356 / 532
340
ONDŘEJ SVAČEK
CYIL 5 ȍ2014Ȏ
own.”
57
Without any detailed analysis, the TCH responded to this question in the
negative.
58
Even if external jurisprudence is not binding for the ICC, it is probable
that this conclusion would be adopted even before the ICC. It seems that an argument
built on
ex post
attribution of unlawful conduct would fail before the ICC.
Nevertheless, even if responsibility under DARIO would not be accepted, it is
still possible to take into account the concept of due diligence. Here the considered
question would be whether the ICC, even if it had not been involved in the violations
of the human rights of the accused, had any positive obligation to minimize these
violations and prevent them, irrespective of their authors.
59
The concept of due
diligence is different than international responsibility, as no attribution must be
established here. It is enough to briefly say that its applicability before international
criminal tribunals was examined and confirmed in the case-law of another
ad hoc
international criminal tribunal. In the
Kajelijeli
case the ICTR ruled that “under
the prosecutorial duty of due diligence, the Prosecution is required to ensure that,
once it initiates a case, the case proceeds to trial in a way that respects the rights of the
accused.”
60
To the author’s knowledge, the concept of due diligence has unfortunately
not yet been introduced before the ICC. It is advisable that it should find its way here,
as it would be a welcome contribution to human rights protection before the Court.
Conclusion
Without any doubt, current jurisprudence of the ICC confirms the rich potential,
fundamental role and primary importance of internationally recognized human rights
for the activity of the ICC. This article analyzed both achievements and challenges
dealing with the application and interpretation of human rights before the ICC.
The ICC has not yet said its final word on this issue, and new jurisprudence will
surely come. It might address the conflict between various human rights catalogues,
the relation between Article 21(3) and the principle of legality, the extensive
interpretation of human rights exceeding the scope of protection existing in the
jurisprudence of international human rights courts, or the relevance of human rights
violation at the domestic level. It is advisable that any incoming case-law be well
reasoned and elaborated to be fit for the lead role human rights play in international
criminal law.
57
Ibid
., § 66.
58
Ibid
., § 67.
59
TAYLOR, Melinda, JALLOH, Charles Ch. Provisional Arrest and Incarceration in the International
Criminal Tribunals.
Santa Clara Journal of International Law
. 2013, vol. 11, no. 2, p. 320.
60
The Prosecutor v. Kajelijeli. ICTR-98-44A. Judgment, ACH, 23 May 2005, § 220.