Abstract
International Criminal Tribunals are not party to any human rights convention, which raises the question whether they have human rights obligations under international law at all. If so, these must stem from other sources of international law. This chapter therefore investigates whether the ICTs, as legal entities, are bound by general international human rights law. To that end, this chapter first addresses the legal status of the ICTs in international law, and the two rationales that have prevailed in international legal doctrine for considering international organizations with legal personality to be bound by international law: the so-called transfer thesis and the subject thesis. Subsequently, three concerns are identified that must accompany the conclusion that the ICTs are bound by international human rights law. First, it is difficult to establish the existence of norms contained in the unwritten sources of general international law: custom and general principles of law. Second, international human rights norms are, to a certain extent, inherently flexible and differ considerably from the procedural norms that the ICTs primarily apply in the context of their proceedings. Third, the relationship between the legal instruments of an ICT and IHRL is fundamentally different from the relationship of domestic law with IHRL, because there is no a priori hierarchy between the law of international criminal procedure and IHRL since both are branches of international law. Therefore, the fact that the ICTs are bound by IHRL does not mean that they are, from a formalist perspective, fully precluded from deviating from the norms contained in this body of law.
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Notes
- 1.
Their constituent instrument also contain human rights obligations for the ICTs, but these will be discussed in Chap. 3 infra.
- 2.
ICJ, Advisory Opinion, Reparations for Injuries, 11 April 1949, 8, which confirms that the question of whether the UN has the capacity to bring a claim depends on its international legal personality; see also Amerasinghe 2005, 80; Klabbers 2009, 52; Blokker 2010, 37. This study will not enter into debates on different theories regarding the way in which international legal personality comes about. For these debates, see e.g. Schermers and Blokker 2011, 988–989, Amerasinghe 2005, 79ff; Klabbers 2009, 47–50.
- 3.
Article 4(1) ICC Statute; see also Verhoeven 2003, 5.
- 4.
UNSC Res 827 (25 May 1993) UN Doc S/Res/827; UNSC Res 955 (8 November 1994) UN Doc S/Res/955.
- 5.
See e.g. Acquaviva 2011, 185, who states that the ad hoc Tribunals are ‘organs of the UN, which is itself a subject of international law’. The Tribunals themselves have confirmed this. See e.g. ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić (IT-94-I), 2 October 1995, 33–36.
- 6.
See e.g. Amerasinghe 2005, 86, who states that Tribunals that fall under the aegis of a broader international legal organization may either share the personality of their parent organization, or have a separate personality, based on their constituent instrument; see also Gallant 2004, 399, who states that the ad hoc Tribunals share the legal personality of the UN.
- 7.
Sluiter 2002, 20; Agreement between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian law Committed in the Territory of the Former Yugoslavia Since 1991, 19 July 1994; Agreement between the United Nations and the United Republic of Tanzania concerning the headquarters of the International Criminal Tribunal for Rwanda, 3 August 1995; see also, for an overview of several agreements, mainly on the enforcement of sentences, concluded by the UN on the ICTR’s behalf: ICTR Website, Legal, Bilateral Agreements http://www.unictr.org/Legal/BilateralAgreements/tabid/99/Default.aspx accessed 3 June 2014; similarly, for an overview concerning agreements concluded by the UN on behalf of the ICTY: ICTY Website, Legal Library, Member State Cooperation http://www.icty.org/sections/LegalLibrary/MemberStatesCooperation accessed 3 June 2014.
- 8.
See e.g. Agreement on Surrender of Persons between the Government of the United States and the Tribunal, 5 October 1994, available online: http://www.icty.org/x/file/Legal%20Library/Member_States_Cooperation/implementation_legislation_united_states_1994_en.pdf accessed 3 June 2014; Agreement on Surrender of Persons between the Government of the United States, 24 January 1995, reproduced in Morris and Scharf 1998, 391.
- 9.
Sluiter 2002, 20.
- 10.
ICJ, Advisory Opinion, Reparations for Injuries, 11 April 1949, 8.
- 11.
See e.g. ILC, Articles on the Responsibility of International Organizations, in: ILC, ‘Report of the International Law Commission on the Work of its 63rd Session’ (2011) UN Doc A/66/10, 50–170, Articles 6 and 8 clarify that the conduct of organs of international organizations shall be considered attributable to that organization; idem: Fedorova and Sluiter 2009, 21: ‘the ad hoc Tribunals, as UN organs, inherit their obligations under general international law from the obligations incumbent upon the UN as an international organisation’.
- 12.
- 13.
Klabbers 2009, 284.
- 14.
Reinisch 2001, 143; see also, e.g.: Committee on the Accountability of International Organizations, Final Report on the Accountability of International Organizations (International Law Association 2004), 18; Morgenstern 1986, 32; Mégret and Hoffmann 2003, 318. See further: ECtHR case law in this respect, e.g.: ECtHR, Judgment, Beer and Regan v. Germany (App No 28934/95), 18 February 1999, 57–58; ECtHR, Judgment, Waite and Kennedy v. Germany (App No 26083/94), 18 February 1999, 67.
- 15.
De Vattel 1758, 6.
- 16.
See also De Schutter 2010, 57ff, who uses the terminology of succession.
- 17.
Vienna Convention on the Law of Treaties (VCLT) (adoption: 23 May 1969, entry into force: 27 January 1980); see e.g. Salmon 2011, 661: ‘the fundamental character of the rule … has been proclaimed since time immemorial’.
- 18.
See e.g. Schermers 1998, 402; Mégret and Hoffmann 2003, 318; Reinisch 2001, 136; Schermers and Blokker 2011, 996; see also Naert 2010, 413; who offers a number of critical observations regarding reliance on this rule as a basis for establishing the obligations of international organizations under international law.
- 19.
Straumann 2010, 112–113.
- 20.
- 21.
Previously Court of Justice of the European Communities; this study will henceforth use the general abbreviation ‘ECJ’.
- 22.
ECJ, Judgment, International Fruit Company n.v. and others v. Produktschap voor Groenten en Fruit (21–24/72), 5 May 1972, 15.
- 23.
Ibid., 18.
- 24.
Ibid., 16; see also Hirsch 1995, 51.
- 25.
ECJ, Judgment, Douaneagent der N.V. Nederlandse Spoorwegen v. Inspecteur der Invoerrechten en Accijnzen (38/75), 11 June 1974, 21: relating to the 1950 Convention on Nomenclature for the Classification of Goods in Customs Tariffs and the 1950 Convention establishing a Customs Cooperation Council; note that the ECJ also reaffirmed its findings from the International Fruit Company case pertaining to the GATT in this case: 16. See also Hirsch 1995, 50.
- 26.
Similarly, David 1999, 11–12.
- 27.
ECJ, Judgment, Nold v. Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities (4/73), 14 May 1974, 13. See also e.g.: ECJ, Judgment, Stauder v. City of Ulm Saulezamt. (29/69), 12 November 1969, 7; ECJ, Dzodzi v. Belgium (297/88 and 197/89), 18 October 1990, 68; ECJ, Judgment, ERT AE v. DEP (260/89), 18 June 1991, 41; ECJ, Judgment, Baustahlgewebe v. Commission of the European Communities (185/95), 17 December 1998, 20–21, 79; ECJ, Opinion, Opinion on the Competence of the Community to accede to the European Convention on Human Rights (2/94), 28 March 1996, 32–34. See also Naert 2010, 398–400; Ahmed and De Jesús Butler 2006; Rosas 2001.
- 28.
ECJ, Judgment, Nold v. Kohlen-und Baustoffgroßhandlung v. Commission of the European Communities (4/73), 14 May 1974, 13; ECJ, Opinion, Opinion on the Competence of the Community to accede to the European Convention on Human Rights (2/94), 33.
- 29.
ECJ, Judgment, ERT AE v. DEP (260/89), 18 June 1991, 41.
- 30.
- 31.
- 32.
- 33.
See also De Schutter 2010, 61; Naert 2010, 412, who argues that such succession is difficult to sustain, because ‘only in some cases, there is real transfer rather than the creation of new and distinct power … international organizations hardly ever truly replace their member states in the responsibility for their international relations’.
- 34.
ECnHR, Decision, M & Co. v. Federal Republic of Germany, (App No 13258/87), 9 February 1990, 10.
- 35.
See also ECtHR, Judgment, Beer and Regan v. Germany (App No 28934/95), 18 February 1999 57–58; ECtHR, Judgment, Matthews v. United Kingdom (App No 24833/94), 18 February 1999, 34; ECtHR, Judgment, Waite and Kennedy v. Germany (App No 26083/94), 18 February 1999, 67.
- 36.
ECnHR, Decision, M & Co. v. Federal Republic of Germany (App No 13258/87), 9 February 1990, 10.
- 37.
ECtHR, Judgment, Bosphorus Hava Yollari Turízm ve Tícaret Anoním Şírketi v. Ireland (App No 45036/98, 30 June 2005; see also ECtHR, Judgment, Coöperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (App No 13645/05), 20 January 2009; ECtHR, Judgment, Gasparini v. Italy & Belgium (App No 10750/03), 12 May 2009, 20.
- 38.
ECtHR, Judgment, Bosphorus Hava Yollari Turízm ve Tícaret Anoním Şírketi v. Ireland (App No 45036/98, 30 June 2005, 155–157; on the ECtHR’s approach to the responsibility of member states for acts of international organizations, see e.g. Ryngaert 2011.
- 39.
ECtHR, Decision, Boivin v. 34 Member States of the Council of Europe (App No 73250/01), 9 September 2008, 6; ECtHR, Decision, Connolly v. 15 Member States of the European Union (App No 73274/01), 9 December 2008, 6–7; ECtHR, Decision, Établissement Biret et Cie. S.A. v. 15 Member States of the European Union (App No 13762/04), 9 December 2008, 6–8; ECtHR, Judgment, Beygo v. 46 Member States of the Council of Europe (App No 36099/06), 16 June 2009, 4–6; ECtHR, Judgment, Rambus Inc. v. Germany (App No 40382/04), 16 June 2009, 7–8.
- 40.
Lock 2010, 533; see also ECtHR, Judgment, Behrami and Behrami v. France (App No 71412/01), 2 May 2007, 151; ECtHR, Decision, Berić and others v. Bosnia and Herzegovina (App Nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05), 21 September 2004 and 4 June 2005, 16–18.
- 41.
See e.g. Ryngaert 2011.
- 42.
The ICC currently has 123 State Parties and a further 16 Signatories, See United Nations Treaty Collection, Chapter XVIII, Penal Matters: The Rome Statute of the International Criminal Court, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en Accessed 6 January 2016.
- 43.
Naert 2010, 414.
- 44.
Ibid.
- 45.
Hirsch 1995, 58.
- 46.
Naert 2010, 413.
- 47.
See e.g. Schermers 1998, 403, who contends that international organizations should be bound by what he calls ‘law-making treaties’ ratified by member states after the transfer of power to the organization. However, he fails to offer a convincing formal legal basis for this argument.
- 48.
Similarly De Schutter 2010, 64.
- 49.
However, it must be noted that the ad hoc Tribunals do enjoy primacy over states in their jurisdiction to adjudicate upon these matters. Similarly, although the principle of complementarity makes that the ICC does not have a similar primacy, the ICC is exclusively competent to adjudicate those cases that it determines to be admissible. To a certain extent, the ICTs therefore do ‘replace’ states in their exercise of the power to prosecute cases that are determined to be admissible by the ICT in question.
- 50.
- 51.
See e.g. ICJ, Advisory Opinion, Reparation for Injuries, 11 April 1949, 9; ICJ, Advisory Opinion, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 20 December 1980, 37; ICJ, Advisory Opinion, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, para 25; see also Higgins 1994, 46; Wellens 2001, 1; Clapham 2006, 64; Shaw 2008, 259–260, 1296–1303; Klabbers 2009, 11; Schermers and Blokker 2011, 991. A full discussion of the contested concept of international legal personality, and the doctrinal debates surrounding this matter exceed the scope of the present study, which considers only those organizations that possess such personality.
- 52.
Article 38(1) ICJ Statute. International organizations, like states, cannot normally be bound by treaties unless they are party to them (the exception being the ECJ’s approach to the treaty obligations of its member states under the GATT discussed in Sect. 2.3.1 above). For comparable definitions of general international law, see e.g. Verdirame 2011, 71. See also Pauewlyn 2003, 148; who also includes ius cogens as a third source of general international law. However, ius cogens is not a separate source of law, rather, it is a special status given to certain norms of (customary) international law; similarly Naert 2010, 409.
- 53.
- 54.
ICJ, Advisory Opinion, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 20 December 1980, 37.
- 55.
See e.g. Hirsch 1995, 17; David 1999, 3; Shaw 2008, 1309, 1311; Amerasinghe 2005, 400; Clapham 2006, 65; McCorquodale 2009, 156; De Schutter 2010, 56; Schermers and Blokker 2011, 996. For authors who assert the subject thesis with respect to ICTs specifically, see e.g. Reinisch 1995, 186–187; Gradoni 2006, 851; Acquaviva 2007, 614; Sluiter 2002, 33; Croquet 2011, 97; Gradoni 2013, 82.
- 56.
Similarly Klabbers 2008, 165, where he states that ‘the discipline may claim, following the ICJ in 1980, that international organizations are subjects of international law, and thus also subject to international law, but it remains unclear which international law, and why: there is no plausible theory of obligation’. For a similarly critical approach, see Alston 2005, 9, where he states that ‘the conclusion is that [international organizations are … non-state actors upon whom human rights obligations do not and cannot fall directly’.
- 57.
Similarly Vasiliev 2014, 101: ‘[the ICJ] qualifies the applicability of general international law to international organizations, by limiting it to obligations incumbent upon them under that law. It is uncertain, however, what obligations in relation to the choice of applicable law—or in any other relevant aspect for that matter (including, as will be seen, human rights standards)—are bestowed upon IOs, and international criminal courts in particular, by sources other than their constitutions and agreements to which they are parties’.
- 58.
ECJ, Judgment, Anklagemyndigheden v. Poulsen and Diva Navigation Corp. (286/90), 24 November 1992, 9. The ECJ has come to this finding in a number of cases. See e.g. ECJ, Judgment, Opel Austria GmbH v. Council of the EU (T-115/94), 22 January 1997, 90; ECJ, Judgment, A. Racke GmbH & Co. v Hauptzollamt Mainz (162/96), 15 June 1998, para 7; ECJ, Judgment, Firma Brita GmbH v. Hauptzollamt Hamburg-Hafen (C-386/08), 25 November 2010, 42.
- 59.
ICTY, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, Prosecutor v. Simić et al. (IT-95-9-PT), 27 July 1999, 42. For a full discussion of the ICTY’s approach to international human rights law, specifically, see infra Sect. 3.2.
- 60.
ICTY, Decision on Motion for Judicial Assistance to Be Provided by SFOR and Others, Prosecutor v. Simić et al. (IT-95-9-PT), 27 July 1999, 46; see also Committee on the Accountability of International Organizations, Final Report on the Accountability of International Organizations (International Law Association 2004), 18; for an extensive discussion, see e.g. Acquaviva 2011, 185–203.
- 61.
Third Restatement of the Law: Foreign Relations Law of the United States, Washington D.C.: American Law Institute Publishers (1986), 101.d: ‘[g]eneral international law is law that applies to states and international intergovernmental organizations generally’; Hafner 2005, 606: ‘their status as subjects of international law makes them addressees of international law. Consequently, their activities are governed by those rules of international law which generally apply to such activities’; Cameron 2007: ‘the generality of general international law makes that it applies to all subjects’; De Brabandere 2010, 337: ‘once a norm has become customary international law it applies to all subjects of international law, irrespective of their nature’.
- 62.
- 63.
Clapham 2006, 87.
- 64.
Similarly Verdirame 2011, 72, where he states that considering international organizations bound by general international law ‘ensures systemic coherence’.
- 65.
Morgenstern 1986, 32.
- 66.
- 67.
- 68.
See e.g. Brownlie 2008, 602; Shaw (n 50), 91, who also refers to: Tunkin 1976, 129; however, it must be acknowledged that this contention has been subject to a great deal of criticism; in practice, however, Shaw’s conclusion appears to have prevailed. He contends that an approach to new states and custom that would permit new states to pick and choose which customs to adhere to ‘could prove highly disruptive’. Shaw therefore offers a solution of ‘implicit consent’, stating that ‘the proviso is often made that by entering into relations … with other states, new states signify their acceptance of the totality of international law’.
- 69.
See e.g. Shaw 2008, 89–91.
- 70.
Klabbers 2008, 169, who also appears to endorse the subject thesis, despite what he calls the absence of a plausible theory of obligation.
- 71.
- 72.
Schermers and Blokker 2011, 996; similarly Arsanjani 1981, 132: ‘[i]nternational organizations, as both creations and creators of international law, cannot ignore the principles that created them and that they are designed to promote. International organizations must be deemed incapable of excluding themselves arbitrarily from international obligations’.
- 73.
- 74.
ICJ, Advisory Opinion, Reparations for Injuries, 11 April 1949, 9.
- 75.
- 76.
Naert 2010, 395.
- 77.
See, generally: Abels 2013.
- 78.
See infra Sect. 7.4.1, where an adaptation of the functional approach will be proposed.
- 79.
See infra Chap. 3 on the way in which the ICTs’ internal law and practice obliges them to abide by international human rights law.
- 80.
Vasiliev 2014, 107: ‘the uncertainty as to what human rights standards apply qua customary law and general principles of law is a general one—it lurks in the unwritten and nebulous character of those sources’; similarly Naert 2010, 651, who also notes the great uncertainty regarding the extent to which human rights are part of customary international law; Sluiter 2003, 938: ‘a major difficulty is the identification of human rights being part of customary law or amounting to general principles of law’; Warbrick 1998, 46, noting, with regard to the establishment of custom and general principles of law, that ‘there are obstacles in the way of demonstrating conclusively that there are such rules of sufficient detail to provide practical assistance’; Fedorova and Sluiter 2009, 26.
- 81.
Similarly Cameron 2007, 276: ‘arguing that international organizations are generally bound by customary human rights law may calm fears that they are operating in some kind of legal void, but it leaves many important questions open. In particular, what is the specific content of those rights?’
- 82.
- 83.
Addo 2010, 28: ‘human rights are recognized as part of international law, and as a consequence, it may have inherited some shortcomings, including its indeterminacy, from the parent discipline’; Vasiliev 2014, 108: ‘both methodologies [for ascertaining custom and general principles] rest on the need to engage in a global-scale and cumbersome comparative research of the practice of states in their mutual transactions and internal law-making and adjudicative practices’.
- 84.
Brownlie 1995, 77, and 83: ‘[t]he vast majority of States and authoritative writers would now recognize that the fundamental principles of human rights form part of customary or general international law, although they would not necessarily agree on the identity of the fundamental principles’.
- 85.
D’Amato 1995, 75; similarly Schabas 2009, 100, ‘the tribunals are not employing customary law ‘as if they were applying PIL in the classic sense, for example in determining the limits of fishing zones, or the scope of diplomatic immunities, or other issues involving reciprocal rights of states in which the distinct elements of practice and opinio juris usually manifest themselves rather clearly’.
- 86.
Simma and Alston 1989, 99, who note that, when internal state practice is concerned, it becomes difficult to distinguish between the performance of customary law obligations operating purely at the domestic level, such as in the case of human rights, and internationally concordant domestic behaviour followed for reasons other than a sense of international legal obligation, such as driving on the correct side of the road.
- 87.
- 88.
- 89.
- 90.
- 91.
See e.g. Van Hoof 1983, 107–108: ‘it is dangerous to denaturate the practice-oriented character of customary law by making it comprise methods of law-making which are not practice-based at all. This undermines the certainty and clarity which the sources of international law have to provide … what if States making statements [concerning the importance of the UDHR] at the same time treat their nationals in a manner which constitutes a flagrant violation of its very provisions? (…) even if abstract statements or formal provisions in a constitution are considered as state-practice, they have at any rate to be weighed against concrete acts’; see also Koskenniemi 2005, 411–438, where he discusses the circularity of the focus on opinio iuris, which he calls ‘the psychological element’ of custom (see in particular: 431–438); Simma and Alston, 89, 96–97, who are concerned with the move from an inductive to a deductive approach to establishing customary international law, which focuses on ‘rhetoric’ rather than on hard practice; Jennings 1982, 5, who notes that ‘what we perversely persist in calling customary international law is not only not customary law: it does not even faintly resemble a customary law’; Weisburd 1996, 140, where he notes that ‘evidence does not support the proposition that states generally are prepared to acknowledge that human rights norms are internationally enforceable … then, labelling such norms rules of customary law would appear to be a contradiction in terms’.
- 92.
- 93.
- 94.
See e.g. Schabas 2009, 80: ‘the process itself seems tautological, and often the search for customary norms—whether described as opinio juris or as state practice—leads back to one of the other primary sources, international conventions.’ The ICTY has also noted this problem: ICTY, Judgement, Prosecutor v. Delalić et al. (IT-96-21-T), 16 November 1998, para 302.
- 95.
Vasiliev 2014, 108, noting the scarcity of international custom governing the conduct of criminal proceedings in general; see also Gallant 1999, 696, who questions whether the privilege against self-incrimination is a customary human rights: ‘even if the privilege were treated as customary international law, implementation of the privilege varies so widely that it would be difficult to determine just how far the right to silence extends’.
- 96.
- 97.
Fedorova and Sluiter 2009, 26, who note that ‘the norms laid down in the treaties are not completely reflective of international custom or general principles of law’; see also Gallant 1999, 696: ‘some of the protections against unfair criminal prosecutions contained in the ICCPR may not yet have passed into customary international law, or it may be quite difficult to determine the extent of the customary right’.
- 98.
Koskenniemi 1991, 399.
- 99.
Similarly, e.g.: D’Amato 1995, 48, who notes: ‘what are the parameters of torture? Does it have to be “official torture” to count as a violation of human rights norms, or would torture by paramilitary or irregular troops, or even a band of criminals, also violate the anti-torture norm? Is the battering of wives “torture”? And where can one draw the line between torture and inhumane treatment or punishment?’
- 100.
See e.g. Article 15 ICAT which prohibits the use of statements obtained through torture as evidence in criminal proceedings. However, the scope of this standard is not necessarily clear-cut. See e.g. ECtHR, Judgment, Gäfgen v. Germany (App No 22978/05), 1 June 2010, 183–187, where the ECtHR ultimately found the claimant to have had a fair trial, even though he had been threatened with torture, and much of the evidence against the claimant had been gathered as a result of his statements given pursuant to these threats.
- 101.
D’Amato 1995, 49.
- 102.
For a discussion of the different positions regarding the meanings of this term, see: Vasiliev 2009, 31–42, who concludes that the text of Article 38 of the ICJ Statute refers to principles that are recognized in domestic law, which is the view that a majority of international legal scholars subscribe to.
- 103.
Mégret 2013, 68, who notes that the very idea that there might be general principles common to all nations when it comes to criminal procedures may be a stretch; and 71, where he notes that ‘the practice is likely to be so divergent and so difficult to analyse out of context that it would provide very little clue as to emerging international norms’.
- 104.
Ibid., 72, who notes, when discussing the value of general principles of law for international criminal procedure, that these are ‘likely to be so general as to not be particularly useful’.
- 105.
- 106.
Ibid., 26.
- 107.
Vasiliev 2014, 116.
- 108.
Addo 2010, 186–187: ‘according to the applicable international law in this field, the primary responsibility for the guarantee and assurance of human rights rests with national authorities. This rule is founded on the principle of subsidiarity and confirms that international supervision … is secondary to national decision-making’; Warbrick 1998, 51: many international standards ‘are really standards of review of national decisions rather than rules of decision themselves and, at best, they create minimum levels of protection rather than normal or optimum ones’; similarly Trechsel 2011, 156, who notes that the case law of the ECtHR can be described as ‘judges judg[ing] judges judging judges’, because it is a review procedure. According to Trechsel, before the ECtHR, ‘the distance to the trial proceedings and to the accused is considerable. Those judges are not really actors in the administration of justice, but rather some sort of inspectors or supervisors’. The ECtHR is a judge of criminal proceedings, whereas the ICTs conduct criminal proceedings.
- 109.
Safferling and others 2012, 61.
- 110.
Shany 2006, 917: ‘[r]esult-oriented norms are, as a rule, indifferent to the way in which a desired object is attained, provided that its eventual attainment is ensured. States thus enjoy broad discretion as regards the choice of means and manner of implementation or result-oriented norms and the path to the desired end is bound to be uncertain’.
- 111.
- 112.
See e.g. for a recent judgment: ECtHR, Judgment, Ivanovski v. Macedonia (App No 10718/05), 24 April 2014, 42; similarly Harris and others 2009, 256, who refer to: ECtHR, Judgment, Schenk v. Switzerland (App No 10862/84), 12 July 1988, 34; ECtHR, Judgment, Jalloh v. Germany (App No 54810/00), 11 July 2006, para 94.
- 113.
Harris and others 2009, 256.
- 114.
Damaška 2011, 379.
- 115.
Harris and others 2009, 203: ‘in criminal cases, the interpretation of Article 6 is complicated by the basic differences that exist between common law and civil law systems of criminal justice’; similarly 9: ‘in connection with the right to a fair trial, … there is much diversity of practice resulting, most clearly, from the differences between civil and common law systems of criminal justice’.
- 116.
Mégret 2009, 54–55: ‘[t]hey have only occasionally hinted that widely divergent practices might be problematic, or promoted a particular approach to a domestic procedure, or criticized a particular tradition’; Harris and others 2009, 329: ‘as to the mechanics of the trial process, the Court has been far less intrusive. Given the great diversity of practice in European criminal justice systems concerning, for example, the rules of evidence, the Court has allowed considerable discretion as to means, requiring only that the outcome of the procedure followed is a fair trial’.
- 117.
Mégret 2009, 41–42.
- 118.
See also Article 1 of Protocol 15 to the ECHR, which, once it enters into force, will formally introduce the margin of appreciation into the Convention preamble. The HRC and the IACtHR have also employed this doctrine. See e.g. Legg 2012, 6: ‘[t]he HRC has been “speaking silently” the language of the margin’.
- 119.
- 120.
Vasiliev 2014, 95: ‘[h]uman rights courts such as the ECHR are subsidiary mechanisms by nature: they carry out supervisory functions in relation to domestic proceedings and in doing so necessarily accord a margin of appreciation to states in regard of a variety of nuances of judicial organization and process. This is different for international criminal tribunals, which decide substantive issues on the merits and, except at the appellate level, are not super-structures but full-fledged systems doing the gritty justice work such as the disposition of cases at the first instance’.
- 121.
Shany 2006, 909–910.
- 122.
Harris and others 2009, 350; Mégret 2010, 133: ‘one rationale for the margin of appreciation is that states and domestic courts are better suited to assess local peculiarities and that there is simply too much uncertainty about how human rights are to be implemented for international supervision to exercise more than relatively minimum control’.
- 123.
- 124.
Legg 2012, 40.
- 125.
- 126.
Mégret 2009, 54.
- 127.
- 128.
Similarly Damaška 2011, 380: ‘as is amply illustrated by the “margin of appreciation” left to member states of the Council of Europe by the European Court of Human Rights, a wide range of more or less liberal procedural arrangements is compatible—even in the context of domestic administration of justice—with fair trial standards. This then holds a fortiori for international criminal procedure, which need not necessarily echo the decisions of the Strasbourg Court’; similarly Mégret 2009, 55: the ICTs ‘have used this margin of appreciation considerably, and have been quick to point out that international human rights standards merely set the “absolute minimum”’.
- 129.
Article 29(2) UDHR; the ICCPR, ECHR, and ACHR contain limitation clauses attached to specific rights; see e.g. Articles 18(3), 19(3), and 22(2); Articles 8(2), 9(2), 10(2), and 11(2) ECHR; 12(3), 13(2), 15, 16(2), 22(3) ACHR; Article 11 ACHPR.
- 130.
- 131.
- 132.
See e.g. ECtHR, Judgment, Huvig v. France (App No 11105/84), 24 April 1990, 26; ECtHR, Judgment, Camenzind v. Switzerland (App No 21353/93), 16 December 1997, 37; ECtHR, Judgment, Doerga v. Netherlands (App No 50210/99). 27 April 2004, 45; ECtHR, Judgment, Sefilyan v. Armenia (App No 22491/08), 2 October 2012, 121; ECtHR, Judgment, Bernh Larsen Holding AS and others v. Norway (App No 24117/08), 14 March 2013, 123; Arai 2006, 336–337.
- 133.
- 134.
ECtHR, Judgment, Camenzind v. Switzerland (App No 21353/93), 16 December 1997, 44; ECtHR, Judgment, Buck v. Germany (App No 41604/98), 28 April 2005, 44; ECtHR, Judgment, Keegan v. United Kingdom (App No 28867/03), 18 July 2006, 30; ECtHR, Judgment, Robathin v. Austria (App No 30457/06), 3 July 2012, 43; ECtHR, Judgment, Michaud v. France (App No 12323/11), 6 December 2012, 120.
- 135.
Harris and others 2009, 349.
- 136.
Similarly Fedorova and Sluiter 2009, 41–42; Addo 2010, 184: ‘international human rights treaties appreciate the competing nature of rights and the need for governmental supervisory responsibility that feeds on discretion. This is often reflected in the list of permissible limitations concerning public order, national security and the rights of others’.
- 137.
See e.g. Ovey and White 2006, 234.
- 138.
Mégret 2010, 143.
- 139.
Article 15 ECHR; Article 4 ICCPR; Article 27 ACHR.
- 140.
- 141.
See e.g. ECtHR, Judgment, A. and others v. United Kingdom (App No 3455/05), 19 February 2009, 173.
- 142.
Flinterman 2006, 1056; ECtHR, Judgment, A. and others v. United Kingdom (App No 3455/05), 19 February 2009, 173.
- 143.
Article 4(2) ICCPR; Article 15(2) ECHR; Article 27(2) ACHR, which provides a more comprehensive list.
- 144.
Nowak 2005, 86.
- 145.
- 146.
ICTY, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Prosecutor v. Tadić (IT-94-I), 10 August 1995, 61; see further, infra Sect. 3.5. As will be seen, the ICTs have referred to this doctrine more often, although the military tribunal-parallel has disappeared from its case law. The interesting question is whether such reliance on the doctrine of derogations should be regarded as a formal invocation of derogations, or as a mere illustration of the non-absolute nature of human rights standards. On that issue, see e.g. Cassese 1997, 331, who states that, despite the fact that the ICTY had been established because of a war and national emergency situation, its Statute does not explicitly permit derogation from basic human rights guarantees, although the right to a fair trial is a derogable right. This approach will be assessed in Chap. 7, infra.
- 147.
- 148.
Vasiliev 2014, 111: ‘the availability of those avenues to states indicates that the minimum standard of protection required under customary international law in certain limited circumstances is lower than what those provisions establish by default. The existence of the respective clauses in the human rights treaties and the derivative state practice obfuscates the mandatory minimum scope of protection under general international law’; similarly Defrancia 2001, 1396, ‘to the extent that certain due process norms may be derogable under international law, the strength of these protections in an international system of adjudication remains an open question’.
- 149.
Mégret 2009, 53 : ‘It lacks the “thickness” of domestic traditions in that it is only interested in a few key principles and typically neglects most of the technical, ritual, and institutional features that are so characteristic of ordinary criminal procedure. Fundamental intuitions about the need or fight to a fair trial await concretization in actual forms’; Safferling and others 2012, 62: on many issues, ‘human rights offer an underlying rationale, but do not give a prescriptive answer’.
- 150.
Mégret 2009, 57.
- 151.
Vasiliev 2014, 139: ‘international human rights standards create obligations as to result while the states as their addressees enjoy a ‘margin of appreciation’ in the framework of review of their human rights practices by regional courts and treaty-monitoring bodies. There is no reason why the nature of human rights as ends-oriented obligations should fundamentally change in the context of international courts and tribunals; similarly McIntyre 2003, 200.
- 152.
Article 27 VCLT.
- 153.
Nollkaemper 2011, 286.
- 154.
It must be emphasized that international organizations and their member states may only invoke such deviations from general international law inter partes, since a treaty (including a constituent treaty of an international organization) may only affect the rights and obligations of parties to the treaty, not those of non-parties (Article 34 VCLT). Arguably, for the ad hoc tribunals, for example, this would include the entire membership of the UN, because their Statutes were adopted by the Security Council.
- 155.
ICJ, Advisory Opinion, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 20 December 1980, 37.
- 156.
- 157.
- 158.
Article 53 VCLT.
- 159.
- 160.
Article 30 VCLT.
- 161.
Article 24 VCLT; see also Brownlie 1995.
- 162.
- 163.
Simma and Pulkowski 2006, 485–490, for a discussion of the origin, relevance and character of the lex specialis maxim in international law.
- 164.
Gradoni 2013, 84, who notes that ‘[b]y establishing a treaty-based tribunal like the SCSL, the contracting parties may derogate from customary international law as long as they stay within the boundaries of jus cogens’; Vasiliev 2014, 101, who raises similar questions: ‘are states precluded from departing from custom, and may they not have done so, when creating those courts? For one, the state practice of creating such courts, as demonstrated by the ICC Statute, seems to confirm that adjustments to that norm are indispensable. Transposing it in an unadulterated form to the regimes of other international judicial organs may be difficult if not impossible’.
- 165.
Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi (13 April 2006) UN Doc A/CN.4/L.682 (‘Koskenniemi report’), 39; quoting Villiger 1985, 161. See also Pauwelyn 2003, 133, who holds that ‘in practice most cases of apparent, as well as genuine, contradiction between treaty and custom must be decided in favour of the treaty norm’ .
- 166.
Koskenniemi report (n 165), 44–46, particularly the cases mentioned in footnotes 93–96.
- 167.
Thirlway 1989, 144.
- 168.
Koskenniemi report (n 165), 46.
- 169.
Koskenniemi report (n 165), recommendations, 8.
- 170.
Simma and Pulkowski 2006, 488.
- 171.
Ibid., see also, Brownlie 2008, 688, who states that ‘In principle the relations of the organization with other persons of international law will be governed by international law, including general principles of law, with the norms of the constituent treaty predominating when relations with member states of the organizations are concerned’ [emphasis added, KZ].
- 172.
Similarly Morgenstern 1986, 32: a key element of the internal law of most organizations is itself an international treaty, which may call for a different hierarchy of legal norms, and possibly a distinction between the priority given to ius cogens and to other rules of international law; see also, on the ICTY specifically: ICTY, Appeals Judgement, Declaration of Judge Robinson, Prosecutor v. Furundžija (IT-95-17/1-A), 21 July 2000, 279, where Judge Robinson opined that the Statutes of the ICTs may ‘derogate from customary international law’ and cited the example of Article 29 of the ICTY Statute, which obliges states to provide assistance to the Tribunal, as a primary example of such derogation.
- 173.
Vasiliev 2014, 106.
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Zeegers, K. (2016). Human Rights Obligations of the ICTs under International Law. In: International Criminal Tribunals and Human Rights Law. International Criminal Justice Series, vol 5. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-102-9_2
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