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according to existing law and standards, the right to family visits does not comprise
a co-relative legal right to have such visits paid for by the detaining authority or any
other authority.”
47
The important question here is whether the ICC can go beyond the limits of existing
internationally recognized human rights. A grammatical interpretation of Article 21(3)
would indicate an answer in the negative (application and interpretation must be
consistent with internationally recognized human rights). Then the argument may
follow that, even if the ICC is not formally bound by external jurisprudence on human
rights, it simply cannot disregard it, as it is pronounced by organs established especially
for this purpose.
48
The ICC should therefore accept limits of this jurisprudence and
should not exceed it. On the other hand, it cannot be expected that the ICC, as an
autonomous entity, will mechanically adopt existing principles previously sanctified
by human rights bodies. Quite the contrary, it will stress the uniqueness of its
own position and the background in which it operates as justification for possible
divergence from existing standards.
49
Current jurisprudence of the ICC reveals that
the Court, in the application and interpretation of human rights, acts very much as
a human rights court.
50
The inevitable outcome of such a new role is that the Court
will interpret human rights according to its specific needs – it will have a margin of
appreciation.
51
Nevertheless, any dividing line between creative interpretation and law-
making is very blurred. Be that as it may, any departure from the existing human rights
framework should be well reasoned and elaborated to prevent possible opposition from
states pointing to self-attribution of a law-making function by the ICC.
Finally, the third challenge deals with a tendency on the part of the ICC to
disregard violations of human rights which occurred at the domestic level. Under the
current ICC jurisprudence, the ICC finds relevant only those violations which are
the result of the ‘concerted action’ between the ICC (Prosecutor) and a state. This
aspect is especially important in respect to obtaining accused persons.
52
The last part
briefly analyzes how the requirement of concerted action conforms to principles of
attribution in the law of responsibility of international organizations, especially to
47
Resolution ICC-ASP/8/Res.4, 26 November 2009.
48
Compare Article 21(2) of the ICC Statute.
49
Family Visits Decision, § 32. The same holds true with respect to the IACHR. Despite heavy reliance
on the ECHR’s case-law, the IACHR departs from it whenever it finds it necessary to consider regional
specificities. Compare LIXINSKI, Lucas. Comparative International Human Rights Law: An Analysis
of the Right to Private and Family Life across Human Rights “Jurisdictions”.
Nordic Journal of Human
Rights
. 2014, vol. 32, no. 2, pp. 99-117.
50
The Prosecutor v. Lubanga
. ICC-01/04-01/06-tEN. Decision on the confirmation of charges. PTCH I,
29 January 2007, § 79. PTCH I elaborated on the proportionality test.
51
According to
Medina
, “the content of a right necessarily evolves as new possibilities of its application
are unveiled.” MEDINA, Cecilia. The Role of International Tribunals: Law Making or Creative
Interpretation? In: SHELTON, Dinah (ed.)
The Oxford Handbook of Human Rights Law
. Oxford:
OUP, 2013, p. 653.
52
The tendency to disregard violations of human rights is nevertheless visible even in other areas –
compare
The Prosecutor v. Katanga and Chui
,
supra
note 23, § 62.