, DRC

D02

0228 aux autorités néerlandaises aux fins d’asile” [articles 68 and

93(7) of the Statute]. TCH II, 9 June 2011, § 37. With respect to the non-refoulement principle

compare text

infra

The Prosecutor v. Chui

. ICC-01/04-02/12-158. Order on implementation of the cooperation agreement

between the Court and the Democratic Republic of Congo concluded pursuant article 93(7) of the

Statute. ACH, 20 January 2014, § 30.

The ACH ordered the Registrar to return witnesses to the DRC after consultation with the Netherlands,

which was therefore provided with the opportunity to take necessary steps in respect of the pending

asylum applications of witnesses.

Sluiter, G.

et al.

supra

note 22, p. 92.

The Prosecutor v. Katanga.

ICC- 01/04-01/07-522. Judgment on the appeal of Mr. Germain Katanga

against the decision of Pre-Trial Chamber I entitled “Decision on the Defence Request Concerning

Languages”. ACH, 27 May 2008, § 43-45, § 62.