351 / 532
335
HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT
prominent position of Article 21(3) in the system of applicable law before the ICC,
it cannot be read in isolation; quite the contrary, it must be applied and interpreted
systematically with reference to another principal interpretative guideline, namely
the principle of legality contemplated in Article 22 of the ICC Statute. The
nullum
crimen sine lege
principle is itself firmly embedded in international human rights
law as a right of absolute character which does not permit any derogation.
34
Simply,
the principle of legality trumps Article 21(3) and limits its usage before the ICC.
In support of this conclusion,
Schabas
refers to
travaux preparatoires
which “require
interpretation by the Court to be consistent with the
nullum crimen sine lege
rule”.
35
To put it differently, the norm-generating function of internationally recognized
human rights is restricted only to procedural issues and cannot be extended to the
area of substantive international criminal law.
36
Human rights cannot be used as a
sole justification for expanding jurisdiction of the ICC and the broadening of the
criminal responsibility of accused or suspect persons investigated and prosecuted
before it.
37
To the knowledge of the present author, the mutual relation between the
principle of legality and internationally recognized human rights has not yet been
considered by the ICC, but, if the Court would face this issue, it will have virtually
no other option than to confirm the primacy of the
nullum crimen sine lege
rule.
At the same time, the jurisprudence of the ICC has already confirmed the norm-
generating function with respect to procedural issues before the Court.
2. Human Rights before the ICC – Challenges
The previous section described achievements and clarifications the ICC’s
jurisprudence has already brought with respect to Article 21(3). It also pointed to
some aspects which have not yet been expressly solved before the ICC (diverging
standards of human rights protection, relation to the principle of legality), but which
should not be challenging for the Court as there are obvious solutions for them. On the
other hand, some conclusions concerning human rights already adopted by the ICC
are challengeable and pose important questions which will be briefly discussed here.
34
Compare Article 11(2) of the UDHR, Article 15 of the ICCPR, Article 7 of the ECHR, Article 9 of
the ACHR, Article 7(2) of the ACHPR, Article 49 of the CFREU.
35
Schabas, W.:
supra
note 2, p. 398.
36
Another example of the norm-creating function deals with Rule 81(4) of the ICC RPE. Compare
SLUITER, G.
et al.
:
supra
note 22, p. 93. The RPE provides for restriction on disclosure of identity of
victims, witness and their family members. The ACH nevertheless expanded wording of the RPE to
cover even ‘innocent third parties’. The Chamber stressed that Rule 81(4) should be read to include
the words ‘persons at risk on account of the activities of the Court’, which was the interpretation in
adherence with the requirement contained in Article 21(3) of the ICC Statute. Compare
The Prosecutor
v. Katanga
. ICC-01/04-01/07-475. Judgment on the appeal of the Prosecutor against the decision of
Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact
Witness Statements”. ACH, 13 May 2008, § 57.
37
Grover, L.:
supra
note 3, p. 562. According to
Grover
, Article 22 operates as
lex specialis
in relation to
Article 21(3).