CYIL 2014

HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT The jurisprudence of the ICC has preferred the latter approach. In case of conflict between the ICC Statute (and any other applicable norm) and internationally recognized human rights, human rights prevail and make the Statute and any other norm according to Article 21(1) inapplicable. In the Katanga and Chui case the TCH II considered the possibility of the immediate return of three witnesses who, after completion of testimonies, fearing persecution upon their return to the DRC, applied for asylum in the Netherlands. The TCH II concluded that it “is unable to apply Article 93(7) of the Statute in conditions which are consistent with internationally recognized human rights, as required by Article 21(3) of the Statute.” 24 The Chamber referred to the right to apply for asylum and the right to effective remedy which would be violated had the witnesses been returned to the DRC. Simply, human rights made the relevant provision of the ICC Statute inapplicable. This outcome has not been changed even in the appeals proceedings. 25 In its decision the ACH did not cast doubt upon precedence of human rights over a provision of the Statute – it merely concluded that Article 93(7) of the Statute could and should have been interpreted by the TCH in conformity with human rights in this case as there was no normative conflict between both sources of law which would have made the Statute inapplicable. 26 Superiority of internationally recognized human rights before the ICC is nevertheless not absolute. If the standard in the internationally recognized human rights catalogue is lower than the standard contained in the ICC Statute, the latter prevails. For instance, under Article 67(1)(f) of the ICC Statute the accused has a right to a competent interpreter and translation, if any of the proceedings of or documents presented to the Court are not in a language which he/she fully understands and speaks. 27 On the other hand, Article 14(3)(a) of the ICCPR or Article 6(3)(a) of the ECHR speak only about language which a person understands. In the Katanga case the ACH concluded “that the standard applicable under the Statute is high – higher, for example, than that applicable under the European Convention on Human Rights and the ICCPR.” 28 Unsurprisingly, the Chamber found the assistance of these 24 The Prosecutor v. Katanga and Chui . ICC-01/04-01/07-3003-tENG. Decision on an Amicus Curiae application and on the “Requête tendant à obtenir présentations des témoins DRC - D02 - P - 0350, DRC - D02 - P - 0236, DRC - D02 - P - 0228 aux autorités néerlandaises aux fins d’asile” [articles 68 and 93(7) of the Statute]. TCH II, 9 June 2011, § 37. With respect to the non-refoulement principle compare text infra . 25 The Prosecutor v. Chui . ICC-01/04-02/12-158. Order on implementation of the cooperation agreement between the Court and the Democratic Republic of Congo concluded pursuant article 93(7) of the Statute. ACH, 20 January 2014, § 30. 26 The ACH ordered the Registrar to return witnesses to the DRC after consultation with the Netherlands, which was therefore provided with the opportunity to take necessary steps in respect of the pending asylum applications of witnesses. 27 Sluiter, G. et al. : supra note 22, p. 92. 28 The Prosecutor v. Katanga. ICC- 01/04-01/07-522. Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled “Decision on the Defence Request Concerning Languages”. ACH, 27 May 2008, § 43-45, § 62.

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