CYIL 2014

337

HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT

shall be carried out by the competent Dutch authorities.

The only entity responsible

for violation of non-refoulement would therefore be the Netherlands. Except for the

hypothetical and improbable situation of the ICC acting on its own initiative in

violation of the headquarters agreement, non-refoulement is not applicable before

the ICC. This is true not only in respect to Article 68 but at the same time with

respect to Article 93 of the ICC Statute. As easy as this conclusion seems to be, it

took three years to reach it before the Court. This may be used as an example of

difficulties the ICC might face when it adopts human rights which presuppose the

existence of a state.

The second challenge concerns the extensive interpretation of human rights

before the ICC. An illustrative example deals with the right to family visits of persons

detained by the Court. Before the ICC the existence of this right as such, which is

clearly uncontestable, was not at stake but the attached positive obligation to fund

these visits. The case originated from the request of Mathieu Chui, who applied

for funding of a visit of his nuclear family (wife and six children). In her decision,

the Registrar explained that, although no positive obligation to fund family visits

exists, she decided to fund all or part of the costs of the family visits of the detained

persons on a discretionary basis in consideration of their personal situation.

the instant case the Registrar decided to finance visits of only a limited number of

family members. The detainee then applied for judicial review before the Presidency,

which overturned the impugned decision. The Presidency, relying on the ECHR’s

jurisprudence, which emphasizes that human rights must be interpreted in a practical

and effective, rather than theoretical and illusory, manner, concluded that the right to

receive family visits necessitates the provision of funding for such visits by the Court.

The ICC Presidency ruled in favor of the positive obligation to cover the costs

of family visits of detained persons, which has clearly never been provided by

any international human rights courts.

The reaction came immediately. During

meetings of the Assembly of State Parties (ASP) and related bodies some delegations

warned against the creation of a new (customary) law by the ICC. There were

fears that such a law could be later used against states at the domestic level.

In its

resolution on family visits of indigent detainees the ASP expressly stressed “that,

Compare Article 44 and Article 45 of the Headquarters Agreement Between the International Criminal

Court and the Host State.

The Prosecutor v. Katanga and Chui

. ICC-RoR-217-02/08. Decision on “Mr Mathieu Ngudjolo’s

Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision

of 18 November 2008”. Presidency, 10 March 2009, § 10. (Family Visits Decision).

Ibid

., § 32.

The ECHR has never expressly provided for a positive obligation to cover the costs of family visits

of detained persons – an obligation which would arise out from Article 8 of the ECHR. The nearest

precedents cover only family visits as such. Compare

Selmani v. Switzerland

. Appl. no. 70258/01.

ECHR, 28 June 2001, § 1. The ECHR decided that “detention of a person in a prison at a distance from

his family which renders any visit very difficult, if not impossible, may in exceptional circumstances

constitute an interference with his family life.”

Abels, D.:

supra

note 9, pp. 648-650.