CYIL 2014

ONDŘEJ SVAČEK CYIL 5 ȍ2014Ȏ human rights instruments limited and elaborated on a standard which would reflect more demanding wording of the ICC Statute provision. Taking into account that international human rights law provides only a minimum standard which can be expanded at the domestic or organizational level, this is only a possible solution. 29 The rich potential of Article 21(3) nevertheless does not end up here. The jurisprudence of the ICC confirms even the norm-creating (gap-filling) function of human rights. The classical example of this approach is a stay of proceedings in an event of flagrant violation of the human rights of the accused, although this institute is not contained in the Rome Statute or other primary law applicable before the ICC. 30 In the Lubanga case the ACH concluded: “Where fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/ her accusers, it would be a contradiction in terms to put the person on trial. […] If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped” 31 Finally, the proceedings were not stayed at this stage, as the PTCH and the ACH did not find any violation of human rights. Nevertheless, the proceedings in the same case were temporarily stayed later (for seven months) due to non-disclosure by the Prosecutor of exculpatory materials covered by Article 54(3) (e) of the ICC Statute. 32 If Article 21(3) is being employed in the ICC’s jurisprudence as an autonomous source of law, it is logical to ask the limits of its usage. This issue is, of course, not unimportant. Would it be for example possible to extend elements of the crime of conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities (Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the ICC Statute) by reference to international human rights law which protects children until the age of eighteen years? 33 It seems persuasive that any such extension of criminal responsibility is clearly inadmissible. Despite the 29 Compare e.g. the decision of the Czech Constitutional Court which concluded: “[I]t is an internationally recognized principle that ratification of an international treaty does not affect more favourable rights, protection and condition guaranteed by domestic legislation.” Pl. ÚS 31/94, 24 May 1995, No. 164/1995 Coll. 30 Schabas, W.: supra note 2, p. 399. 31 The Prosecutor v. Lubanga , supra note 16, § 37. Paulussen rightly points out an inconsistency in this finding. Paulussen, Ch.: supra note 2, p. 890. The ACH even established the second test, stressing the discretion (i.e. not an obligation) with respect to a stay of the proceedings. The ACH ruled: “Where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/ her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed.” Supra note 16, § 39. 32 Decision of the TCH (ICC-01/04-01/06-1401) from 13 June 2008 was confirmed by the ACH. Compare The Prosecutor v. Lubanga. ICC-01/04-01/06-1486. Judgment on the Appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”. ACH, 21 October 2008. 33 Compare Article 1 and Article 2 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

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