CYIL 2014

HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT These are assessed in the opening part of the article presented here. Firstly, the jurisprudence confirms that ‘internationally recognized human rights’ encompass hard law sources (international treaty and custom) as well as soft law instruments. Next, regional human rights instruments are given the same relevance as their universal counterparts. Consistent reference to the European regional mechanism in purely African cases reveals that the ICC has refused a contextual approach and even refers to sources which would be clearly inapplicable if the case were to be decided before a domestic court. Finally, according to the ICC, human rights operate not only as an interpretative guideline but can also prevail over the inconsistent provision of the Statute and other primary sources applicable before the ICC (human rights as lex superior ), and even act as an autonomous source of law. There is a doctrinal agreement, despite lack of a clear ICC’s pronunciation on this issue, that the power conferring function is limited only to procedural aspects and cannot be extended to the area of material international criminal law – the principle nullum crimen sine lege , as another central interpretative guideline, precludes any possibility of widening the scope of individual criminal responsibility under international law. 4 Despite considerable progress, there are still problematic issues concerning the application and interpretation of human rights before the ICC, which are addressed in the second part of this article. The ICC, as an international organization, is not fully equipped to implement some human rights which were originally tailored to states (e.g. non-refoulement). It might be asserted that the different legal personality of the ICC limits mechanical transposition of state-oriented human rights standards into its jurisprudence. Next, one might ask whether the ICC can interpret human rights extensively and confer on individuals even those rights which have not been awarded by any international human rights enforcement mechanism ever before. What legal consequences might this have? Finally, there is a clear tendency in the ICC’s case-law to limit the ultimate responsibility of the ICC for violations of human rights at the national level (the requirement of concerted action between a state and the ICC Prosecutor). The question remains how this approach is compatible with general concepts of customary international law – the responsibility of international organizations for internationally wrongful acts and due diligence. These achievements and challenges shall be analyzed in more detail in the next sections. European Court of Human Rights’ Jurisprudence? Human Rights Law Review . 2011, vol. 11, no. 1, pp. 91-132. YOUNG, Rebecca. ‘Internationally Recognized Human Rights’ before the International Criminal Court. International and Comparative Law Quarterly . 2011, vol. 60, no. 1, pp. 189-208. DEPREZ, Christophe. Extent of Applicability of Human Rights Standards to Proceedings before the International Criminal Court: On Possible Reductive Factors. International Criminal Law Review . 2012, vol. 12, no. 4, pp. 721-741. 4 GROVER, Leena. A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court. European Journal of International Law . 2010, vol. 21, no. 3, pp. 558-563.

329