CYIL 2014

ONDŘEJ SVAČEK CYIL 5 ȍ2014Ȏ It was already asserted that the ICC, as an international organization, is not fully equipped to implement some human rights which were originally tailored to states. The principle of non-refoulement, brought before the ICC in connection with detention of witnesses from the DRC, can be taken as an example here. In 2011 the TCH II excluded application of the non-refoulement principle with respect to Article 68 (protection of victims and witnesses), because, as an international organization, the ICC does not possess territory and therefore it is unable to implement this principle within its ordinary meaning – only a State which possesses territory is able to apply non-refoulement. 38 The TCH II went on to say that, even if the ICC decided to return witnesses immediately, which would be clear violation of the right to apply for asylum and the right to effective remedy, the only entity responsible for violation of the non-refoulement principle would be the Netherlands. 39 In 2013 the same chamber, in its interpretation of its own 2011 decision, concluded that the principle of non-refoulement attained ius cogens status and “the only means to adhere to the peremptory norm of non-refoulement was to suspend Article 93(7) of the Statute temporarily and not apply it.” 40 It seems that the TCH II accepted that the addressee of non-refoulement is the Court itself – here with respect to Article 93(7) of the ICC Statute. Finally, in its decision issued in 2014, the ACH concluded that the aforementioned provision can be implemented in conformity with human rights (without explicit reference to non-refoulement) and ordered immediate release of detained witnesses, with the Registrar’s obligation to provide the Netherlands with the opportunity to take adequate steps in respect of pending asylum requests. At first sight, ICC’s case-law on non-refoulement is not entirely consistent. The TCH II excluded its application in relation to Article 68, but confirmed it in respect of Article 93 of the Statute. Does this mean that various provisions of the Rome Statute are subject to different human rights standards? And who is the addressee of non-refoulement obligations? It is obvious that positive obligations arising out of this principle, whatever their precise scope is, are not transferable to international organizations as they presuppose the existence of states with their territory. 41 It might be tempting to say that the ICC is bound at least by a negative obligation, but it is not the case either. Closer examination reveals that any transport of a person in custody from the premises of the Court to the point of departure from the host State 38 Supra note 23, § 64. 39 Ibid , § 73. The Chamber ruled that by immediate return it would constrain the Netherlands to violate the witnesses’ rights to invoke the non - refoulement principle. The addressee of the norm is nevertheless the Netherlands, not the ICC itself. 40 The Prosecutor v. Katanga . ICC-01/04-01/07-3405-tENG. Decision on the application for the interim release of detained Witnesses DRC- D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350. TCH II, 1 October 2013, § 30. 41 WOUTERS, Kees. International Legal Standards for the Protection from Refoulement . Antwerpen: Intersentia, 2009, pp. 324-327.

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