The influence of the European Court of Human Rights on international criminal tribunals – some methodological remarks

2002 ◽  
pp. 19-52
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
International Criminal Tribunals ◽  
European Court

International Criminal Tribunals in the Shadow of Strasbourg and Politics of Cross-fertilisation

2015 ◽  
Vol 84 (3) ◽  
pp. 371-403
Author(s):  
Sergey Vasiliev
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Human Rights Law ◽  
International Human Rights ◽  
Critical View ◽  
International Criminal Tribunals ◽  
European Court ◽  
International Human

This article takes a critical view on the debates around the phenomenon of jurisprudential cross-fertilisation between international criminal tribunals and human rights courts, in particular the European Court of Human Rights. Asymmetries of cross-citation and influence along this axis of cross-judicial communication can be explained by distinct judicial styles and uneven mutual relevance, rather than by any sort of hierarchy. However, the discourse surrounding the tribunal-oriented ‘cross-fertilisation’ has a normative pull that introduces an informal hierarchy, which is a means to ensure the tribunals’ conformity with human rights law. However valid its agenda may be, this approach is legally groundless and incompatible with the terms of transjudicial communication and it underestimates the pluralist nature of international human rights, among other discontents. Ultimately, it is also ineffective in serving its main ideological purpose.

scholarly journals The Gravity of International Crimes as a Challenge to the (Full) Protection of Human Rights before International Criminal Tribunals? A Strasbourg Perspective

2017 ◽  
Vol 86 (4) ◽  
pp. 499-524
Author(s):  
Christophe Deprez
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
International Justice ◽  
International Crimes ◽  
International Criminal Tribunals ◽  
General Terms ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
Full Protection

While it goes undisputed that international criminal tribunals (icts) are, in general terms, bound to respect human rights standards, there is no consensus on whether their obligations should be identical in scope to those of national criminal tribunals. Most commentators seem to value the idea of equality in protection for international and domestic defendants alike. Yet, according to others, the human rights obligations of icts should be contextualised, that is, adapted to the specificities of international justice – and most critically to the gravity of international crimes. This article seeks to shed some light on this debate. It does so, in particular, by pointing out the intrinsic flexibility of human rights, and by drawing on the practice of the European Court of Human Rights with respect to gravity-based contextualism.

The Principle of Legality at the Crossroads of Human Rights and International Criminal Law

2018 ◽  
Author(s):  
Shane Darcy
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Law ◽  
International Criminal Tribunals ◽  
Ex Post ◽  
European Court ◽  
Ex Post Facto ◽  
Principle Of Legality

This chapter explores the treatment of the principle of legality in international criminal law, in particular the rule against ex post facto application of criminal laws, as enshrined in human rights law. It demonstrates that a broadly liberal interpretation of nullum crimen has facilitated judicial creativity and the development of international criminal law by international courts and tribunals. The chapter begins with a general discussion of the principle of legality under international law, before turning to a consideration of the treatment of the principle at Nuremberg and the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The final section of the chapter turns to the European Court of Human Rights and examines how it has addressed the rule of non-retroactivity in the context of national prosecutions of international crimes, in particular in Kononov v. Latvia.

scholarly journals Review of the Monograph by PhD in Law D.A. Pechegin «Competitive and Investigative Models of Proceedings in the International Criminal Court»

2017 ◽  
Vol 4 (3) ◽  
pp. 245-246
Author(s):  
I I Kucherov
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Comprehensive Analysis ◽  
Criminal Cases ◽  
International Criminal Tribunals ◽  
European Court

Monograph by D.A. Pechegin «Competitive and investigative models of proceedings in the International Criminal Court» is devoted to the study of the model of criminal justice, as well as its implementation in the structure of adversarial and investigative principles, both internationally and nationally. The reader is presented with a comprehensive analysis of various issues in the production of criminal cases through the prism of analyzing the provisions of not only domestic and foreign legislation, but also statutory and other documents of international criminal tribunals, ad hoc courts, the European Court of Human Rights.

Obstacles to Cross-fertilisation: The International Criminal Tribunals’ ‘Unique Context’ and the Flexibility of the European Court of Human Rights’ Case Law

2015 ◽  
Vol 84 (3) ◽  
pp. 404-427 ◽  
Author(s):  
Julia Geneuss
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
European Convention ◽  
Criminal Courts ◽  
Translation Process ◽  
Legal Norms ◽  
International Criminal Tribunals ◽  
European Court ◽  
Legal Context ◽  
Starting Point

International criminal courts (icts) frequently refer to the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights (ECtHR). While this practice is often regarded as cross-fertilisation, in this paper cross-fertilisation is used in a more demanding way and refers to the “transmission of meaning from one (legal) context to another”. For such a cross-fertilisation to ensue legal norms or concepts need to be translated from original to the borrowing legal system without losing its normative meaning. However, a translation from ECtHR-language into ict-language is problematic because of the specific contexts in which both courts operate. Since those obstacles primarily affect the outcome and not the method of the translation process, this paper concludes with an attempt to develop a coherent and transparent method of translating human rights into ict-language taking the frequent characterisation of ECtHR jurisprudence as “persuasive authority” as a starting point.

Contemporary International Tribunals

2018 ◽  
Author(s):  
Antônio Augusto ◽  
Cançado Trindade
Keyword(s):  
Human Rights ◽  
International Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Human Rights ◽  
International Criminal Tribunals ◽  
International Human ◽  
International Tribunals ◽  
Cross Fertilization

More recently, jurisprudential cross-fertilization has kept on being pursued in particular by international human rights tribunals and international criminal tribunals. This is reassuring, as, despite their distinct jurisdictions, their work is complementary, in their common mission of imparting justice, in distinct domains of international law. Jurisprudential cross-fertilization fosters cohesion and the unity of law. Particularly attention is currently devoted to the preservation of the legacy of the ad hoc international criminal tribunals.

scholarly journals Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test

2015 ◽  
Vol 84 (3) ◽  
pp. 515-531
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
International Crimes ◽  
European Court ◽  
Starting Point

This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a – potentially exculpating – mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

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