International Criminal Tribunals and Human Rights Law: Adherence and Contextualization (International Criminal Justice Series Book 5)

This book addresses the interpretation and application of human rights norms by International Criminal Tribunals (ICTs). Such Tribunals are widely heralded as human rights defenders. At the same time, however, they employ activities that necessary entail the risk of human rights violations: they conduct criminal investigations, arrest and detain individuals, and put them on trial. This book investigates this flip-side of the ICTs’ relationship with international human rights law, and focuses on the ICTs’ own interpretation and application of human rights norms. First, the book addresses whether and how ICTs are bound by human rights law, since unlike states, they do not sign or ratify human rights conventions. Second, the book provides an in-depth analysis of the way in which ICTs interpret and apply human rights norms, compared to the way in which these norms are interpreted in a traditional state-context. Relying on the unique circumstances in which they operate, ICTs have often deviated from generally accepted interpretations of human rights. The author critically examines this so-called contextual approach and seeks to recommend ways in which ICTs can improve their interpretative practice by giving due regard to the context in which they operate, while still providing adequate human rights protection. Addressing the ICTs’ possible leeway in terms of contextualization, this book contributes to the broader debates about adherence to human rights norms in international law. Krit Zeegers is an Associate at Allen & Overy LLP, Amsterdam, and previously worked as a researcher / junior lecturer at the University of Amsterdam. Acknowledgements 6 Contents 7 Abbreviations 11 1 Introduction 13 References 18 Part I Applicability of International Human Rights Law to the International Criminal Tribunals 19 2 Human Rights Obligations of the ICTs under International Law 20 2.1 Introduction 20 2.2 International Legal Personality of the ICTs 21 2.3 Are International Organizations Bound by International Law? 23 2.3.1 Transfer Thesis 24 2.3.2 Subject Thesis 31 2.4 The Meaning of ‘Being Bound’ by General IHRL 37 2.4.1 Indeterminacy of ‘General International Law’ 37 2.4.2 Inherent Flexibility of Human Rights Standards 42 2.4.3 Permissibility of Lex Specialis 49 2.5 Conclusion 52 References 53 3 Human Rights Obligations of the ICTs Based on their Internal Law and Practice 58 3.1 Introduction 58 3.2 The ad hoc Tribunals 59 3.2.1 Internal Law and Practice 59 3.2.2 Case Law 70 3.3 The ICC 75 3.3.1 Article 21(1): Applicable Law 75 3.3.1.1 Internal Legal Instruments 76 3.3.1.2 Hierarchy of Sources 77 3.3.1.3 Applicable Treaties 79 3.3.1.4 Rules and Principles of International Law 80 3.3.1.5 General Principles of Law Derived from National Legal Systems 83 3.3.1.6 Interim Conclusion 84 3.3.2 Article 21(3): Consistency with Internationally Recognized Human Rights 84 3.3.2.1 Superiority of ‘Internationally Recognized Human Rights’ 85 3.3.2.2 Normative Effect: Mandatory Review of Consistency with Human Rights 89 3.3.2.3 Persisting Uncertainty: The ICC and the Detained Witnesses 96 3.4 Methodological Complications: Defining the Scope of ‘Internationally Recognized Human Rights’ 102 3.5 Contextualization: Adapting Human Rights to the ICTs’ Context 108 3.6 Conclusion 115 References 116 Part II The Interpretation and Application of Human Rights Norms by the International Criminal Tribunals 121 4 The Right to Privacy and Investigative Measures 122 4.1 Introduction 122 4.2 IHRL Framework 124 4.2.1 The Right to Privacy in the Context of Domestic Criminal Investigations 125 4.2.1.1 Scope of the Right to Privacy in the Context of Criminal Investigations 126 4.2.1.2 Lawfulness 127 4.2.1.3 Legitimate Aim 131 4.2.1.4 Necessity and Proportionality 131 4.2.1.5 Interim Conclusion 134 4.2.2 The Right to Privacy in the Context of Inter-State Cooperation in Criminal Matters 135 4.2.2.1 Formulating and Submitting a Request for Assistance 136 4.2.2.2 Execution of the Request 139 4.2.2.3 Evaluating Evidence Obtained 142 4.2.2.4 Interim Conclusion 147 4.3 Privacy and Direct Coercive Action by the ICTs 148 4.3.1 The ad hoc Tribunals 148 4.3.2 The International Criminal Court 155 4.4 Privacy and Coercive Measures Executed in Cooperation with States 158 4.4.1 The ad hoc Tribunals 160 4.4.1.1 Formulating and Submitting a Request for Assistance 160 4.4.1.2 Execution of the Request 165 4.4.1.3 Evaluating Evidence Obtained 169 4.4.2 The International Criminal Court 175 4.4.2.1 Formulating and Submitting a Request for Assistance 175 4.4.2.2 Execution of the Request 181 4.4.2.3 Evaluating Evidence Obtained 184 4.5 Comparison and the ICTs’ Use of IHRL 188 4.5.1 Comparing the ICTs’ Approach to the Right to Privacy to IHRL 188 4.5.2 The ICTs’ Use of IHRL on the Right to Privacy 191 4.6 Conclusion 193 References 195 5 The Right to Liberty and Provisional Release 198 5.1 Introduction 198 5.2 IHRL Framework 199 5.2.1 General Requirements 200 5.2.2 Reasonable Suspicion 205 5.2.3 Relevant and Sufficient Reasons for Detention 205 5.2.3.1 Flight Risk 206 5.2.3.2 Risk of Obstruction of the Investigation or the Trial 208 5.2.3.3 Risk of Reoffending 208 5.2.3.4 Public Order 209 5.2.4 Conclusion 210 5.3 Provisional Release Before the ad hoc Tribunals 210 5.3.1 The Original Requirement of ‘Exceptional Circumstances’ Justifying Release 213 5.3.2 Requirements for Release 219 5.3.2.1 Risk of Flight 220 5.3.2.2 Risk of Obstruction 231 5.3.2.3 Length of Provisional Detention 233 5.3.2.4 Continued Relevance of Humanitarian Circumstances Warranting Release 237 5.3.3 Burden and Standard of Proof 246 5.3.4 Comparison and the ad hoc Tribunals’ Use of IHRL 250 5.3.4.1 Comparing the ad hoc Tribunals’ Approach to the Right to Liberty to IHRL 250 5.3.4.2 The ad hoc Tribunals’ Use of IHRL on the Right to Liberty 253 5.4 Interim Release Before the ICC 258 5.4.1 Persistence of a Reasonable Suspicion 264 5.4.2 Reasons Necessitating Arrest and Detention 264 5.4.2.1 Flight Risk 264 5.4.2.2 Risk of Obstruction and Danger to Victims or Witnesses 276 5.4.2.3 Risk of Reoffending 279 5.4.3 Conditional Release 280 5.4.4 Review of the Length of Detention: Article 60(4) 282 5.4.5 Burden and Standard of Proof 285 5.4.6 Comparison and the ICC’s Use of IHRL 287 5.4.6.1 Comparing the ICC’s Approach to the Right to Liberty to IHRL 287 5.4.6.2 The ICC’s Use of IHRL on the Right to Liberty 292 5.5 Conclusion 293 References 295 6 The Right to Be Tried Without Undue Delay 297 6.1 Introduction 297 6.2 IHRL Framework 298 6.2.1 Scope of the Right to Be Tried Without Undue Delay 300 6.2.2 Relevant Parameters to Determine a Violation 301 6.2.2.1 Conduct of the Defendant 302 6.2.2.2 Conduct of the Authorities 303 6.2.2.3 Complexity of the Case 305 6.2.2.4 ‘What Is at Stake’ for the Defendant 307 6.2.2.5 Special Diligence: Provisional Detention and Undue Delay 307 6.2.3 Interim Conclusion 309 6.3 Trial Without Undue Delay Before the ad hoc Tribunals 310 6.3.1 Scope of the Right to Be Tried Without Undue Delay 311 6.3.2 Relevant Parameters to Determine a Violation 313 6.3.2.1 Length of the Delay 316 6.3.2.2 Complexity of the Case 317 6.3.2.3 Conduct of the Parties 321 6.3.2.4 Conduct of the Authorities 326 6.3.2.5 Prejudice 335 6.3.2.6 Other Relevant Aspects of the Tribunals’ Approach 337 6.3.3 Comparison and the Tribunals’ Use of IHRL 340 6.4 Trial Without Undue Delay Before the ICC 346 6.4.1 The Right to Be Tried Without Undue Delay in the Case Law of the ICC 347 6.4.2 Analysis: Comparison and the ICC’s Use of IHRL 353 6.5 Conclusion 356 References 358 Part III Synthesis, Conclusion & Recommendations 360 7 Adherence and Contextualization: Towards a Methodological Framework for the Interpretation and Application of Human Rights Norms 361 7.1 Introduction 361 7.2 Adherence to IHRL 362 7.2.1 Legislative Influence 362 7.2.2 Consistent Interpretation 364 7.3 Contextualization 367 7.3.1 The Specific Context of International Criminal Justice 368 7.3.1.1 Cooperation: The ICTs’ Necessary Reliance on States 369 7.3.1.2 Gravity of the Crimes 371 7.3.1.3 Complexity of the Cases 374 7.3.1.4 Fundamental Purpose of the ICTs 375 7.3.2 Modalities of Contextualization 377 7.3.2.1 Methods of Contextualization 377 7.3.2.2 Effects of Contextualization 381 7.3.2.3 Quality of Contextualization 384 7.4 Proper Contextualization of Human Rights Norms: A Methodology 386 7.4.1 Determining the Applicable Human Rights Norm 386 7.4.2 Determining the Nature, Scope, and Content of the Applicable Right 390 7.4.3 Analyzing the Context in Which the Right Must Be Applied 392 7.4.4 Interpreting and Applying the Right in the ICT Context 393 7.4.5 The Methodological Framework in Practice 394 7.5 Conclusion 398 References 400 8 Summary and Conclusion 402 8.1 Part I: Applicability of IHRL to the ICTs 403 8.2 Part II: Interpretation and Application of Human Rights by the ICTs 405 8.3 Part III: Towards a Methodological Framework 407 References 411 Annexes 412 Bibliography 422 Index 437 This Book Addresses The Interpretation And Application Of Human Rights Norms By International Criminal Tribunals (icts). Such Tribunals Are Widely Heralded As Human Rights Defenders. At The Same Time, However, They Employ Activities That Necessarily Entail The Risk Of Human Rights Violations: They Conduct Criminal Investigations, Arrest And Detain Individuals, And Put Them On Trial. This Book Investigates This Flip-side Of The Icts' Relationship With International Human Rights Law, And Focuses On The Icts' Own Interpretation And Application Of Human Rights Norms. Firstly, The Book Addresses Whether And How Icts Are Bound By Human Rights Law, Since Unlike States They Do Not Sign Or Ratify Human Rights Conventions. Secondly, The Book Provides An In-depth Analysis Of The Way In Which Icts Interpret And Apply Human Rights Norms, Compared To The Way In Which These Norms Are Interpreted In A Traditional State-context. Relying On The Unique Circumstances In Which They Operate, Icts Have Often Deviated From Generally Accepted Interpretations Of Human Rights. The Author Critically Examines This So-called Contextual Approach And Seeks To Recommend Ways In Which Icts Can Improve Their Interpretative Practice By Giving Due Regard To The Context In Which They Operate, While Still Providing Adequate Human Rights Protection. Addressing The Icts' Possible Leeway In Terms Of Contextualization, This Book Contributes To The Broader Debate About Adherence To Human Rights Norms In International Law--unedited Summary From Book Cover. Introduction -- Human Rights Obligations Of The Icts Under International Law -- Human Rights Obligations Of The Icts Based On Their Internal Law And Practice -- The Right To Privacy And Investigative Measures -- The Right To Liberty And Provisional Release -- The Right To Be Tried Without Undue Delay -- Adherence And Contextualization : Towards A Methodological Framework For The Interpretation And Application Of Human Rights Norms -- Summary And Conclusion. Krit Zeegers. Includes Bibliographical References (pages 417-431) And Index. Front Matter....Pages i-xii Introduction....Pages 1-6 Front Matter....Pages 7-7 Human Rights Obligations of the ICTs under International Law....Pages 9-46 Human Rights Obligations of the ICTs Based on their Internal Law and Practice....Pages 47-109 Front Matter....Pages 111-111 The Right to Privacy and Investigative Measures....Pages 113-188 The Right to Liberty and Provisional Release....Pages 189-287 The Right to Be Tried Without Undue Delay....Pages 289-351 Front Matter....Pages 353-353 Adherence and Contextualization: Towards a Methodological Framework for the Interpretation and Application of Human Rights Norms....Pages 355-395 Summary and Conclusion....Pages 397-406 Back Matter....Pages 407-434