The Influence of the European Court of Human Rights' Case Law on International Criminal Law of Torture and Inhuman or Degrading Treatment

Abstract

The ad hoc international criminal tribunals have had recourse to the case law of the European Court of Human Rights (ECtHR) in order to define the constituent elements of a number of crimes relating to torture or inhuman or degrading treatment. At the same time, this reference to the ECtHR case law has not been exclusive (the tribunals have made reference to other sources), and it has not always been decisive (in some cases, the ECtHR case law was not helpful). In any event, this use of human rights case law only happened in the early years of the tribunals. Once the constituent elements were defined, self-reference prevailed: the Chambers of the tribunals no longer referred to the human rights system in general or to the ECtHR in particular, but to previous judgments of the other Chambers or of the Appeal Chamber. This is also true of the tribunals that were created subsequently: the hybrid tribunals, such as the Special Court for Sierra Leone, and the International Criminal Court, have not felt compelled to refer to human rights case law, as precedents by other international criminal tribunals were available. Now, another phenomenon may develop: as the European Court is more and more involved in international humanitarian law and international criminal law issues, it may increasingly refer to the international criminal tribunals’ case law in interpreting the European Convention of Human Rights.