Human Rights Obligations of the ICTs under International Law

Abstract

International Criminal Tribunals are not party to any human rights convention, which raises the question whether they have human rights obligations under international law at all. If so, these must stem from other sources of international law. This chapter therefore investigates whether the ICTs, as legal entities, are bound by general international human rights law. To that end, this chapter first addresses the legal status of the ICTs in international law, and the two rationales that have prevailed in international legal doctrine for considering international organizations with legal personality to be bound by international law: the so-called transfer thesis and the subject thesis. Subsequently, three concerns are identified that must accompany the conclusion that the ICTs are bound by international human rights law. First, it is difficult to establish the existence of norms contained in the unwritten sources of general international law: custom and general principles of law. Second, international human rights norms are, to a certain extent, inherently flexible and differ considerably from the procedural norms that the ICTs primarily apply in the context of their proceedings. Third, the relationship between the legal instruments of an ICT and IHRL is fundamentally different from the relationship of domestic law with IHRL, because there is no a priori hierarchy between the law of international criminal procedure and IHRL since both are branches of international law. Therefore, the fact that the ICTs are bound by IHRL does not mean that they are, from a formalist perspective, fully precluded from deviating from the norms contained in this body of law.