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ONDŘEJ SVAČEK CYIL 5 ȍ2014Ȏ scholars as ( a ) interpretative, ( b ) normative conflict-solving and ( c ) norm-generating (gap-filling). 16 The first approach is the most conservative one. It limits the role of human rights to a mere interpretative guideline. This position was famously outlined by the ACH in the Lubanga case in following words: “Human rights underpin the Statute; every aspect of it […] Its provisions must be interpreted and more importantly applied in accordance with internationally recognized human rights.” 17 The conservative approach presupposes a pre-existence of applicable rule under Article 21(1)(a)-(c). To put this differently, human rights can enter the floor of the ICC only after a relevant applicable law has been identified. 18 One has to logically ask what hierarchy exists between norms applicable by the Court? The Rome Statute draws a clear hierarchy between primary (Statute, Elements of Crimes, Rules of Procedure and Evidence), secondary (applicable treaties and the principles and rules of international law) and tertiary sources (general principles of law derived from national laws). 19 The scholars present unsurprisingly opposite opinions on the hierarchy between human rights and law applicable according to Article 21(1)(a)-(c) of the ICC Statute. According to Gallant , Hafner and Binder , in cases of possible contradiction the ICC Statute prevails over human rights, which are nevertheless superior to other primary, secondary and tertiary sources of law. 20 On the other hand, Pellet strongly advocates precedence of human rights over all other applicable rules, including the Rome Statute itself – with respect to the role attached to human rights, he speaks about “international super-legality”. 21 Pellet asserts that the ICC is obliged to refuse to apply the Rome Statute (and other applicable rules) when they are inconsistent with internationally recognized human rights. 22 Importantly, any possible normative conflict concerns applicability, i.e. not validity of conflicting rules – the ICC is not endowed with power to invalidate a provision of the Rome Statute (and other applicable rules) which is found incompatible with human rights. 23 16 Young, R.: supra note 2, pp. 199-201, Sheppard, D.: supra note 2, pp. 58-63, Pellet, A.: supra note 2, pp. 1079-1081, Hafner, G., Binder, Ch.: supra note 2, pp. 173-177. 17 The Prosecutor v. Lubanga . ICC-01/04-01/06-772 . Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006. ACH, 14 December 2006, § 37. 18 The Prosecutor v. Lubanga . ICC-01/04-01/06-679. Decision on the Practices of Witness Familiarisation and Witness Proofing. TCH 1, 8 November 2006, § 10. This approach has been strongly advocated by part of scholars who at the same time rejected a more generous norm-generating function of Article 21(3). Compare Young, R.: supra note 2, p. 201. Young argues that the conservative approach was confirmed by the Appeals Chamber. Nevertheless, the Appeals Chamber has in the same decision (ICC-01/04-01/06-772) adopted a more liberal line of reasoning (compare infra note 30). 19 BITTI, Gilbert. Article 21 of the Statute of the International Criminal Court and the treatment of sources of law in the jurisprudence of the ICC. In: STAHN, Carsten, SLUITER, Göran. The Emerging Practice of the International Criminal Court . Leiden: Martinus Nijhoff, 2009, pp. 285-304. 20 Gallant, K. S.: supra note 2, pp. 702-703, Hafner, G., Binder, Ch.: supra note 2, p. 190. 21 Pellet, A.: supra note 2, p. 1079. 22 CASSESE, Antonio et al. Cassese’s International Criminal Law . Oxford: OUP, 2013, p. 11. 23 SLUITER, Göran et al. International Criminal Procedure: Principles and Rules . Oxford: OUP, 2013, p. 83.

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