CYIL 2014

HUMAN RIGHTS BEFORE THE INTERNATIONAL CRIMINAL COURT Article 9 of the Draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts adopted by the International Law Commission (ILC) in 2011(DARIO) and the principle of due diligence. The term ‘concerted action’ was used for the first time in the Lubanga case by the PTCH I in 2006. 53 In explanation of this concept, the PTCH I referred to the case-law of the ECHR ( Stocké v. Germany ) and the ICTR ( Semanza , Rwamakuba , Barayagwitza ). In this author’s opinion, concerted action constitutes a specific rule of attribution of the (wrongful) conduct to the ICC – it deals with the mutual relation between different entities (here the ICC and a state). 54 It presupposes ex ante participation of the ICC (typically the Prosecutor) on the conduct of a state. This approach might be criticized because it does not take into consideration possible ex post attribution anticipated in Article 9 of the DARIO (acknowledgement and adoption of the conduct as its own). One may ask, whether the potential benefit of the accused’s presence before the ICC, obtained e.g. by a violation of human rights by a state – and solely by a state, may amount to acknowledgement and adoption, regulated in Article 9 of the DARIO, and may therefore be attributed to the ICC. It is possible to refer to the Eichmann abduction from Argentina, which is used by the ILC in the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), as an analogous example. 55 In this situation Israel benefited from the capture of Eichmann, which was allegedly undertaken by private individuals. What if the ICC would be in the same position as Israel? What if the accused had been apprehended in a violation of human rights which would not have been the result of concerted action between the ICC and a state or private individuals? Would the benefit of the accused’s presence before the ICC amount to ex post attribution? The nearest precedent is represented by the Nikolić case decided before the ICTY. The accused, Dragan Nikolić, had been abducted by unknown individuals and later handed over to SFOR. 56 Finally, he was transferred to the ICTY, which simply made a profit from his presence in The Hague. Of course, in the light of the accused’s abduction, the defence challenged the exercise of jurisdiction by the Tribunal. Among other things, the ICTY considered “whether the fact that SFOR and the Prosecution became the mere passive beneficiary of fortuitous (even irregular) rendition to Bosnia could amount to “adoption” and “acknowledgement” of the illegal conduct as their 53 The Prosecutor v. Lubanga . ICC-01/04-01/06-552. Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute. PTCH I, 3 October 2006. Later this decision was confirmed by the ACH as follows: “nothing reveals an error in this finding which cannot but be sustained.” Compare The Prosecutor v. Lubanga , supra note 16, § 42. 54 From this perspective, the case Stocké v. Germany does not seem to be entirely persuasive authority for establishment of this test. In the part referred to, the ECHR speaks about the seriousness of the conduct, rather than the relation between various entities. 55 Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 53, § 5. As was revealed later, Eichmann had been abducted from Argentina by Mosad, de iure organ of Israel. An internationally wrongful act was therefore attributable to Israel from its very beginning, not only ex post . 56 The Prosecutor v. Nikolić . IT-94-2-PT. Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal. TCH II, 9 October 2000, § 15.

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