The following is a guest post by Emily Tsui. Emily is a Juris Doctor/ Master of Global Affairs candidate at the University of Toronto. The following is the author’s reflection of her experience at the 2021 Online Winter Courses of the Hague Academy of International Law. This blogpost and the author’s attendance at the Hague Academy are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.
In the International Criminal Court’s (ICC) recent and lengthy trial judgment in the case of Dominic Ongwen, the Trial Chamber made several references to the jurisprudence of human rights courts, instruments, and documents. These references included 12 citations to the European Court of Human Rights (ECtHR); 14 citations to the Inter-American Court of Human Rights (IACtHR); several citations to instruments such as the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Convention on Consent to Marriage; and multiple citations to various reports by the United Nations (UN) High Commissioner for Human Rights. The references highlight one way of how the ICC engages with human rights law in its work in adjudicating international criminal cases. The following post discusses why the relationship between international criminal law and international human rights law matter, and the crucial role that human rights activists and institutions have in developing this relationship.
Why the relationship between international criminal law and international human rights law matters
International criminal law and international human rights law are distinct but related branches of law. As the International Law Commission’s (ILC) Report on Fragmentation noted, international human rights law aims to “protect the interests of individuals”, while international criminal law “gives legal expression to the fight against impunity.” As the ILC observes, these distinct branches of law emerge out of the practice needs of specialization, rather the intentional creation of distinct regimes. These two fields are deeply linked in substance. For example, serious human rights violations may constitute crimes against humanity under international criminal law. As such, it is logical that interactions between these two fields of law occur.
Various courts and tribunals have furthered the link between international human rights law and international criminal law, which helps to create a coherent body of law across different international forums to bring justice to individuals whose rights have been violated. At the ICC, the relationship between the two fields is given effect under Article 21(3) of the Rome Statute, which allows the ICC to consider “internationally recognised human rights.” Article 21(3) is considered a welcome provision that allows for the interaction of these two regimes by formally permitting the interaction between the two fields of law.
As noted above, the trial judgment of Dominic Ongwen made reference to decisions of several international courts and tribunals, including the jurisprudence of the ECtHR, IACtHR, and the African Commission of Human Rights in its discussion of what constitutes torture (par. 2701). These references help the Trial Chamber to show that there is a broad consensus in international courts that the severity of torture may be met by a single act or by a combination of acts reached as a whole. This practice of international criminal courts and tribunals in referencing cases of human rights tribunals is not new to Dominic Ongwen’s case, but rather is a long-standing practice. Institutions like the International Criminal Tribunal for the Former Yugoslavia (ICTY) have long used human rights law in its jurisprudence.
Under international human rights law, the IACtHR cross-references the jurisprudence of the ICTY and the Special Court for Sierra Leone. For example, in Almonacid-Arellano et al. v. Chile, the IACtHR referenced the ICTY’s decision in Prosecutor v. Tadic, among others, to conclude that “a single act of murder committed as part of a widespread or systematic attack against civilians is sufficient for the configuration of a crime against humanity.” The result of this system of cross-referencing between courts is that perpetrators of crime cannot escape accountability depending on the forum. It also means that international criminal law is available in a larger number of forums as it applies to human rights courts and tribunals.
International human rights law also insists on the protection for the rights of the accused, which helps to promote the institutional legitimacy of courts and tribunals and the rule of law internationally. Article 69(7) of the Rome Statute allows the ICC to exclude evidence obtained by means of a violation of the Statute or internationally recognised human rights. The scope of protection of an accused’s rights in international criminal law is shaped by the evolution of internationally recognised human rights, allowing the criminal justice system to reflect current notions of justice.
The role of human rights activists and institutions in international criminal law
The work of human rights activists and scholars shapes the content of international criminal law. The content of “internationally recognised human rights” evolves over time as dialogue on human rights advances. Opportunities to shape this definition exist within the court’s formal processes. For example, inside the court’s formal processes, the Office of the Prosecutor of the ICC’s 2014 Policy Paper on Sexual and Gender-Based Crimes was the product of a wide-ranging consultation with academic, non-governmental organisations, experts, member states, and more. As a result of the dialogue, the policy paper changed over time, and it is currently being used to inform the Office of the Prosecutor’s work in taking a gender-based approach to issues. It is highly likely that this policy paper is instructive to the Office of the Prosecutor’s current work in the ongoing trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. The outcome of this trial could shape the ICC’s jurisprudence on gender-based persecution for years to come, and is notable as it uses updated notions of what constitutes gender-based persecution.
Outside of formal consultation processes, the ongoing work of human rights institutions contributes to the development of the substance of international criminal law, even if the objective of the institutions’ work is not explicitly to develop international criminal law. In Dominic Ongwen’s case, the Trial Chamber cited the UN Commission on Human Rights Special Rapporteur’s Report on Contemporary Forms of Slavery to note that the term “sexual slavery” understood within the crime of enslavement under Article 7(1)(g) and Article 8(2)(e)(vi) “may refer to acts carried out through sexual means or by targeting sexuality.” This expands existing definitions of the term “sexual” to beyond acts of rape, penetration, and physical context towards an updated notion of what sexual slavery constitutes.
Human rights activists and institutions can also facilitate the continued relevance of international criminal law. They work to collect information, preserve evidence, and bring public attention to potential breaches of international criminal law. This can potentially lead to the opening of investigations at the ICC. The Office of the Prosecutor’s recent decision to request authorisationfrom the Judges of the Pre-Trial Chamber of the Court to open investigations in Ukraine was partially based off preliminary examinations of evidence documented by the United Nations Office of the High Commissioner for Human Rights. Furthermore, human rights activists can be instrumental in lobbying for the creation a new tribunal, such as the International, Impartial and Independent Mechanism (IIIM) for crimes committed during the Syrian Civil War. The choice of human rights activists and officials to turn international criminal law institutions to seek remedies for injustice, strengthens the legitimacy of institutions like the ICC and the IIIM.
International criminal law and international human rights law interact in many ways. This interaction contributes to the harmonization of standards of justice among international courts and tribunals, the strengthening of institutional legitimacy, the development of international criminal law and human rights law in substance, and the promotion of justice where there might not otherwise be. To continue promoting this interaction, it is important to create arenas for interaction between international criminal law and international human rights practitioners continue to be developed.