Dr. Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University.

International Criminal Law (ICL) might be one of the fields of international law where the effects of International Human Rights Law (IHRL) have been the most apparent. It felt almost artificial while putting together our Annotated Compilation of Case Law on the Effects of IHRL on other Branches of International Law (Reader) to limit ourselves to only 10 cases that represent the effects of IHRL on ICL. We thus decided to include those cases that are most illustrative of the different types of effects IHRL has had on ICL. When surveying the effects of IHRL on other branches of international law, we began with a fundamental inquiry: what do we mean by IHRL effects?  In the field of ICL in particular we find that IHRL has had effects on ICL in two senses:  a ‘broad’ sense and in the ‘narrow’ sense.  The broad sense of IHRL refers to the use of IHRL or human rights as part of general international law (see Nigel Rodley, Is there General International Human Rights Law? EJIL Talk! Oct. 16, 2014) to define the telos of ICL.  The narrow sense refers to the use of IHRL as a set of specific rules or interpretations of concrete concepts.

This post provides an overview of some of the ICL cases listed in our reader and demonstrates the difference between broad and narrow effects of IHRL.

The broad effects of IHRL on ICL

Let us begin by examining how IHRL has been used to generate new interpretations of existing ICL norms. One of the most drastic examples of IHRL’s influence on the interpretation  of ICL norms occurred in the Tadić Interlocutory Appeal on Jurisdiction (see p. 41-45 of the Reader).  Famously, the International Criminal Tribunal for the former Yugoslavia (ICTY) found that serious violations of International Humanitarian Law (IHL) committed in non-international armed conflicts gave rise to individual criminal responsibility under customary international law. The Chamber declared that on the basis of the high speed development of human rights law, the dichotomy between international and non-international armed conflicts did not make sense in today’s world. Given that it is one of most important passages on the effects of IHRL on ICL and international law as a whole, it is worth citing the Chamber at length:

the impetuous development and propagation in the international community of human rights doctrines, particularly after the adoption of the Universal Declaration of Human Rights in 1948, has brought about significant changes in international law, notably in the approach to problems besetting the world community. A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well. It follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned. (par. 97)

It was through this leitmotiv that the Appeals Chamber found that customary international law necessitates that serious violations of IHL entail the individual criminal responsibility of the perpetrator also in non-international armed conflicts. Whereas the ICRC and the Commission of Experts on the former Yugoslavia had reached the opposite conclusion less than two years earlier. The Chamber has in turn been accused of judicial law-making. Its resort to the technique of “modern custom” to find new norms under customary law is not only a finding of a new primary norm under existing international law, but also signals the emergence of a new rule of recognition for the ascertainment of customary international law. We therefore believe that the Appeals Chamber’s resort to ‘modern custom’ is symbolizing an effect of IHRL in the broad sense. The ICTY Trial Chamber’s finding (TC) in Kupreskic (see p. 45-48 of the Reader) that belligerent reprisals were prohibited under customary international law is a further example of the relaxation of the method of ascertainment of customary international norms by judges, through the use of IHRL imperatives. But the Chambers’ findings in Tadic and Kupreskic appear to be based on a human rights-based/inspired thinking, rather than the interaction or effects of specific IHRL norms on ICL.

IHRL also constituted the ratio legis in other cases where the ad hoc tribunals gave a new interpretation to existing ICL norms, without however an effect on the method to ascertain customs. In Delalić et al. (see p. 48-51 of the Reader) the TC interpreted “of which they are not nationals” in article 4 Geneva Convention on the basis of the civilian allegiance to another entity, instead of citizenship status under domestic law. For the TC, “[i]t would be incongruous with the whole concept of human rights, which protects individuals from the excesses of their own governments, to rigidly apply the nationality requirement of article 4, that was apparently inserted to prevent interference in a State’s relations with its own nationals.” Hence, the telos of IHRL required a new interpretation of existing IHL. In the same vein, the TC of the International Criminal Tribunal for Rwanda provided in Akayesu (see p. 51-53 of the Reader) a definition of rape that was purposefully designed to be interpreted broadly so as not to exclude certain acts and ensure that full protection is afforded to the most vulnerable victims. In these cases, the ad hoc tribunals provided definitions that were out of the blue, though premised on the logic of human rights law.

The narrow effects of IHRL on ICL

In some cases however ICL was effected by IHRL qua IHRL; particularly where IHRL imposes substantive or procedural obligations upon the International Criminal Tribunals and Courts (ICTs). In such type of effects, IHRL is causing the change in a direct way. For instance, in the International Criminal Court (ICC) Decision on the ‘Requête tendant à obtenir présentations des témoins aux autorités néerlandaises aux fins d΄asile’ (see p. 59-62 of the Reader) where the TC suspended the immediate return of the three detained witnesses to the DRC for their asylum request to be processed – non-refoulement being at stake – in The Netherlands despite the clear wording of Article 93(7) of the Rome Statute. Along similar lines, the decisions in Barayagwiza, (stay of proceedings) Nikolic (stay of proceedings), Kajelijeli (reduction of sentence), Rwamakuba (compensation) and Lubanga (stay of proceedings) (diverse measures were considered on the basis of the doctrine of abuse of process although this doctrine is not provided in their statutes (see p. 66-69 of the Reader).  It is to be noted that in these cases, IHRL had a double effect: it imposed an obligation upon the ICTs and at the same time filled the gap created by the absence of rules governing an abusive process. This type of effect is more common with respect to the ICC, by virtue of its Article 21 (3) of the Rome Statute obligations to apply and interpret the applicable law consistently with internationally recognised human rights. Thus, the systemic integration of IHRL norms in the practice of the Court is explicitly provided for by the Rome Statute.

The cases listed above are examples of cases where IHRL has had an effect on ICL, without a doubt. There are also cases where judges were more cautious about the incorporation of IHRL into the applicable legal framework. For instance, the ICC Appeals Chamber overturned the decision not to send back the DRC’s detained witness to their home country until their asylum requests are processed. The Kunarac case (see p. 62-65 of the Reader) is also a case often referenced to highlight the differences between IHRL and ICL.  Indeed, in this case, the ICTY declared that a judicial borrowing from IHRL instruments on the definition of torture was inappropriate. In particular, the Trial Chamber was of the view that ICL was a penal regime, where the Prosecutor was set against the defendant, while in IHRL the respondent was the State. Given this structural difference, the Chamber decided in contrast to the definition of Torture applicable in IHRL, ICL did not require that the presence of a state official or of any other authority-wielding person in the torture process be proven.

Overall, IHRL had a variety of effects on ICL. I will conclude with a sentence of the Trial Chamber in Kunarac that in my opinion reflects well the way we have to approach the effects of IHRL on ICL, ‘The Trial Chamber is […] wary not to embrace too quickly and too easily concepts and notions developed in a different legal context.’ This cautious stance should indeed be our starting point when assessing the effects of IHRL on ICL, irrespective of whether we understand ‘effect’ in the broad sense or in the narrow sense. Indeed, for ICL to remain open to IHRL effects, the latter must it be adapted to the specifics of a criminal trial. That is, the judicial exercise of discretion to give effects to IHRL must respect the particulars of international criminal proceedings, satisfy the accused right to a fair trial and be in accordance with the principle of legality.

* I would like to thank Prof. Başak Çalı and Dr. Valentina Azarova for their comments and edits on previous drafts of this post.