CYIL 2014

336

ONDŘEJ SVAČEK

CYIL 5 ȍ2014Ȏ

It was already asserted that the ICC, as an international organization, is not

fully equipped to implement some human rights which were originally tailored to

states. The principle of non-refoulement, brought before the ICC in connection with

detention of witnesses from the DRC, can be taken as an example here.

In 2011 the TCH II excluded application of the non-refoulement principle

with respect to Article 68 (protection of victims and witnesses), because, as an

international organization, the ICC does not possess territory and therefore it is

unable to implement this principle within its ordinary meaning – only a State

which possesses territory is able to apply non-refoulement.

The TCH II went on

to say that, even if the ICC decided to return witnesses immediately, which would

be clear violation of the right to apply for asylum and the right to effective remedy,

the only entity responsible for violation of the non-refoulement principle would be

the Netherlands.

In 2013 the same chamber, in its interpretation of its own 2011

decision, concluded that the principle of non-refoulement attained

ius cogens

status

and “the only means to adhere to the peremptory norm of non-refoulement was to

suspend Article 93(7) of the Statute temporarily and not apply it.”

It seems that

the TCH II accepted that the addressee of non-refoulement is the Court itself – here

with respect to Article 93(7) of the ICC Statute. Finally, in its decision issued in

2014, the ACH concluded that the aforementioned provision can be implemented

in conformity with human rights (without explicit reference to non-refoulement)

and ordered immediate release of detained witnesses, with the Registrar’s obligation

to provide the Netherlands with the opportunity to take adequate steps in respect of

pending asylum requests.

At first sight, ICC’s case-law on non-refoulement is not entirely consistent. The

TCH II excluded its application in relation to Article 68, but confirmed it in respect

of Article 93 of the Statute. Does this mean that various provisions of the Rome

Statute are subject to different human rights standards? And who is the addressee

of non-refoulement obligations? It is obvious that positive obligations arising out of

this principle, whatever their precise scope is, are not transferable to international

organizations as they presuppose the existence of states with their territory.

It might

be tempting to say that the ICC is bound at least by a negative obligation, but it

is not the case either. Closer examination reveals that any transport of a person in

custody from the premises of the Court to the point of departure from the host State

Supra

note 23, § 64.

Ibid

, § 73. The Chamber ruled that by immediate return it would constrain the Netherlands to violate

the witnesses’ rights to invoke the non

refoulement principle. The addressee of the norm is nevertheless

the Netherlands, not the ICC itself.

The Prosecutor v. Katanga

. ICC-01/04-01/07-3405-tENG. Decision on the application for the interim

release of detained Witnesses DRC- D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350. TCH

II, 1 October 2013, § 30.

WOUTERS, Kees.

International Legal Standards for the Protection from Refoulement

. Antwerpen:

Intersentia, 2009, pp. 324-327.