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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.

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