355 / 532
339
HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT
Article 9 of the Draft Articles on the Responsibility of International Organizations
for Internationally Wrongful Acts adopted by the International Law Commission
(ILC) in 2011(DARIO) and the principle of due diligence.
The term ‘concerted action’ was used for the first time in the
Lubanga
case by
the PTCH I in 2006.
53
In explanation of this concept, the PTCH I referred to the
case-law of the ECHR (
Stocké v. Germany
) and the ICTR (
Semanza
,
Rwamakuba
,
Barayagwitza
). In this author’s opinion, concerted action constitutes a specific rule
of attribution of the (wrongful) conduct to the ICC – it deals with the mutual
relation between different entities (here the ICC and a state).
54
It presupposes
ex ante
participation of the ICC (typically the Prosecutor) on the conduct of a state. This
approach might be criticized because it does not take into consideration possible
ex post
attribution anticipated in Article 9 of the DARIO (acknowledgement and
adoption of the conduct as its own). One may ask, whether the potential benefit of
the accused’s presence before the ICC, obtained e.g. by a violation of human rights
by a state – and solely by a state, may amount to acknowledgement and adoption,
regulated in Article 9 of the DARIO, and may therefore be attributed to the ICC. It
is possible to refer to the Eichmann abduction from Argentina, which is used by the
ILC in the Draft Articles on Responsibility of States for Internationally Wrongful
Acts (2001), as an analogous example.
55
In this situation Israel benefited from the
capture of Eichmann, which was
allegedly
undertaken by private individuals. What
if the ICC would be in the same position as Israel? What if the accused had been
apprehended in a violation of human rights which would not have been the result
of concerted action between the ICC and a state or private individuals? Would the
benefit of the accused’s presence before the ICC amount to
ex post
attribution?
The nearest precedent is represented by the
Nikolić
case decided before the ICTY.
The accused, Dragan Nikolić, had been abducted by unknown individuals and later
handed over to SFOR.
56
Finally, he was transferred to the ICTY, which simply
made a profit from his presence in The Hague. Of course, in the light of the accused’s
abduction, the defence challenged the exercise of jurisdiction by the Tribunal. Among
other things, the ICTY considered “whether the fact that SFOR and the Prosecution
became the mere passive beneficiary of fortuitous (even irregular) rendition to Bosnia
could amount to “adoption” and “acknowledgement” of the illegal conduct as their
53
The Prosecutor v. Lubanga
. ICC-01/04-01/06-552. Decision on the Defence Challenge to the Jurisdiction
of the Court pursuant to article 19 (2) (a) of the Statute. PTCH I, 3 October 2006. Later this decision
was confirmed by the ACH as follows: “nothing reveals an error in this finding which cannot but be
sustained.” Compare
The Prosecutor v. Lubanga
,
supra
note 16, § 42.
54
From this perspective, the case
Stocké v. Germany
does not seem to be entirely persuasive authority
for establishment of this test. In the part referred to, the ECHR speaks about the seriousness of the
conduct, rather than the relation between various entities.
55
Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 53, § 5. As was revealed
later, Eichmann had been abducted from Argentina by Mosad,
de iure
organ of Israel. An internationally
wrongful act was therefore attributable to Israel from its very beginning, not only
ex post
.
56
The Prosecutor v. Nikolić
. IT-94-2-PT. Decision on Defence Motion Challenging the Exercise of
Jurisdiction by the Tribunal. TCH II, 9 October 2000, § 15.