ANALYSE-. In the light of new judicial progress such as the prosecution of international war criminals like the former Chadian President Hissène Habré or the investigation of alleged war crimes in Syria by the Assad’s regime, the CIPADH has asked Mauro Politi, a renowned Professor in International Humanitarian Law (IHL), to give his insight on the integration of human rights and IHL within the International Criminal Court Statute.
That today’s international community and world public opinion are pervaded by an increasing awareness of human rights values is a fact which can hardly be denied. Nonetheless, we continue to witness blatant violations of fundamental rights of the individuals in many parts of the globe. If we think of ISIS, the trafficking in persons and migrants, terrorism, the attacks against civilians and cultural heritage, gender crimes etc., one may conclude that, despite the efforts to adapt the legal regimes to fight these conducts, what is taking place is a sort of race, of competition between the process of setting more stringent rules and a new intensity and new forms of infringements of basic human rights.
On the other hand, developments and progress in law-making remain considerable and touch upon not only human rights stricto sensu, but also what is referred to as “international humanitarian law”, (IHL),namely the body of law which regulates the conduct of military operations, and is especially meant to protect those who cannot actively take part in the conflict, primarily the civilian population. One of the main achievements in these areas is the establishment of international tribunals to prosecute and punish the most serious crimes (genocide, war crimes, crimes against humanity) committed during (international or non-international) conflicts or in time of peace. The ad hoc Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), as well as the International Criminal Court (ICC) are example of these tribunals dealing with individual criminal responsibility for the gravest violations of IHL. But one should also mention a number of so-called “hybrid” tribunals (for East Timor, Cambodia, Sierra Leone, Lebanon), entrusted with the same mandate and characterized by a mixed composition (of both internationally appointed and domestic judges).
However, looking at the mandate and activity of the said tribunals, especially the ICC, it appears evident that nowadays the traditional distinction between human rights law and IHL tends to be blurred. It is well-known that in recent years the gravest violations of human rights occur during armed conflicts, in particular internal or non-international armed conflicts: in other words, those especially affecting the civilian population and the rights of the individuals (the right to life, to food, to shelter, to sexual freedom). And, at present, the international tribunals are dealing almost exclusively with crimes committed during internal conflicts (for example, with reference to the ICC, in the Democratic Republic of the Congo, Uganda, Libya, Central African Republic, Sudan-Darfur). Moreover, one of the categories of core-crimes made subject to international criminal justice is that of “crimes against humanity”: a notion that relate not only to conducts that may take place also in times of peace, but presupposes a “widespread or systematic attack” against the civilian population. If we consider the various figures of crimes against humanity listed in article 7 of the ICC Statute (murder, torture, enslavement, enforced disappearance, etc.) the link with egregious violations of human rights norms (those provided, inter alia, by the 1966 UN Covenants and by regional human rights conventions such as the European and Inter- American Conventions) is even clearer. It can then be argued that in the process of mutation and advancement of a comprehensive legal system aimed at protecting fundamental human rights, one of the main characteristics is the inclusion of those mechanisms of international criminal justice that are typical of the current framework of international humanitarian law.
Other aspects of the ICC regime are equally relevant in this perspective. First, the importance attributed by a number of provisions in the ICC Statute to respect for due process and the rights of the accused. These are fundamental guarantees recognized also by international human rights instruments such as the 1966 Covenant on Civil and Political Rights (articles 9 and 14). Secondly, one of the key features of the ICC Statute is victims’ participation in the proceedings before the Court and the right to receive reparation for damage suffered as a result of the crimes. This is an absolute novelty for international criminal justice and an element that underlines the likely emerging of a new category of human rights, that would include a “right to justice”, or ”to be heard” before a court of law in the search for truth and moral recognition. Thirdly, according to article 21 of the ICC Statute, the application and interpretation of the law must be “consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender……..age, race, colour, language, religion or belief, political or other opinions, national, ethnic or social origin, wealth, birth or other status.” This means that whenever the ICC Chambers find that the application of a provision of the Statute would be inconsistent with fundamental human rights, these latter principles will have to prevail over the rules of the constituent instrument of the Court. In this case, the need to reconcile IHL rules with human rights norms could not have been spelled out more clearly.
In conclusion, the Statute of the International Criminal Court provides a striking example of an ongoing process aimed at integrating human rights and international humanitarian law into a coherent body of rules and principles to protect fundamental rights and the dignity of every person.