Human Rights Obligations of the ICTs Based on their Internal Law and Practice

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This chapter investigates whether, and if so how their internal law and practice has addressed the question of IHRL’s bindingness vis-a-vis the ICTs. The ad hoc Tribunals’ legal instruments do not incorporate an obligation to respect international human rights norms, but the circumstances surrounding their creation and, more importantly, their judicial practice provide strong support for the conclusion that they are bound by IHRL. Article 21(1) of the Rome Statute allows the ICC to consult IHRL as a subsidiary source of applicable law. More importantly, Article 21(3) obliges the Court to respect ‘internationally recognized human rights’. This provision creates a general duty for the Court to subject all its interpretation and application of law to a mandatory review of consistency with such human rights standards. It is therefore clear that the ICTs are bound by IHRL. However, the actual implications of this remain difficult to determine. First, it remains unclear how the ICTs must determine which exact norms bind them. Second, the ICTs retain a certain measure of freedom to deviate from accepted interpretations of human rights norms, based on the specific context in which they operate. As a result, the scope of application of international human rights norms in the specific context of an ICT may be difficult to determine a priori. Such methodological obstacles must accompany a discussion of the binding nature of IHRL vis-a-vis the ICTs, because they will necessarily impact on their actual interpretation and application of human rights norms, and their use of IHRL in this process.