CYIL 2014

ONDŘEJ SVAČEK

CYIL 5 ȍ2014Ȏ

1. Human Rights before the ICC – Achievements A notion of ‘internationally recognized human rights’ is interpreted by the ICC in a broad manner. It encompasses not only customary international law, widely ratified universal human rights treaties (e.g. ICCPR, CEDAW, CAT) and related jurisprudence, 5 but even soft-law instruments. In the Lubanga case, the TCH I, with reference to Article 21(3), relied in its legal determination of ‘victim’ and ‘harm’ on the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (the so-called van Boven-Bassiouni principles). 6 This approach was criticized by Judge Blattmann, who argued that Basic Principles are “not a strongly persuasive or decisive authority”. 7 Nevertheless, the ACH opined that the TCH had been merely guided by the Basic Principles and found no errors in this reference. 8 The ACH confirmed that in the context of Article 21(3) the ICC’s chambers may rely even on sources which are not legally binding. Of course, the ICC is not bound to apply soft-law instruments, but it is entirely free to refer to them. Be that as it may, it is noticeable that both chambers did not refer to a well-settled jurisprudence of the international human rights courts which provides for a definition of victim. For instance, the European and American regional human rights protection systems with their case-law on indirect victims might have been significantly relevant here. 9 According to Abels , the important factor here is the fact that Article 21(3) does not refer to legally binding international human rights. 10 Soft-law instruments can therefore fall into its scope. Next, the existing case-law shows that the ICC puts strong emphasis not only on universal human rights instruments but usually builds up its Article 21(3) argumentation on regional human rights treaties. The position of the latter was subject to controversy and its practical usage before the ICC was contested at least 5 The Prosecutor v. Bemba . ICC-01/05-01/08-320. Fourth Decision on Victims’ Participation. PTCH III, 12 December 2008, § 40. 6 The Prosecutor v. Lubanga . ICC-01/04-01/06-1119. Decision on Victims’ Participation. TCH I, 18 January 2008, § 35. Compare A/RES/60/147 (21 March 2006). 7 The Prosecutor v. Lubanga . ICC-01/04-01/06-1119. Separate and Dissenting Opinion of Judge René Blattmann, § 4-6. 8 The Prosecutor v. Lubanga . ICC-01/04-01/06-1432. Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008. ACH, 11 July 2008, § 33. 9 Compare BURGORGUE-LARSEN, Laurence, ÚBEDA DE TORRES, Amaya. The Inter-American Court of Human Rights. Case Law and Commentary . Oxford: OUP, 2011, pp. 113-117. ECHR. Practical Guide on Admissibility Criteria . 2011, p. 13. Available at : http://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf 10 ABELS, Daniel. Prisoners of the International Community. Legal Position of Persons Detained at International Criminal Tribunals . The Hague: T.M.C. Asser Press, 2012, p. 141. Abels , after pointing out other examples of soft-law reference in the ICC’s jurisprudence, compares Article 21(3) with Article 106(2) of the ICC Statute – the latter speaks about ‘widely accepted international treaty standards’.

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