CYIL 2014

HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT prominent position of Article 21(3) in the system of applicable law before the ICC, it cannot be read in isolation; quite the contrary, it must be applied and interpreted systematically with reference to another principal interpretative guideline, namely the principle of legality contemplated in Article 22 of the ICC Statute. The nullum crimen sine lege principle is itself firmly embedded in international human rights law as a right of absolute character which does not permit any derogation. 34 Simply, the principle of legality trumps Article 21(3) and limits its usage before the ICC. In support of this conclusion, Schabas refers to travaux preparatoires which “require interpretation by the Court to be consistent with the nullum crimen sine lege rule”. 35 To put it differently, the norm-generating function of internationally recognized human rights is restricted only to procedural issues and cannot be extended to the area of substantive international criminal law. 36 Human rights cannot be used as a sole justification for expanding jurisdiction of the ICC and the broadening of the criminal responsibility of accused or suspect persons investigated and prosecuted before it. 37 To the knowledge of the present author, the mutual relation between the principle of legality and internationally recognized human rights has not yet been considered by the ICC, but, if the Court would face this issue, it will have virtually no other option than to confirm the primacy of the nullum crimen sine lege rule. At the same time, the jurisprudence of the ICC has already confirmed the norm generating function with respect to procedural issues before the Court. 2. Human Rights before the ICC – Challenges The previous section described achievements and clarifications the ICC’s jurisprudence has already brought with respect to Article 21(3). It also pointed to some aspects which have not yet been expressly solved before the ICC (diverging standards of human rights protection, relation to the principle of legality), but which should not be challenging for the Court as there are obvious solutions for them. On the other hand, some conclusions concerning human rights already adopted by the ICC are challengeable and pose important questions which will be briefly discussed here. 36 Another example of the norm-creating function deals with Rule 81(4) of the ICC RPE. Compare SLUITER, G. et al. : supra note 22, p. 93. The RPE provides for restriction on disclosure of identity of victims, witness and their family members. The ACH nevertheless expanded wording of the RPE to cover even ‘innocent third parties’. The Chamber stressed that Rule 81(4) should be read to include the words ‘persons at risk on account of the activities of the Court’, which was the interpretation in adherence with the requirement contained in Article 21(3) of the ICC Statute. Compare The Prosecutor v. Katanga . ICC-01/04-01/07-475. Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”. ACH, 13 May 2008, § 57. 37 Grover, L.: supra note 3, p. 562. According to Grover , Article 22 operates as lex specialis in relation to Article 21(3). 34 Compare Article 11(2) of the UDHR, Article 15 of the ICCPR, Article 7 of the ECHR, Article 9 of the ACHR, Article 7(2) of the ACHPR, Article 49 of the CFREU. 35 Schabas, W.: supra note 2, p. 398.

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