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‘INTERNATIONALLY RECOGNIZED HUMAN RIGHTS’ BEFORE THE INTERNATIONAL CRIMINAL COURT

Published online by Cambridge University Press:  27 January 2011

Rebecca Young
Rebecca Young
Affiliation:
Associate Legal Adviser, Presidency, International Criminal Court.
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Extract

Article 21(3) of the Rome Statute of the International Criminal Court (Rome Statute)1 provides that the International Criminal Court must consider ‘internationally recognized human rights’ in its interpretation and application of applicable law. This article highlights the difficulty of meaningfully interpreting this reference to ‘internationally recognized human rights’ in accordance with the ordinary rules of treaty interpretation. These interpretative difficulties lead the article to adopt a practical focus, examining the initial jurisprudence of the Court utilizing this aspect of article 21(3), concluding that although such jurisprudence reveals a number of shortcomings, the provision's tremendous potential as a tool of evolution and innovation is evident.

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Shorter Articles
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International & Comparative Law Quarterly , Volume 60 , Issue 1 , January 2011 , pp. 189 - 208
Copyright
Copyright © 2011 British Institute of International and Comparative Law

I. INTRODUCTION

Article 21(3) of the Rome Statute of the International Criminal Court (Rome Statute)Footnote 1 provides that the International Criminal Court must consider ‘internationally recognized human rights’ in its interpretation and application of applicable law. This article highlights the difficulty of meaningfully interpreting this reference to ‘internationally recognized human rights’ in accordance with the ordinary rules of treaty interpretation. These interpretative difficulties lead the article to adopt a practical focus, examining the initial jurisprudence of the Court utilizing this aspect of article 21(3), concluding that although such jurisprudence reveals a number of shortcomings, the provision's tremendous potential as a tool of evolution and innovation is evident.

Article 21(3) of the Rome Statute forms part of the provision identifying the applicable law for the purpose of the Court. It provides that the application and interpretation of the applicable law must be consistent with internationally recognized human rights. As the Court enters its sixth year as an operational Court with judicial activity, it is appropriate to begin an initial assessment of the practical impact of the innovations contained within the Rome Statute. However, as will be discussed below, the Court's initial jurisprudence is yet to reflect a consistent understanding of this provision.

This article first explains the relationship of article 21(3) to the broader provision on applicable law, and outlines the understandings of article 21(3) which have been expressed in the literature. It then attempts to interpret article 21(3) in accordance with the procedure for treaty interpretation outlined in articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT),Footnote 2 a process which reveals that the meaning of ‘internationally recognized human rights’ within article 21(3) cannot be easily discerned by reference to such conventional approaches to treaty interpretation. This exploration leads to the conclusion that although the precise meaning of the phrase remains elusive, article 21(3) is best characterized as a special rule of interpretation designed to underlie the Rome Statute, providing for potentially extensive and flexible recourse to evolving norms and principles of human rights which are widely accepted within the international community. This article then considers the extent to which the initial jurisprudence of the Court is consistent with this understanding, elucidating the Court's conceptualization, methodology and use of article 21(3).

II. ARTICLE 21

A. Applicable Law

Article 21 sets out the applicable law for the Rome Statute. It consists of three paragraphs. The first sets out the sources of applicable law in the form of a three-tiered hierarchy consisting of the texts of the Court, followed by applicable treaties and rules of international law, followed by general principles of law derived from national legal systems of the world. The second paragraph of article 21 permits the Court to use its discretion to rely upon its previous decisions. This article is concerned with the third paragraph which provides that:

The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

Although both paragraphs 1 and 3 instruct the Court to understand applicable law by reference to extraneous areas of international law, this article is concerned only with article 21(3). Article 21(3) focuses on human rights law and thus reflects support for the emerging view that the nature of human rights is such that they may have a certain special status or, at minimum, a permeating role within international law.Footnote 3 The existence of article 21(3) in the Rome Statute is also of particular interest, juxtaposing, as it does the related fields of international human rights law and international criminal law. Both modern international human rights law and international criminal law are characterized by their focus on the individual as the actor, a hitherto unknown concept in an international legal environment once focused primarily on the State. Particularly in respect of crimes against humanity, both fields trace their modern development to the aftermath of the Second World War, in particular to the Nuremberg trials and the not unrelated developments of the Genocide Convention and the Universal Declaration of Human Rights (UDHR). International humanitarian law, a significant component of modern international criminal law—although having older foundations in the ius in bello and originally concerned with relations between States rather than individuals—similarly took its modern form during the post Second World War period, in particular the Geneva Conventions.Footnote 4 International human rights law and international humanitarian law are considered to provide normative content to international criminal law; noted too is the practical impact of lawyers with expertise in the two former fields during the ‘explosion’ of international criminal law from the mid-1990s.Footnote 5 Article 21(3), in expressly drawing these interlinked fields together, respects this historical congruence. Moreover, it is also in keeping with further connections between international human rights law and international criminal law arising from the Rome Statute, such as the emphasis on victims' participation, which gives the ‘victim’, once a subject of international human rights law of little interest to international criminal law, a central role in proceedings.Footnote 6 Moreover, as will be explored in Part III, article 21(3) further warrants close attention in that, unlike 21(1), it is concerned with interpretation and is thus a method of recourse to extraneous international law, which is more complex than simple inclusion as substantive applicable law.

B. Perspectives on Article 21(3)

Many commentators have written positively about article 21(3), describing its potential utility in addressing the mistrust of judges that is sometimes reflected in the Rome Statute.Footnote 7 McAuliffe de Guzman echoes Arsanjani's view that although the original intention behind article 21(3) was to limit the discretion of the Court by providing a ‘boundary’ within which interpretation and application of the law could be undertaken, its actual effect may be to broaden judicial competence.Footnote 8 He suggests that ‘[a]t least in theory, therefore, this paragraph is one of the more important provisions of the Rome Statute’.Footnote 9 William Schabas, with similar optimism, describes article 21(3) as ensuring that ‘the Statute is full of promise for innovative interpretation in future years’.Footnote 10 At the time of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court (Diplomatic Conference), Kenneth Gallant, a member of the International Criminal Bar who has been highly active throughout the drafting of the Rome Statute and in ongoing developments related to the Court, described article 21(3) as possibly the most important advance contained within the draft Statute.Footnote 11 In contrast, Alain Pellet has suggested that article 21(3) ‘should have little concrete impact on the implementation of the applicable law’.Footnote 12 Very few commentators, however, have offered more detailed characterizations of article 21(3). Alain Pellet regards article 21(3) as a form of ‘super-hierarchy’ within the structure of article 21.Footnote 13 Dapo Akande similarly regards article 21(3) as hierarchical, suggesting that ‘[t]he ordinary meaning of the text is that the law referred to in Art. 21 cannot be applied where inconsistent with human rights norms’.Footnote 14 Per Saland, who headed the working group on applicable law at the Diplomatic Conference, describes article 21(3) as a rule of general consistency.Footnote 15 Adriaan Bos sets a high standard for the Court's use of article 21(3) in his understanding that ‘[i]n so far as human rights instruments are universally recognized as part of international customary law, the ICC must respect them in its proceedings’.Footnote 16 In his most recent volume on the Court, William Schabas suggests that ‘[a]rticle 21(3) does not, strictly speaking, provide a new source. Rather, it makes all of the applicable law in article 21(3) subject to ‘internationally recognized human rights'’.Footnote 17 Some openly espouse article 21(3)'s tremendous potential role for the Court, while others regard it as more limited. Such divergence demonstrates the need for the further analysis which this article seeks to provide. An appropriate starting point is the process of interpretation established in articles 31 and 32 of the VCLT.Footnote 18

III. INTERPRETATION OF ARTICLE 21(3)

A. Article 31 of the Vienna Convention on the Law of Treaties

1. Article 31(1) VCLT

Article 31(1) of the VCLT provides that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The most significant aspect of article 21(3) is evident from its structure, when viewed in the context of article 21 as a whole. Article 21(3) differs in structure from paragraphs 1 and 2 of article 21. The purpose of paragraphs (1) and (2) is to identify specific sources of applicable law for the Court. They do so by commencing with the language: ‘the Court shall apply…’ and ‘the Court may apply’, (emphasis added) respectively. Article 21(3) does not follow this same linguistic structure. Unlike paragraphs 1 and 2, it is not clearly setting out a statement of the sources of law to be applied. It does not present the Court as subject, but uses the passive voice in a manner which, on plain reading, could be understood as overarching. This different format of article 21(3) could indicate that, unlike paragraphs 1 and 2, article 21(3) is not setting out an independent source of substantive applicable law for the Court, but establishing a more general rule which must govern both the interpretation and application of the sources of law expressly identified in paragraphs 1 and 2. In this manner, article 21(3) constitutes an overriding general rule of interpretation, rather than a source of substantive applicable law. Such understanding would appear to be consistent with the views of many of the commentators described above, such as Pellet, Schabas and Akande. Part IV below will later examine whether this conclusion is similarly borne out by the practice of the Court itself.

The aspect of article 21(3) to which it is most difficult to ascribe an ordinary meaning is the phrase ‘internationally recognized human rights’. The only other part of the Rome Statute which uses this phrase is article 69(7).Footnote 19 It appears implicit in the use of the phrase in both articles 21(3) and 69(7) that the drafters of the Statute considered that ‘internationally recognized human rights’ are readily capable of identification. The phrase can be usefully contrasted with similar language used elsewhere in the Statute. Article 21(1)(c) uses the phrase ‘international law and internationally recognized norms and standards’ which would indicate that the phrase ‘internationally recognized’ means something different from simply ‘international’—‘internationally recognized’ naturally denotes a certain level of broad acknowledgement and acceptance of the human rights in question. Another phrase which appears in the Statute but is not used in article 21(3) is ‘the law of international human rights’.Footnote 20 The absence of this more formal language from article 21(3) indicates that ‘internationally recognized human rights’ may not refer to a rigid or formal body or source of law. A flexible and broad understanding of this phrase is also necessitated by the fact that although the Statute enumerates a number of specific human rights, the phrase ‘human rights’ appears no where other than in articles 21(3), 36(3) and 69(7). Fair trial rights, for example, are simply referred to as rights.Footnote 21 Such deliberate use of different language indicates that ‘internationally recognized human rights’ is not intended to only be synonymous with fair trial rights. Thus, the text of article 21(3), when read in the broader context of the Statute itself, provides only very general guidance as to the meaning of this obscure phrase: that it denotes a degree of international acceptance of the right in question and that it does not refer narrowly to rights derived from any particular source of international law or to any specific example of human rights.

The ascertainment of the ordinary meaning of article 21(3) according to the mechanism of article 31 of the VCLT must also occur in light of the object and purpose of the treaty.Footnote 22 The preamble and general tenor of the Rome Statute make it clear that the purpose of the Statute is to bring an end to impunity in a manner which guarantees lasting respect for and enforcement of international justice. That the achievement of this purpose requires institutionalized human rights protections is evidenced by the many provisions throughout the Rome Statute which are designed to ensure the fairness of the Court's proceedings.Footnote 23 The Court has a clear interest in safeguarding the fairness of its proceedings,Footnote 24 thus supporting the notion that ‘internationally recognized human rights’ entails a potentially broad scope of human rights protections.

2. The Meaning of ‘Internationally Recognized Human Rights’ in International Treaty Law

It may be possible to gain further insight into this obscure phrase by reference to its use in international treaty law more generally.Footnote 25 Apart from the Rome Statute, however, the term only appears in the United Nations Treaty Series twice,Footnote 26 on both occasions being undefined and used in a fairly general manner. The only treaty where a meaning is clearly ascribed to the phrase is in annex 6 to the Dayton Peace Accords,Footnote 27 where it is listed as non-exhaustively encompassing 14 specific human rights. Given the very small number of parties to this treaty, the Dayton Peace Accords could not be reasonably regarded as encompassing any widely accepted ordinary meaning of ‘internationally recognized human rights’ in treaty law. Accordingly, no further insight into the meaning of ‘internationally recognized human rights’ is hereby achieved.

3. Article 31(3)(c)

Finally, article 31(3)(c) of the VCLT,Footnote 28 a provision in relation to which there has been a resurgence of judicialFootnote 29 and academic interest,Footnote 30 provides no further insight into the meaning to be given to ‘internationally recognized human rights’. In addition to the above paucity of reference to the phrase in international treaties, other sources of international law do not offer further elucidation. The only purported definition of the term occurred during the drafting of the Human Rights Principles and Responsibilities for Transnational Corporation and Other Business Enterprises.Footnote 31 This definition was fairly narrow in that it referred only to formal sources of law as embodied by international instruments adopted through the United Nations system.Footnote 32 This understanding of ‘internationally recognized human rights’ cannot be regarded as authoritative. The draft principles in question included this a definition of ‘internationally recognized human rights’ in its definition section, even though the phrase itself did not actually occur in the substance of the document. Moreover, in the final draft, the phrase was replaced by ‘human rights’.Footnote 33

Similarly, no clarity as to the meaning of ‘internationally recognized human rights’ emerges from the use of the term in international judicial or quasi-judicial contexts. The Human Rights Committee and the Committee for the Elimination of All Forms of Racial Discrimination have used the term only rarely and very generally.Footnote 34 The term has, however, been used more frequently by the International Criminal Tribunal for the Former Yugoslavia (ICTY). In 1995, the ICTY first found that its interpretation of its own texts must be undertaken ‘in full conformity with internationally recognized human rights instruments’.Footnote 35 The ICTY has recognized more generally that certain aspects of human rights law have ‘become of such paramount importance as to permeate the whole body of international law’.Footnote 36 Nonetheless, the ICTY does not offer a settled meaning of the phrase ‘internationally recognized human rights’. Many of the ICTY cases do not use that exact phrase, but a slight variation of it, most often ‘internationally recognized human rights instruments’; a variant which provides increased elucidation of the form of extraneous law to which reference is to be had. In addition, the ICTY jurisprudence does not provide a clear definition of ‘internationally recognized human rights’, but, at most, simply re-iterates their importance and provides examples of such rights. Thus, the jurisprudence of the ICTY adds little to the meaning of ‘internationally recognized human rights’ as a term in international law.Footnote 37 Accordingly, looking more broadly to extrinsic context as permitted by article 31(3)(c) does not further inform an understanding of this aspect of article 21(3).

B. Article 32 of the Vienna Convention on the Law of Treaties

1. Permissibility and utility of recourse to supplementary means of interpretation

Article 31 of the VCLT works in conjunction with article 32, which provides for recourse to supplementary means of interpretation in specific circumstances, such as ambiguity. There are, however, risks inherent to recourse to travaux préparatoires, such as the unlikelihood of their resolution of deliberate ambiguity,Footnote 38 the inevitable existence of gaps in the recording of treaty negotiations,Footnote 39 the potential for incomplete and misleading preparatory works which are less authentic than the text of the treatyFootnote 40 and the difficulty of inferring meaning from preparatory works.Footnote 41 It is certainly true that much of the significant development during the Diplomatic Conference occurred in informal and unrecorded negotiations.Footnote 42 In addition to these general concerns, there may be further difficulties deriving from the status of the Rome Statute as a consensus-based treaty.Footnote 43 Philip Allott has expressed the view that the preparatory materials of consensus-based international treaties cannot properly be regarded as travaux préparatoires because their often disorderly and organic character means that they do not constitute an actual material chain of causation to the final instrument.Footnote 44 The travaux préparatoires of the Rome Statute consist of a massive array of documents from a variety of sources which do not create a clear chain of causation towards the final Rome Statute. However, to regard only those documents which constitute a ‘material chain of causation to the final instrument’ as travaux préparatoires appears inconsistent with acknowledgement of the often inherently ambiguous and uncertain nature of travaux, creating unrealistic expectations of a clear and precise record. With appropriate awareness of the potential shortcomings of extensive reliance on preparatory works, the supplementary means of interpretation will be assessed to ascertain whether they provide any insight into the meaning of ‘internationally recognized human rights’ in article 21(3).

2. The travaux préparatoires of article 21 the Rome Statute

The phrase ‘internationally recognized human rights’ first appeared in the alternative Siracusa draft statute prepared by a committee of experts in 1995, however, it appeared only in the provision related to evidence (i.e. the predecessor of article 69(7)), not in relation to applicable law.Footnote 45 The commentary to this provision explained that the phrase ‘internationally recognized human rights’ referred to ‘the rights enumerated in widely ratified International Treaties, such as the Torture Conventions’.Footnote 46 Whilst such explanation is informative in the context of article 69(7), its limited focus cannot be logically transposed to article 21(3). Even though there was not yet a reference to human rights in the applicable law provision, there was ongoing discussion related to the importance of human rights protections in the Statute.Footnote 47

Prior to the meeting of the Preparatory Committee in March–April 1998, Human Rights Watch released a discussion paper distributed to all members of the Committee which recommended that the Statute ‘[i]nclude a provision making explicit that, in the application of the Statute and Rules, and in the functions mandated to it, the Court will operate at all times in a manner consistent with international human rights law, including the prohibition on adverse discrimination’.Footnote 48 Although it is beyond the scope of this article to assess whether such discussion paper should be formally considered part of the travaux, this paper is interesting because its formulation closely resonates with the eventual content of article 21(3), although the pivotal terminology has been altered. During the Preparatory Committee's March-April 1998 session, a version of article 21(3) substantially similar to its final form first appeared in the draft Statute. The article was transmitted in this same form by the Preparatory Committee to the Diplomatic Conference for consideration.Footnote 49

At the Diplomatic Conference, this particular aspect of article 21(3) led to little discussion. Those discussions which did relate to article 21(3) were predominantly supportive.Footnote 50 The United Nations High Commissioner for Human Rights offered strongly worded support for the provisionFootnote 51 and expressed a belief that it was largely fair trial rights that were encompassed by ‘internationally recognized human rights’Footnote 52 Per Saland expressed the working group's view that article 21(3) functions as a consensus text which requires that ‘the law applied should be consistent with certain internationally recognized human values’.Footnote 53 The only proposed amendment to article 21(3) came from the Iranian representative who suggested that due to differing conceptions of human rights in different legal systems ‘it might be better to speak of human rights instruments recognized by the international community or recognized by the main legal systems’.Footnote 54 No action appears to have been taken in response to this suggestion, perhaps indicating that States believed that article 21(3) already required that the human rights being referred to enjoy broad and geographically inclusive support.

In sum, the travaux préparatoires do not shed significant light on the phrase in question within article 21(3). They indicate that the mandating of consistency with internationally recognized human rights in interpreting and applying the law was not the subject of discussion, even though the High Commissioner for Human Rights drew attention to this aspect of the provision. This may indicate that the central function of article 21(3) was not considered problematic. The types of human rights discussed throughout the preparatory process overwhelmingly included fair trial rights. Yet, the most that might be drawn from this is that these types of rights are a form of non-exhaustive guidance as to potential examples of relevant ‘internationally recognized human rights’.

3. Conclusions on the Interpretation of article 21(3)

The VCLT's interpretative rules reveal that article 21(3) does not function as a source of applicable law itself, being structurally distinct from paragraphs 1 and 2 of article 21, which clearly establish sources of applicable law, but instead provides a mandatory rule which affects the identification and use of all sources of law under the Statute. The specific phrase ‘internationally recognized human rights’, however, remains ambiguous and relatively unknown to international law. When read in its context, it appears that it is not intended to denote ‘human rights law’ in any formalistic sense. It indicates that the human right in question, whatever its source, must benefit from a degree of broad support. The inclusion of such an open-ended formulation also appears consistent with an intention that ‘internationally recognized human rights’ be flexibly regarded. Finally, the travaux préparatoires indicate that some examples of internationally recognized human rights include fair trial rights and those embodied in international human rights instruments.

In focusing on the lack of elucidation of ‘internationally recognized human rights’ to be garnered from the above interpretative process, this article does not address the broader issue of what the phrase might mean. Such a phrase could denote reference to a wide variety of sources of law, including customary international law, (for example, as reflected in certain provisions of the UDHR) widely ratified treaty law, such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and even regional human rights instruments such as the European Convention on Human Rights (ECHR). The broad notion of ‘human rights’ could encompass both ‘soft law’ and more traditional sources of law. It could potentially entail reference to jurisprudence of international courts, tribunals and quasi-judicial bodies and even to the law of national legal systems. Moreover, the phrase's general approach to sources of law which it is intended to encompass is further obscured by the fact that the sources of law and their ‘hierarchy’, as set out in article 21, differ from those more traditionally regarded as the sources of international law as set out in article 38 of the Statute of the International Court of Justice. The question of the ‘sources’ of such human rights law is merely another way of asking ‘how’ and ‘by whom’, internationally recognized human rights are so recognized. It is further feasible that the scope of this phrase could be limited to those rights which are most substantively relevant to the work of the Court, such as fair trial rights or rights related to the deprivation of liberty. Rather than speculating on such matters, this article will proceed by analysing the fledgling practice of the Court itself on these significant questions: how has the International Criminal Court itself understood and utilized article 21(3) in its jurisprudence to date?

C. Article 21(3) before the International Criminal Court

This section analyses the Court's jurisprudence, focusing on areas of divergence between the approaches of different chambers of the Court, which may be viewed as indicative of a lack of clear understanding of article 21(3). It will identify the extent to which the Court's understanding of the provision is consistent with the understanding presented in Part III above, as well as assessing some of the practical challenges which exist for the Court as it attempts to apply article 21(3). The focus is on three aspects of the Court's article 21(3) jurisprudence: its conceptualization of the provision, the techniques through which it has been utilized and the origins and nature of the human rights being used by the Court.

1. Conceptualization

The Court appears to regard article 21(3) as a general mechanism which works in conjunction with, and thereby expands, those human rights protections which are specifically enumerated in the Statute.Footnote 55 Thus, jurisprudence to date predictably indicates that the area within which article 21(3) is of most practical interest to the Court is fair trial rights.Footnote 56 For example, the Appeals Chamber has noted that the Statute ‘must be interpreted and more importantly applied in accordance with internationally recognized human rights; first and foremost, in the context of the Statute, the right to a fair trial’.Footnote 57

Where there is less conceptual clarity is in relation to the Court's understanding of the relationship between article 21(3) and the applicable law as set out in paragraphs 1 and 2 of article 21. The majority of the Court's jurisprudence correctly reflects the significant distinction between regarding article 21(3) as a general interpretative rule and regarding it as a source of substantive law. For example, the Appeals Chamber has communicated its view that article 21(3) is an underlying rule of interpretation to be applied when considering all other forms of law under the Statute in determining that ‘article 21(3) of the Statute makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognized human rights’.Footnote 58 The Appeals Chamber has also put the underlying nature of the relationship of human rights to the Statute in a different way: ‘[h]uman rights underpin the Statute; every aspect of it’.Footnote 59 The Pre-Trial Chambers also commonly describe article 21(3) as being a general principle of interpretation.Footnote 60

On some occasions, however, chambers have taken decisions which do not reflect such an understanding of article 21(3) as a rule of interpretation. A number of decisions of Pre-Trial Chamber I have instead treated article 21(3) as a ‘gap-filling’ mechanism. The chamber has indicated that the role of article 21(3) is to step in when there is a lacuna in the Statute or Rules.Footnote 61 This understanding involves a hierarchical conception in which the Statute and Rules are superior, followed by internationally recognized human rights, followed by the other sources of applicable law outlined in article 21. Such a conception fails to understand article 21(3) as a rule which works in conjunction with the applicable law outlined in paragraphs 1 and 2, not in the absence of it. It also appears to treat article 21(3) as akin to a substantive source of applicable law.

A conceptualization that is in some ways diametrically opposed to the gap-filling approach, but is equally erroneous, is that utilized by Pre-Trial Chamber I in its witness proofing decision.Footnote 62 The Court found that article 21(3) had no role to play in the circumstances because the notion of witness ‘proofing’ did not exist under any of the sources of applicable law contained in article 21.Footnote 63 This fails to recognize that the process of determining that there is no applicable law under article 21(1) is itself a process of interpretation of the law, which therefore must be informed by article 21(3). The approach subverts the language of article 21(3) by rendering it relevant only when law has been identified and is then being applied by the Court, and not to the process of identifying whether there is any applicable law (ie interpretation). Thus, despite early and clear guidance from the Appeals Chamber that article 21(3) is properly understood as an overriding rule of interpretation, relevant to both the interpretation and application of all other applicable law, the chambers of the Court have not consistently treated it as such.

2. Techniques

Amongst those decisions which correctly regard recourse to article 21(3) as part of the interpretative process, a number of different methods of utilization are evident. In some decisions, the process of analysing the impact, if any, of internationally recognized human rights, is incorporated as an additional step of the process of interpreting the relevant provisions as set out in articles 31 and 32 of the VCLT.Footnote 64 For example, a single judge of the Pre-Trial Chamber has described her task as such: ‘in interpreting the contours of such a statutory framework, the single judge must take into account: i. the general principle of interpretation set out in article 21(3) of the Statute … and ii. the general principles of interpretation set out in article 31(1) of the Vienna Convention on the Law of Treaties…’.Footnote 65 A similar but distinct technique is that of reaching a textual interpretation according to the usual VCLT process and then looking to internationally recognized human rights in order to confirm this understanding.Footnote 66 Although the latter technique might potentially give rise to more practical difficulties than the former (in particular if reference to internationally recognized human rights does not easily confirm the interpretation already reached by the Court) both techniques effectively utilize the same process. In both, article 21(3) is regarded as part of the process of interpreting any provision of the Statute.

3. 3. Nature and origins

This final section will consider the more practical issue of identifying the internationally recognized human rights which the Court utilizes in its decisions and, in particular, identifying the source of these rights. Essentially, this part examines the content of the extraneous law which functions as overriding interpretative guidance for the Rome Statute by virtue of article 21(3). The Court has fairly consistently looked to human rights norms and their related jurisprudence from a geographically broad spectrum, which commonly includes reference to the global UDHR, the ICCPR, and the Convention on the Rights of the Child (CRC), and the regional ECHR and the Inter-American Convention on Human Rights (IACHR).Footnote 67 For example, in a Presidency decision concerning the right to funded family visits, the Presidency relied on the UDHR, the ICCPR, the IACHR, the African Charter on Human and Peoples Rights, the African Charter on the Rights and Welfare of the Child and the Arab Charter on Human Rights.Footnote 68 Perhaps in response to this frequent practice of respect for human rights norms from across the geographical spectrum, there has been a push by Judge Pikis, when acting as presiding judge of the Appeals Chamber, to understand internationally recognized human rights to refer to ‘universally recognized human rights’.Footnote 69 Such an approach seems inappropriate given that the ordinary language of article 21(3) does not demand as high a threshold as universality.

Nonetheless, despite this generally positive trend towards geographically inclusive understandings, there may be cause for concern that in some cases the Court has focused too closely on human rights as understood by a single human rights system, most commonly the European.Footnote 70 For example, the defence has argued that a decision of the Pre-Trial Chamber, inter alia, focused too exclusively on European understandings of human rights which did not exist, for example, in Africa.Footnote 71 Although one of the most frequently claimed human rights before the African Commission on Human and Peoples' Rights is the right to a fair trial,Footnote 72 the Court has rarely, if ever, referred to a case from the Commission. The underlying reasons for this are obvious—the European human rights jurisprudence is the most developed, the most discussed in secondary source material and the most readily available in the two working languages of the Court. Given such temptation, it is necessary that the Court ensures that where it does focus on the human rights jurisprudence of a single regional system that such focus is properly justified as reflecting that the jurisprudence most relevant and useful in the particular case. It is particularly important to guard against a common presumption in human rights law that European law is automatically readily transferable to other contexts, whereas African human rights law is assumed to be more backwards.Footnote 73

The above criticism must be made with awareness of the reality that human rights courts engage in considerable trans-judicial horizontal communication, thus a judgment of the European Court of Human Rights could itself be regarded as framed by a ‘universal process of judicial deliberation and decision’.Footnote 74 Moreover, some human rights courts tend to coordinate their approaches, particularly in terms of general understandings about the nature of human rights treaties.Footnote 75 Nonetheless, although reference to European human rights jurisprudence may not necessarily be as Eurocentric as first appears,Footnote 76 converging case law within regional systems in relation to general principles of interpretation of human rights treaties cannot be equated to the emergence of completely consistent human rights law across all regional systems. In addition, increasing congruence between the ECHR and IACHR regimes does not address the claim that the African regime, which does not yet have a fully functional court, is being overlooked.Footnote 77 The importance of the Court remaining careful to consider human rights from a range of regional human rights systems cannot be overstated. A failure to do so could potentially contribute to an undermining of the universality of human rights,Footnote 78 an outcome which could subject the Court to the criticism that it is not an appropriate body to interpret and apply human rights norms in the first place. This would undermine moves towards links across different areas of law, and challenge the granting of judicial discretion through broad powers to refer to extraneous law.

In addition to offering insight on the origins of the human rights law being applied by the Court, the Court's initial jurisprudence also offers insight into the nature of this law. The Court has referred not only to legal rules having obligatory force but also to more general principles of human rights law. For example, the Court has used the notion from European human rights law that rights should be interpreted in a practical and effective, rather than theoretical and illusory, manner.Footnote 79 Such practice is consistent with the views expressed above that the ordinary meaning of article 21(3) does not demand an unduly formal understanding. Similarly, the broad and flexible nature of article 21(3) is reflected in the Court's willingness to consider so-called soft law in its understanding of internationally recognized human rights.Footnote 80 The Court has looked to sources such as Economic and Social Council Commission on Human Rights reports, the Standard Minimum Rules on Treatment of Prisoners, the Body of Principles on Prisoners, the European Prison Rules, the conclusions and recommendations of the Committee Against Torture, the Standards of the European Committee for the Prevention of Torture, recommendations of the European Human Rights Commissioner and the UN Human Rights Committee, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The approach taken by the Court as to what constitutes internationally recognized human rights is not rigid and is not restricted to human rights norms as embodied in traditional sources of law such as treaty, custom and general principles. Where the ‘law’ being relied upon by the Court is not formally binding, however, or is of uncertain legal status, caution is necessary to ensure that the Court does not apply such law in a manner contrary to the consensual nature of international law.Footnote 81 The risk of this occurring, however, is mitigated by article 21(3) itself, given that it already demands that the human rights being referred to are widely recognized and that it functions only as a rule of interpretation, rather than a source of substantive applicable law. In sum, although there is a need to remain vigilant to ensure that appropriate caution is exercised in ensuring equal respect for human rights law from different regional systems, the Court has generally acted consistently in relation to the nature and origins of human rights it has relied upon. It has demonstrated a broad understanding of both the level of formality required of the sources of this law, as well as a preference for law that exists across a broad geographical spread. Both tendencies bear out the conclusions drawn above that ‘internationally recognized human rights’ is a flexible notion, but one that still encompasses a certain degree of respect and acknowledgement.

4. The future of article 21(3)

The use of article 21(3) by the Court has thus far been regular but understated. This is probably partly a result of residual uncertainty as to the scope and nature of the provision. It is also likely caused by the fact that many of the human rights protections that have been relevant to the Court's jurisprudence to date, such as fair trial protections and rules relating to victim participation, are expressly enumerated in the Statute. Accordingly, it is rare that the operation of article 21(3) has proven decisive. The potential for article 21(3) to play a more significant role will inevitably arise, and it arguably has its greatest potential significance when matters arise that are not expressly addressed by the Rome Statute.

One such demonstration of the potential importance of article 21(3) is the Presidency's decision in the application by Mr Mathieu Ngudjolo Chui, related to visits from his family members.Footnote 82 This application involved consideration of whether the Court is required to provide funding for family visits by the family of persons detained by the Court. The texts of the Court are silent on this matter. The decision of the Presidency hinges on the view that article 21(3) mandates that the Court understand the right to receive visits in a manner which renders that right practical and effective.Footnote 83 In this manner, the Presidency determined that the Court is under a limited obligation to provide funding for family visits. This example demonstrates that where the sources of applicable law are ambiguous, which is less likely to occur in relation to very central human rights protections, there is potential for article 21(3) to play a significant role. This decision is also an example which typifies the potential breadth of article 21(3), since it refers extensively to law from all geographical regions and relies on a range of soft law and legal policy documents. Thus, despite the fact that the Court's jurisprudence on article 21(3) has not yet had an extensive effect, this Presidency decision brings to mind the views of Gallant and Schabas that article 21(3) has great potential as a tool of evolution and innovation. At the same time, the risks of judicial innovation through reference to extraneous law must be acknowledged. According to French, ‘[t]his process, however, is most controversial when the rules and principles relied upon are not widely endorsed. International tribunals must, therefore, tread carefully to ensure they remain within the accepted parameters of the adjudicative mould’.Footnote 84

IV. CONCLUSION

Although the jurisprudence to date makes it difficult to accept the prediction that article 21(3) could be one of the most important provisions of the Rome Statute, its significance to the International Criminal Court remains undeniable. The most important aspect of article 21(3) is its function as a general rule of consistency, a principle of interpretation, rather than as a source of applicable law. In performing this function, article 21(3) is intended to allow for flexible, informal and evolving reference to human rights. An examination of the Court's practice reveals that the provision is usually, but not always, conceptualized correctly as an underlying rule of interpretation. As for the nature of the human rights being relied upon by the Court, a flexible interpretation of ‘internationally recognized human rights’ is being appropriately reflected in the types of human rights norms being relied upon by the Court, and the sources of such law. In relation to the origin of the human rights being considered, while there is a generally positive trend towards considering a geographically inclusive spectrum of human rights practice, there must be vigilance against the appearance of bias in favour of more well-known systems of human rights.

It is in relation to geographical breadth and in understanding article 21(3) as a rule of interpretation that improved consistency and clarity is most required from the Court. Although the vast majority of the Court's jurisprudence reflects accurate understanding and utilization of article 21(3), there is a need for the Court to act with particular prudence. An ongoing failure appropriately to consider human rights law from a range of legal systems, in particular Africa (as African situations continue to constitute the Court's entire caseload) could fuel the growing critique of the Court as a biased pro-Western institution.Footnote 85 An ongoing failure by any chamber of the Court to understand article 21(3) as a rule of interpretation could demonstrate the Court to be structurally ill-equipped to deal with the emergence of divergent interpretations of the law within its different chambers. More broadly, there is the risk that if the Court is perceived as unable appropriately to apply and utilize article 21(3), the capacity of international judges to create suitable linkages across different areas of law through the process of interpretation might be questioned.

Moreover, the significance of article 21(3) goes beyond the Court itself. Article 21 offers an example of international judges being empowered to develop jurisdictional boundaries by importing extraneous materials as part of the task of identifying applicable law. Although in article 21(3) this is occurring in a very restrained manner—judges cannot simply ‘apply’ international human rights, but can only apply other sources of applicable law in accordance with it—it still offers a meaningful example of an international court being expressly provided with a mechanism to expand the parameters within which its judicial decision-making can occur. The Court's general success in utilizing article 21(3) thus far is likely aided by structural factors such as the identifiable nature of international human rights law. Unlike the Irish claim in the MOX Plant Case, there is no risk of transforming article 21 into a clause of general jurisdiction.Footnote 86 Moreover, the law of human rights is an area that increasingly permeates other areas of international lawFootnote 87 and thus is eminently suited to function as ‘importable’ extraneous law, particularly given that the nature of international criminal law is that it has always been closely connected to certain other fields of international law. At the heart of article 21(3) is a broader phenomenon; as States expressly empower international adjudicative bodies to understand their applicable law by reference to more than just their constituent treaty, the possibilities of cross-fertilization and integration are increased. Not only are courts talking to one another all over the world,Footnote 88 but international courts are being given the opportunity to talk to each other across different subject matters. The Babel of judicial voices identified by Rosalyn HigginsFootnote 89 is growing and, as a uniquely explicit authorization by States of this phenomenon in the increasingly influential field of human rights, continuing close observation of the use and effect of article 21(3) is imperative.

References

1 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

2 Opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

3 See J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (CUP, Cambridge, 2003) 96; See generally Wessel, RA, ‘The Kadi Case: Towards a More Substantive Hierarchy in International Law’ (2008) 5 International Organizations Law Review 323CrossRefGoogle Scholar, 326; Reisman, MW, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 AJIL 866CrossRefGoogle Scholar, 872; Fry, JD, ‘International Human Rights Law in Investment Arbitration: Evidence of International Law's Unity’ (2007–2008) 18 Duke Journal of Comparative and International Law 77, 123Google Scholar; Shelton, D, ‘Normative Hierarchy in International Law’ (2006) 100 AJIL 291CrossRefGoogle Scholar, 294; Parker, K and Neylon, LB, ‘Jus Cogens: Compelling the Law of Human Rights’ (1988–1989) 12 Hastings International and Comparative Law Review 411Google Scholar.

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7 On such mistrust see Hunt, D, ‘The International Criminal Court: High Hopes, ‘Creative Ambiguity’ and an Unfortunate Mistrust in International Judges’ (2004) 2 Journal of International Criminal Justice 56, 61Google Scholar; Cassese, A, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 EJIL 144CrossRefGoogle Scholar, 163.

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9 McAuliffe deGuzman ibid.

10 WA Schabas, An Introduction to the International Criminal Court (2nd edn, CUP, Cambridge, 2004) 93.

11 On the Record: International Criminal Court, Vol 1, Issue 13 (7 July 1998).

12 A Pellet, ‘Applicable Law’ in Antonio Cassese, P Gaeta and RWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary Volume II (OUP, Oxford, 2002) 1082.

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16 Bos (n 4) 229, 234.

17 WA Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP, Oxford, 2010) 385.

18 The VCLT is widely regarded as customary international law in this respect, See eg Competence of the Assembly regarding admission to the United Nations (Advisory Opinion) [1950] ICJ Rep 4, 8; Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v Chad) [1994] ICJ Rep 6, 21–22; Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) (Qatar v Bahrain) [1995] ICJ Rep 6, 18; Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045, 1059. Moreover, the ICC itself has commonly regarded it as providing the appropriate parameter by which to interpret any provision of the Rome Statute, see eg Situation in the Democratic Republic of the Congo, ‘Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal’, Appeals Chamber, ICC-01/04-168 (13 July 2006), para 33; Prosecutor v Omar Hassan Ahmad Bashir, ‘Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, Pre-Trial Chamber I, ICC-02/05-01/09-3 (4 March 2009), para 44.

19 Art 69(7) provides that ‘[e]vidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings’.

20 Rome Statute, art 36(3)(b)(ii).

21 See Rome Statute, arts 54, 55 and 67.

22 See Situation in the Democratic Republic of the Congo, ‘Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal”’, Appeals Chamber, ICC-01/04-168 (13 July 2006), para 33.

23 Rome Statute, arts 20, 22–24, 54–55, 66–67.

24 Hunt (n 7) 70.

25 Pauwelyn (n 3) 260–262.

26 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Conventions Against Transnational Organized Crime, opened for signature 15 November 2000, UN Doc A/55/383, art 2(b) (entered into force 25 December 2003); Convention (No. 169) concerning indigenous and tribal peoples in independent countries, adopted by the General Conference of the International Labour Organisation at its seventy-sixth session, 27 June 1989, 1650 UNTS 384, arts 8(2), 9(1) (entered into force 5 September 1991).

27 Dayton Peace Accords, Annex 6: Agreement on Human Rights, opened for signature 21 November 1995 (entered into force 14 December 1995).

28 Art 31(3)(c) provides that ‘[t]here shall be taken into account, together with the context … any relevant rules of international law applicable in relations between the parties’.

29 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) [2003] ICJ Rep 161, 182; Bankovic et al v Belgium et al, Application No 52207/99, Grand Chamber Decision as to Admissibility (12 December 2001), para 57; Al-Adsani v the United Kingdom, Application No. 35763/97, Judgment of the Grand Chamber (21 November 2001), para 55.

30 See eg McLachlan, C, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279CrossRefGoogle Scholar; Pauwelyn (n 3).

31 Human Rights Principles and Responsibilities for Transnational Corporations and Other Business Enterprises, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 54th session, provision agenda item 4, (29 May 2002) UN Doc E/CN.4/Sub.2/2002/WG.2/WP.1.

32 ibid, ‘The phrases ‘internationally recognized human rights’ and ‘international human rights’ include civil, cultural, economic, political and social rights, as set forth in the international Bill of Rights and other human rights treaties, as well as the right to development and rights recognized in international humanitarian law, international refugee law, international labour law, and other relevant instruments, adopted within the United Nations system'.

33 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, (55th session) Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (26 August 2003) UN Doc E/CN.4/Sub.2/2003/38/Rev.2.

34 Committee on the Elimination of All Forms of Racial Discrimination, Concluding Comments to Azerbaijan, (25 August 1999) UN Doc A/54/18; Human Rights Committee, Concluding Comments to Colombia (9 April 1992); UN Doc CCPR/C/79/Add.2 Human Rights Committee, Concluding Comments to Croatia (30 April 2001) UN Doc CCPR/CO/71/HRV; Human Rights Committee, Concluding Comments to the Czech Republic, (27 August 2001) UN Doc CCPR/CO/72/CZE.

35 Prosecutor v Dusko Tadic, Case No IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (2 October 1995), para 45; See also Prosecutor v Tolimir, Case No IT-05-88/2, Decision on Preliminary Motions on the Indictment Pursuant to Rule 72 of the Rules, Trial Chamber II (14 December 2007), para 35.

36 Prosecutor v Furundzija, Case No IT-95-17/1-T, Judgment, Trial Chamber (10 December 1998), para 183.

37 Moreover, even if the ICTY's practice could inform the present interpretative process, it is doubtful that jurisprudence of the ICTY could constitute ‘international law applicable between the parties’ for the purposes of art 31(3)(c). The commentary on 31(3)(c) refers only to treaties, customs and general principles as international law potentially applicable between the parties (see Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, adopted by the International Law Commission (58th session) Yearbook of the International Commission (2006) vol II, part 2, principle 18; Pauwelyn (n 3) 254; Linderfolk, U, ‘“Who are ‘the Parties?’” Article 31, Paragraph 3(c) of the 1969 Vienna Convention and the “Principle of Systemic Integration” Revisited’ (2008) 3 Netherlands International Law Review 343, 344Google Scholar. Judicial decisions are generally treated as a subsidiary source of international law (see eg Statute of the International Court of Justice, art 38(1)(d) and Rome Statute, art 21(2)). They are not regarded as binding on all States (Statute of the International Court of Justice, art 59). In addition, in the context of international criminal tribunals, the State is not even a party to the judicial process. Thus, even if the ICTY offered a more relevant and useful understanding of the phrase being interpreted, it would arguably not be regarded as within the scope of art 31(3)(c).

38 I Sinclair, The Vienna Convention of the Law of Treaties (2nd edn, Manchester University Press, Manchester, 1984) 142.

39 Sinclair ibid; Ris, M, ‘Treaty Interpretation and ICJ Recourse to Travaux Préparartoires: Towards a Proposed Amendment of Article 31 and 32 of the Vienna Convention of the Law of Treaties’ (1991) 14 Boston College International and Comparative Law Review 111Google Scholar, 113.

40 Lauterpacht, H, ‘Some Observations on Preparatory Work in the Interpretation of Treaties’ (1934–1935) 48 Harvard Law Review 549, 586Google Scholar; A Aust, Modern Treaty Law and Practice (2nd edn, CUP, Cambridge, 2007) 244; Ris ibid; International Law Commission, ‘Draft Articles on the Law of Treaties with commentaries’ Yearbook of the International Law Commission (1966) vol II, 220Google Scholar.

41 Ris (n 39) 111, 113.

42 Kirsch, P and Holmes, JT, ‘The Birth of the International Criminal Court: The 1998 Rome Conference’ (1998) 36 Canadian Yearbook of International Law 3Google Scholar, 4; Cassese, A, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 EJIL 144CrossRefGoogle Scholar, 145.

43 Although the US forced a last minute vote, the Diplomatic Conference was conducted on the understanding that it was to produce a consensus text: see Kirsch and Holmes, ibid.

44 Allott, P, ‘Power Sharing in the Law of the Sea’ (1985) 77 AJIL 1CrossRefGoogle Scholar, 7.

45 ‘Draft Statute for an International Criminal Court—Alternative to the ILC Draft (Siracusa-Draft)’ prepared by a Committee of Experts (Siracusa/Freiburg, July 1995), art 44(6).

46 ibid 48.

47 Report of the Preparatory Committee on the Establishment of an International Criminal Court, vol I (Proceedings of the Preparatory Committee during March-April and August 1996), UNGA Official Records, 51st session, Supplement No. 22, UN Doc A/51/22, para 270; International Criminal Court—Press Release GA/L/3044 11th Meeting (PM) (21 October 1997); See also contributions by Amnesty International on the general importance of human rights protections in the Statute: Amnesty International, ‘Establishing a Just, Fair and Effective International Criminal Court’, AI Index IOR 40/05/94 (October 1994).

48 Human Rights Watch, ‘Commentary for the March–April Preparatory Committee Meeting’ (copy on file with author).

49 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Submitted to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, Italy, 15 June–17 July 1998), UN Doc A/CONF.183/2/Add.1.

50 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome 15 June–17 July 1998, Official Records, Volume II, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, UN Doc A/CONF.183/13 (Vol II), various plenary meetings, 222–224.

51 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome 15 June–17 July 1998, Official Records, Volume II, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, UN Doc A/CONF.183/13 (Vol II), 2nd plenary meeting, 15 June 1998, 70–71.

52 United Nations High Commissioner for Human Rights, ‘The High Commissioner's Position Paper on the Establishment of a Permanent International Criminal Court’ (Geneva, 15 June 1998), UNICC/NONE/98/T, paras 46–50.

53 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome 15 June–17 July 1998, Official Records, Volume II, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, UN Doc A/CONF.183/13 (Vol II), 12th plenary meeting, 23 June 1998, 221–222.

54 ibid 223.

55 See Prosecutor v Thomas Lubanga Dyilo, ‘Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled ‘Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81’’ Appeals Chamber, ICC-01/04-01/06-774 (14 December 2006), para 11.

56 Situation in the Democratic Republic of the Congo, ‘Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal’, Appeals Chamber, ICC-01/04-168 (13 July 2006), para 37; Prosecutor v Thomas Lubanga Dyilo, ‘Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims’ Participation of 18 January 2008', Appeals Chamber, ICC-01/04-01/06-1432 (11 July 2008), para 13 (Separate and Partly Dissenting Opinion of Judge Pikis); Prosecutor v Jean Pierre Bemba Gombo, ‘Decision on the Prosecutor's application for leave to appeal Pre-Trial Chamber Ill's decision on disclosure’, Pre-Trial Chamber III, ICC-01/05-01/08-75 (25 August 2008), para 13; Prosecutor v Jean Pierre Bemba Gombo, ‘Fourth Decision on Victims’ Participation', Pre-Trial Chamber III, ICC-01/05-01/08-320 (12 December 2008), paras 16–17.

57 Situation in the Democratic Republic of the Congo, ibid, Appeals Chamber, ICC-01/04-168 (13 July 2006), para 37; See also Prosecutor v Thomas Lubanga Dyilo, ‘Decision on the Prosecutor's Application for Leave to Reply to “Conclusions de la défense en réponse au mémoire d‘appel du Procureur’”, Appeals Chamber, ICC-01/04-01/06-424 (12 September 2006), para 3 (Judge Pikis); See also Prosecutor v Thomas Lubanga Dyilo, ‘Judgment on the appeal of Mr Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”, Appeals Chamber, ICC-01/04-01/06-824 (13 February 2007), para 16 (Judge Pikis).

58 Situation in the Democratic Republic of the Congo, ibid, Appeals Chamber, ICC-01/04-168 (13 July 2006), para 11 (emphasis added); see also Prosecutor v Thomas Lubanga Dyilo, ‘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’, Appeals Chamber, ICC-01/04-01/06-772 (14 December 2006), para 36.

59 Prosecutor v Thomas Lubanga Dyilo, ibid, Appeals Chamber, ICC-01/04-01/06-772 (14 December 2006), para 37 (emphasis added).

60 Prosecutor v Germain Katanga, ‘Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI’, Pre-Trial Chamber I, ICC-01/04-01/07-257 (10 March 2008) 7; Prosecutor v Mathieu Ngudjolo Chui, ‘Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI’, Pre-Trial Chamber I, ICC-01/04-01/07-307 (10 March 2008) 7; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Decision on the powers of the Pre-Trial Chamber to review proprio motu the pretrial detention of Germain Katanga’, Pre-Trial Chamber I, ICC-01/04-01/07-330 (18 March 2008), page 6; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case’, Pre-Trial Chamber I, ICC-01/04-01/07-474 (13 May 2008), para 78.

61 Situation in the Democratic Republic of the Congo, ‘Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6’, Pre-Trial Chamber I, ICC-01/04-101-tEN-Corr (17 January 2006), para 81; Prosecutor v Omar Hassan Ahmad Bashir, ‘Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, Pre-Trial Chamber I, ICC-02/05-01/09-3 (4 March 2009), para 44.

62 Prosecutor v Thomas Lubanga Dyilo, ‘Decision on the Practices of Witness Familiarisation and Witness Proofing’, Pre-Trial Chamber I, ICC-01/04-01/06-679 (8 November 2006).

63 ibid para 10.

64 Prosecutor v Thomas Lubanga Dyilo, ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Statute’, Pre-Trial Chamber I, ICC-01/04-01/06-108 (19 May 2006), para 7; Prosecutor v Mathieu Ngudjolo Chui, ‘Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI’, Pre-Trial Chamber I, ICC-01/04-01/07-307 (10 March 2008) 7; Prosecutor v Germain Katanga, ‘Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI’, Pre-Trial Chamber I, ICC-01/04-01/07-257 (10 March 2008), 7; Prosecutor v Germain Katanga, ‘Judgment on the appeal of Mr Germain Katanga against the decision of Prc-Trial Chamber I entitled “Decision on the Defence Request Concerning Languages”’, Appeals Chamber, ICC-01/04-01/07-522 (27 May 2008), para 38; Prosecutor v Thomas Lubanga Dyilo, ‘Decision On The Final System Of Disclosure And The Establishment Of A Timetable’, Pre-Trial Chamber I, ICC-01/04-01/06-102 (15 May 2006), paras 1–3 of annex 1.

65 Prosecutor v Thomas Lubanga Dyilo, ibid, Pre-Trial Chamber I, ICC-01/04-01/06-108 (19 May 2006), para 7.

66 For example, it is common to see judicial pronouncement to the effect of ‘this interpretation of article 60(2) of the Statute is consistent with the case law of the Human Rights Committee, the Inter-American Court of Human Rights and the European Court of Human Rights’: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Decision on the powers of the Pre-Trial Chamber to review proprio motu the pretrial detention of Germain Katanga’, Pre-Trial Chamber I, ICC-01/04-01/07-330 (18 March 2008) 7, 9; Similarly, the Appeals Chamber has pronounced its interpretation of a particular provision and subsequently determined that ‘this interpretation is in adherence with the requirements in article 21(3) of the Statute … The Appeals Chamber has had regard to the jurisprudence of the European Court of Human Rights in this area of the law’: Prosecutor v Germain Katanga, ‘Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled ‘First Decision on the Prosecution Request for Authorisation to Redact Witness Statements’, Appeals Chamber, ICC-01/04-01/07-475 (13 May 2008), para 57; Prosecutor v Thomas Lubanga Dyilo, ‘Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”’, Appeals Chamber, ICC-01/04-01/06-1486 (21 October 2008), para 46.

67 See references to the ICCPR, ECHR, IACHR and African Charter on Human and Peoples's Rights in Situation in the Democratic Republic of the Congo, ‘Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal’, Appeals Chamber, ICC-01/04-168 (13 July 2006), para 11 and in Prosecutor v Thomas Lubanga Dyilo, ‘Reasons for ‘Decision of the Appeals Chamber on the Defence application “Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense filed on 20 February 2007” issued on 23 February 2007’, Appeals Chamber, ICC-01/04-01/06-844 (9 March 2007), para 12; See references to the ICCPR, ECHR and IACHR in Prosecutor v Thomas Lubanga Dyilo, ‘Decision on the admissibility of the appeal of Mr Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la confirmation des charges” of 29 January 2007’, Appeals Chamber, ICC-01/04-01/06-926 (13 June 2007), para 13; See references to the UDHR, ICCPR, IACHR, CRC, African Charter on Human and Peoples' Rights, African Charter on the Rights and Welfare of the Child and Arab Charter on Human Rights in Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Decision on ‘Mr Mathieu Ngudjolo's Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar's Decision of 18 November 2008’, Presidency, ICC-RoR217-02/08-8 (10 March 2009), para 44; See reference to the case law of the Human Rights Committee, European Court of Human Rights and Inter-American Court of Human Rights in Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ibid, Pre-Trial Chamber I, ICC-01/04-01/07-330 (18 March 2008) 7.

68 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ibid, Presidency, ICC-RoR217-02/08-8 (10 March 2009), para 44.

69 Situation in the Democratic Republic of the Congo, ‘Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal’, Appeals Chamber, ICC-01/04-168 (13 July 2006), para 38; Prosecutor v Thomas Lubanga Dyilo, ‘Reasons for ‘Decision of the Appeals Chamber on the Defence application ‘Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense’ filed on 20 February 2007' issued on 23 February 2007', Appeals Chamber, ICC-01/04-01/06-844 (9 March 2007), para 12.

70 Prosecutor v Thomas Lubanga Dyilo, ‘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’, Appeals Chamber, ICC-01/04-01/06-772 (14 December 2006), para 38; Prosecutor v Germain Katanga, ‘Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”’, Appeals Chamber, ICC-01/04-01/07-475 (13 May 2008), paras 57–59; Prosecutor v Thomas Lubanga Dyilo, ‘Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008’, Trial Chamber, ICC-01/04-01/06-1401 (13 June 2008), para 46; Although at least one decision has been dominated in some respects by its focus on the jurisprudence of the Inter-American Court of Human Rights: Prosecutor v Jean Pierre Bemba Gombo, ‘Fourth Decision on Victims’ Participation', Pre-Trial Chamber III, ICC-01/05-01/08-320 (12 December 2008), paras 44–45.

71 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Defence Appeal against the Decision on the Defence Challenge to Jurisdiction of 3 October 2006’, ICC-01/04-01/06-620 (26 October 2006), para 39.

72 Udombana, NJ, ‘The African Commission on Human and Peoples’ Rights and the Development of Fair Trial Norms in Africa' (2006) 6 African Human Rights Law Review 299, 311Google Scholar; See eg Right to a defence: International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998), paragraphs 99–101; Right to communicate with counsel of choice and the necessity of public proceedings except for exceptional circumstances: Media Rights Agenda and Others v Nigeria (2000) AHRLR 2000 (ACHPR 1998), paras 52, 56; Equality of arms: Advocats San Frontieres (on behalf of Bwampamye) v Burundi (2000) AHRLR 48 (ACHPR, 2000), para 27.

73 Murray, R, ‘International Human Rights: Neglect of Perspectives from African Institutions’ (2006) 55 ICLQ 193CrossRefGoogle Scholar, 195.

74 Slaughter, A-M, ‘A Typology of Transjudicial Communication’ (1994–1995) University of Richmond Law Review 99, 121Google Scholar.

75 Caso Ceasar v Trinidad and Tobago, No. 123, Ser C, Inter-American Court of Human Rights, Judgment of 11 March 2005, paragraphs 7,12 (Separate Opinion of Judge Cançado Trindade); Higgins, R, ‘A Babel of Judicial Voices? Ruminations From the Bench’ (2006) 55 ICLQ 791, 798Google Scholar.

76 See also Heyns, C, ‘African Human Rights Law and the European Convention’ (1995) South African Journal of Human Rights 252, 259Google Scholar.

77 Udombana (n 72).

78 Murray (n 73) 203; Heyns (n 76) 263.

79 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Decision on “Mr Mathieu Ngudjolo's Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar's Decision of 18 November 2008”’, Presidency, ICC-RoR217-02/08-8 (10 March 2009), para 31.

80 Prosecutor v Thomas Lubanga Dyilo, ‘Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007’, Appeals Chamber, ICC-01/04-01/06-925 (13 June 2007), para 16 (Judge Song); Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ibid, Presidency, ICC-RoR217-02/08-8 (10 March 2009); Situation in the Democratic Republic of the Congo, ‘Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6’, Pre-Trial Chamber I, ICC-01/04-101-tEN-Corr (17 January 2006), para 115; Prosecutor v Jean Pierre Bemba Gombo, ‘Fourth Decision on Victims’ Participation', Pre-Trial Chamber III, ICC-01/05-01/08-320 (12 December 2008), para 16; Prosecutor v Thomas Lubanga Dyilo, ‘Decision on victims’ participation', Trial Chamber, ICC-01/04-01/06-1119 (18 January 2008), para 35; Prosecutor v Thomas Lubanga Dyilo, ‘Decision on the applications by victims to participate in the proceedings’, Trial Chamber, ICC-01/04-01/06-1556-Corr-Anx1 (15 December 2008), para 48.

81 See French, D, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 ICLQ 281CrossRefGoogle Scholar, 308.

82 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Decision on “Mr Mathieu Ngudjolo's Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar's Decision of 18 November 2008”’, Presidency, ICC-RoR217-02/08-8 (10 March 2009).

83 ibid para 31.

84 French (n 81) 314.

85 See ‘Unleashing the Laws of War’ The Economist Vol 393, No 8644, (London England 15 August 2009) 44.Google Scholar

86 See A Boyle and C Chinkin, The Making of International Law (OUP, Oxford, 2007) 274.

87 Caso Ceasar vs Trinidad and Tobago No 123, Ser C, Inter-American Court of Human Rights, Judgment of 11 March 2005, para 7 (Separate Opinion of Judge Cançado Trindade).

88 Slaughter (n 74) 99.

89 Higgins (n 75) 791.