scholarly journals The other side of the Article 21(3) coin: Human rights in the Rome Statute and the limits of Article 21(3)

2019 ◽  
Vol 32 (4) ◽  
pp. 837-850
Author(s):  
Emma Irving
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Central Place ◽  
Legal Framework ◽  
Criminal Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The Past

AbstractThe drafters of the Rome Statute sought to accord human rights a central place within the legal framework of the International Criminal Court (ICC). This was done not only through numerous provisions on the rights of the accused, victims, and witnesses, but also through the inclusion of the overarching Article 21(3) of the Rome Statute. Article 21(3) Rome Statute requires that the interpretation and application of all ICC law be consistent with internationally recognized human rights. While this provision has been employed on numerous occasions to bolster human rights protection in the ICC legal framework, it is not without its limits. In a series of decisions over the past few years, ICC judges have placed limits on the protections that can be read into the ICC legal framework on the basis of Article 21(3). Beyond stating that the ICC ‘is not a human rights court’, the decisions in question articulate no clear justification for the limitations imposed on Article 21(3). The present article analyses these decisions and identifies the underlying rationale for the Court’s approach: the principle of speciality. However, the picture is further complicated by the judges’ willingness to overlook the principle of speciality when particularly serious violations of human rights are involved. This leaves the precise contours of human rights protection in the ICC legal framework undefined.

Human Rights Protection before the International Criminal Court

2016 ◽  
Vol 18 (1) ◽  
pp. 72-101
Author(s):  
Alex Davidson
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Successful Operation ◽  
Human Rights Protection ◽  
Substantive Content ◽  
Rights Protection ◽  
Interpretative Analysis

This article assesses the human rights framework of those accused before the International Criminal Court, with particular emphasis on Article 21(3) of the Rome Statute. Part 2 examines a number of obstacles currently impinging the successful operation of human rights protection before the Court, which Article 21(3) may remedy. Part 3, drawing on strands of interpretative analysis, seeks to interpret and illuminate Article 21(3), arguing that a broad scope ought to be adopted for determining the substantive content encapsulated by ‘internationally recognized human rights’. Moreover, Article 21(3) should be recognised as containing the hierarchical standard of what has been termed ‘super-legality’. Part 4 then highlights the interpretive potential for Article 21(3) as both a tool of innovation and as a remedial device for human rights violations before the Court that are not explicitly provided for in the Rome Statute.

O SURGIMENTO DO TRIBUNAL PENAL INTERNACIONAL COMO UMA DECORRÊNCIA DO NEOCONSTITUCIONALISMO E DE SUA PROPOSTA DE PROTEÇÃO AOS DIREITOS HUMANOS UNIVERSAISTHE EMERGENCE OF THE INTERNATIONAL CRIMINAL COURT AS A RESULT OF THE NEOCONSTITUTIONALISM AND ITS PROPOSAL FOR UNIVERSAL HUMAN RIGHTS’ PROTECTION

2016 ◽  
Vol 5 (9) ◽  
Author(s):  
Artemis Cardoso Holmes (Universidade Nova de Lisboa)
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Universal Human Rights

Neste artigo pretende-se demonstrar que o Neoconstitucionalismo, ao priorizar os princípios em detrimento das normas positivadas e eleger os direitos humanos como lastro de validade das leis, contribuiu para o desenvolvimento da jurisdição internacional, fato que possibilitou a instituição do Tribunal Penal Internacional.

Human Rights at the International Criminal Court: Testing the Limits of Judicial Discretion

2017 ◽  
Vol 86 (1) ◽  
pp. 68-90 ◽  
Author(s):  
Marina Aksenova
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Specific Reference ◽  
Judicial Discretion ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The Relationship

The future of the International Criminal Court (icc) is uncertain. The system established by the Rome Statute of the icc ensures that priority is given to domestic prosecutions, while at the same time, it imbues international values into national systems. The approach of the Court to the rights of the accused and victims’ rights poses challenges. In the Al Senussi complementarity decision, the icc refused to act as a human rights court and rendered the case inadmissible, notwithstanding the death penalty threatening the accused if tried in Libya. Does the same reasoning hold true in other circumstances? The article explores the relationship between human rights law and international criminal law with specific reference to the principle of complementarity and argues that judicial discretion is central in the assessment of the degree of human rights protection at the icc.

scholarly journals The International Criminal Court and Sexual Violence: Between Aspirations and Reality

2021 ◽  
Vol 22 (5) ◽  
pp. 878-893
Author(s):  
Tanja Altunjan
Keyword(s):  
Sexual Violence ◽  
Conceptual Understanding ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
Full Potential ◽  
Sexual Crimes ◽  
Track Record

AbstractThe adoption of the Rome Statute of the International Criminal Court (ICC) was widely lauded as a success with regard to the recognition and potential prosecution of conflict-related sexual violence. More than twenty years later, however, many observers are disillusioned with the ICC’s dire track record concerning the implementation of its progressive legal framework. In many cases, the Court and particularly its Prosecutor have been criticized for failing to adequately address and prioritize sexual violence, culminating in only a single final conviction since 2002. Nevertheless, the ICC’s emerging practice shows progress with regard to the conceptual understanding of conflict-related sexual violence and the realization of the Statute’s full potential in ensuring accountability for sexual crimes. Taking into account the evolving jurisprudence, the Article explores the persisting challenges and the perceived gap between aspirations and reality regarding the prosecution of sexual violence at the ICC.

Rome’s Legacy: Negotiating the Reparations Mandate of the International Criminal Court

2017 ◽  
Vol 17 (2) ◽  
pp. 351-377 ◽  
Author(s):  
Christoph Sperfeldt
Keyword(s):  
Criminal Justice ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
International Criminal Justice ◽  
Fresh Perspective ◽  
Rules Of Procedure ◽  
Victim Reparations

This article examines the negotiations that led to the incorporation of reparations provisions into the legal framework of the International Criminal Court (icc). Building upon a review of the travaux préparatoires and interviews, it traces the actors and main debates during the lead-up to the Rome Conference and the drafting of the Rules of Procedure and Evidence, explaining how and why reparations were included into the Rome Statute. In doing so, the article shows how the reparations mandate was produced at the intersection of a set of different agendas and actors. From this account, it identifies a number of key themes that were at the centre of the negotiations and often galvanised contestations among delegations or with ngos. The article concludes with a fresh perspective on the origin of victim reparations in the Rome Statute and its relevance for understanding many of today’s debates around reparations in international criminal justice.

The International Criminal Court

2008 ◽  
Vol 7 (1) ◽  
pp. 115-160
Author(s):  
Noora Arajärvi ◽  
Dov Jacobs
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Democratic Republic Of Congo ◽  
Case Law ◽  
Criminal Court ◽  
High Expectations ◽  
Outreach Programs ◽  
The Past ◽  
Raising Awareness

AbstractThis article covers the past two years of the activity of the International Criminal Court. Ten years after the signature of the Rome Statute, the Court has continued investigating situations in four countries (Democratic Republic of Congo, Uganda, the Sudan and the Central African Republic). The activity of the Court has accelerated, with four indictees in custody in the DRC situation, one public arrest warrant in the CAR situation and two in the Sudan situation. The Court has developed its case law on victim participation and refined its procedural framework, through constant debate between the Prosecutor and the pre-trial chambers. It has also pursued its goal of increasing cooperation with State parties, and raising awareness of the Court through outreach programs. The Court faces difficult challenges in establishing itself as a credible court, balancing the necessary requirements of fairness in a criminal trial and the high expectations of victims and the international community. The recent stay of proceedings and granting of release in the Lubanga case, which is supposed to be the first trial of the Court, is an illustration of this challenge and the difficulty in finding this balance.

Part 10 Enforcement: Exécution, Art.106 Supervision of enforcement of sentences and conditions of imprisonment/Contrôle de l’exécution de la peine et conditions de détention

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Fundamental Rights ◽  
International Standards ◽  
National Treatment ◽  
Receive Treatment

This chapter comments on Article 106 of the Rome Statute of the International Criminal Court. Article 106 strikes a balance between the general carceral system applicable in the State of enforcement that applies to the Court's prisoner, and the requirement of generally accepted international standards drawn from human rights instruments. This ‘national treatment’ clause was originally introduced to ensure that prisoners of the Court would not receive treatment that was worse than that of ordinary prisoners. The primary function of the provision is protecting the fundamental rights of the prisoner. The article also declares that Communications between a sentenced person and the Court shall be unimpeded and confidential.

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