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The Relationship between the International Criminal Court and its Host State: The Impact on Human Rights

Published online by Cambridge University Press:  13 February 2014

EMMA IRVING
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Abstract

When an international criminal tribunal establishes its headquarters in a state, its legal relationship with that state must be carved out. This legal relationship has the potential to exclude the applicability of human rights protection by curtailing the host state's jurisdiction in parts of its territory. Despite this, there is little clarity as to when when such curtailment should arise. This problem is illustrated by the situation regarding witnesses at the International Criminal Court, which has recently been the subject of decisions of the Hague District Court and of the European Court of Human Rights. These two courts disagree on the threshold at which the human rights issues engaged by the situation are brought under the jurisdiction of the Netherlands. This article submits that the European Court in Djokaba Lambi Longa v. The Netherlands set the threshold for jurisdiction under the Convention too high. In applying easily distinguishable previous case law, and failing to take into account all relevant facts, the Court's finding of inadmissibility is unconvincing. The Dutch Court, on the other hand, took a broader approach from which the European Court of Human Rights could learn. Ultimately the two decisions give contrasting interpretations of the relationship between the ICC and its host state, which could have wider ramifications.

Keywords

European Court of Human Rightshost statehuman rightsInternational Criminal Courtjurisdiction
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals
Information
Leiden Journal of International Law , Volume 27 , Issue 2 , June 2014 , pp. 479 - 493
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 Please note that this is topic continues to develop, and this article has not taken into account events occurring after the 11 September 2013.

2 Djokaba Lambi Longa v. The Netherlands, Decision of 9 October 2012, Application No. 33917/12, at para. 38.

3 For a more detailed procedural history, see for witnesses in Katanga: Prosecutor v. Katanga and Ngudjolo Chui, Decision on an Amicus Curiae application and on the ‘Requête Tendant à Obtenir Présentations des Témoins DRC‐D02‐P‐0350, DRC‐D02‐P‐0236, DRC‐D02‐P‐0228 aux Autorités Néerlandaises aux Fins dʹAsile’ (Arts. 68 and 93(7) of the Statute), ICC‐01/04‐01/07-3003-tENG, Trial Chamber II, 9 June 2011, at paras. 1-16. For the witness in Lubanga: Prosecutor v. Thomas Lubanga Dyilo, Redacted Decision on the request by DRC-DOl-WWWW-0019 for special protective measures relating to his asylum application, ICC-01/04-01/06-2766-Red, 5 August 2011, at paras. 1–14. For additional detail, see van Wijk, J., ‘When International Criminal Justice Collides with Principles of International Protection: Assessing the Consequences of ICC Witnesses Seeking Asylum, Defendants being Acquitted and Convicted being Released’, (2006) 26 LJIL 1, at 173–191Google Scholar.

4 Art. 93(7):

(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:

  1. (i)

    (i) The person freely gives his or her informed consent to the transfer; and

  2. (ii)

    (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.

(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.

5 See ICC-01/04-01/07-3003, supra note 3 at paras. 79–85; Prosecutor v. Katanga and Ngudjolo Chui, Decision on the Urgent Request for Convening a Status Conference on the Detention of Witnesses DRC-D02-P-0236, DRC-D02-P-0228, and DRC-D02-P-0350, ICC-01/04-01/07-3254, 1 March 2012 at paras. 17–21.

6 See ibid. ICC-01/04-01/07-3003 at para. 73; see ICC-01/04-01/06-2766-Red, supra note 3 at para. 86.

7 See supra note 2, at para. 22.

8 Ibid.

9 This step followed a number of proceedings before Dutch courts. For details see supra note 2, at paras. 27–31.

10 For more detail on the Trial Chamber's opinion on this issue, see supra note 2, paras. 10–24.

11 Ibid., at para 38.

12 See supra note 2, at para. 61. This principle is stated in a number of other cases which deal with Art. 1.

13 Galić v. The Netherlands, Decision of 9 June 2009, Application No. 22617/07.

14 Blagojević v. The Netherlands, Decision of June 2009, Application No. 49032/07.

15 Behrami and Behrami v. France; Saramati v. France, Germany and Norway, Decision of 2 May 2007, Application No. 78166/01, at 149

16 Berić and Others v. Bosnia and Herzegovina, Decision of 16 October 2007, Application Nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05, and 25496/05

17 See supra note 13, at paras. 39 and 46; see supra note 14, at paras. 39 and 46.

18 See supra note 15, at para. 151. See also Lock, T., ‘Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights’, (2010) 10 (3)Human Rights Law Review 529CrossRefGoogle Scholar.

19 No dependence in the legal sense that the prosecutor can initiate proceedings without its consent. No comment is made here on the political relationship between the two.

20 Sarooshi, D., ‘The Statute of the International Criminal Court’, (1999) 48 (2)The International and Comparative Law Quarterly 387, at 390CrossRefGoogle Scholar.

21 See supra note 17.

22 Mayerfeld, J., ‘Who Shall Be Judge?: The United States, the International Criminal Court, and the Global Enforcement of Human Rights’, (2003) 25 Human Rights Quarterly 93, at 98CrossRefGoogle Scholar. See also Gradoni, L., ‘International Criminal Courts and Tribunals: Bound by Human Rights Norms . . . or Tied Down?’, (2006) 19 LJIL 847CrossRefGoogle Scholar; Cassese, A., ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’, (1997) 4 EHRLR 329Google Scholar.

23 Art. 1: The Purposes of the United Nations are:

(3) To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

24 2010, Treaty on the European Union, OK 2010 C83/01), Art. 2:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

25 See supra note 16, at para. 29.

26 Fehl, C., ‘Explaining the International Criminal Court: A “Practice Test” for Rationalist and Constructivist Approaches’, (2004) 10 European Journal of International Relations 357, at 369CrossRefGoogle Scholar.

27 See supra note 16, at para. 29. See generally Ryngaert, C., ‘The European Court of Human Rights’ Approach to the Responsibility of Member States in Connection with Acts of International Organisations’, (2011) 60 (4)International and Comparative Law Quarterly 997CrossRefGoogle Scholar.

28 UN Doc. S/Res/1031 (1995).

29 See supra note 16, at para. 26.

30 Ibid.

31 Cooperatieve Producentenorganisatie Van De Nederlandse Kokkelvisserij U.A. v. The Netherlands, Decision of 20 January 2009, Application No. 13645/05, at 18.

32 For more detail on the other decisions, see supra note 2 at paras. 27–31 and J. van Wijk, supra note 3, at 175–6.

33 For the English translation of this case, see supra note 2, paras. 26 and 33.

34 Supra note 2, at para. 62.

35 Supra note 2, at paras. 81–3.

36 Case of Ilascu and Others v. Moldova and Russia, Judgment of the 8 July 2004, Application No. 48787/99.

37 Ibid., at para. 313 (emphasis added).

38 See supra note 2, at para 38.

39 Case of Bosphorus Hava Yollari TuriïZm Ve TiïCaret AnoniïM ŞIïRketiï v. Ireland, Judgment of the 30 June 2005, Application No. 45036/98.

40 See also the case of Waite and Kennedy v Germany, Judgment of 18 February 1999, Application No. 26083/94.

41 Ibid., at paras. 155–6. See also Costello, C., ‘The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe’, (2006) Human Rights Law Review 87Google Scholar; Lock, supra note 18; and Ryngaert supra note 27.

42 Supra note 2, at paras. 79–80.

43 The most pertinent section of Art. 68 is para. 1, which requires the Court to ‘take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’.

44 See Katanga, supra note 3, at paras. 59–62.

45 Case of Othman (Abu Qatada) v. The United Kingdom, Judgment of 17 January 2012, Application No. 8139/09, at para 189.

46 Ibid.

47 For a detailed exposition of the different policy concerns relating to the asylum claims of the witnesses, see J. van Wijk, supra note 3.

48 Schabas, W., ‘Synergy or Fragmentation? International Criminal Law and the European Convention on Human Rights’, (2011) Journal of International Criminal Justice 609, at 610Google Scholar.

49 J. van Wijk, supra note 3, at 182–3.

50 Soering v. United Kingdom, Judgment of the 7 July 1989, Application No. 14038/88

51 Chahal v. United Kingdom, Judgment of 15 November 1996, Application No. 22414/93.

52 The Netherlands (Ministry of Foreign Affairs and Ministry of Security and Justice) v. Respondent 1, Respondent 2, and Respondent 3, Interim Appeal, Case No. 200.114.941/01, ILDC 1966 (NL 2012), 18 December 2012.