The relation between human rights norms and given bodies of rules of international criminal procedure is typically not one of direct entailment. Human rights principles are in most cases compatible with more than one cluster of procedural rules. At a very general level, the relationship may be aptly described as one between ends and means, where full respect of human rights may be achieved through a variety of procedural solutions. While human rights norms are not strictly speaking rules of international criminal procedure, they have nonetheless a considerable impact on the way in which those rules are defined, interpreted, and applied. This study is concerned with the structural dimensions of this relationship, as they are revealed in the practice of international criminal courts and tribunals. Its main finding is that the formula contained in Article 21(3) of the ICC Statute effectively condenses the meaning of the practice generally followed by the international criminal courts and tribunals in characterizing the relationship between international criminal procedure and human rights law. On the one hand, the formula aptly reflects the lex superior status of human rights obligations within the tribunals’ legal systems. On the other hand, by stating the duty to interpret and apply the law in accordance with internationally recognized human rights, it sets out in concise form the triple function that human rights norms perform. Recourse to interpretation as a conflict-avoidance technique is logically required by the lex superior status of fundamental rights. The concept of ‘application’ encapsulates the duty to set aside procedural rules incompatible with human rights law as well as the positive obligation of conducting the proceedings in such a way that protection of fundamental rights is made effective (the power-conferring function). Finally, reference to ‘internationally’ recognized human rights (as opposed to generally recognized ones) adequately fits the network-like structure of authority that characterizes human rights law and jurisprudence.
Gradoni L. (2013). The Human Rights Dimension of International Criminal Procedure. OXFORD : Oxford University Press.
The Human Rights Dimension of International Criminal Procedure
GRADONI, LORENZO
2013
Abstract
The relation between human rights norms and given bodies of rules of international criminal procedure is typically not one of direct entailment. Human rights principles are in most cases compatible with more than one cluster of procedural rules. At a very general level, the relationship may be aptly described as one between ends and means, where full respect of human rights may be achieved through a variety of procedural solutions. While human rights norms are not strictly speaking rules of international criminal procedure, they have nonetheless a considerable impact on the way in which those rules are defined, interpreted, and applied. This study is concerned with the structural dimensions of this relationship, as they are revealed in the practice of international criminal courts and tribunals. Its main finding is that the formula contained in Article 21(3) of the ICC Statute effectively condenses the meaning of the practice generally followed by the international criminal courts and tribunals in characterizing the relationship between international criminal procedure and human rights law. On the one hand, the formula aptly reflects the lex superior status of human rights obligations within the tribunals’ legal systems. On the other hand, by stating the duty to interpret and apply the law in accordance with internationally recognized human rights, it sets out in concise form the triple function that human rights norms perform. Recourse to interpretation as a conflict-avoidance technique is logically required by the lex superior status of fundamental rights. The concept of ‘application’ encapsulates the duty to set aside procedural rules incompatible with human rights law as well as the positive obligation of conducting the proceedings in such a way that protection of fundamental rights is made effective (the power-conferring function). Finally, reference to ‘internationally’ recognized human rights (as opposed to generally recognized ones) adequately fits the network-like structure of authority that characterizes human rights law and jurisprudence.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.