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The International Criminal Court and "Internationally Recognized Human Rights": Understanding Article 21(3) of the Rome Statute

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Article 21(3) of the Rome Statute requires that the law applied by the ICC be interpreted and applied in accordance with "internationally recognized human rights." Notwithstanding its paramountcy over other sources of law, Article 21(3) has yet to receive satisfactory consideration and analysis by the Court. In constructing a principled framework for how international human rights should operate within the applicable law of the Court, certain principles serve as important guideposts: rules of statutory interpretation, the complementarity principle, the structure of international human rights law, and principles of international legal personality. Relying on these principles, the Court's jurisprudence and the Statute's travaux préparatoires, it is possible to map out some of the features of Article 21(3). The Article is not merely a rule of interpretation, but is generative of powers and remedies that would otherwise not be available. However, in order to be applied rationally, the scope of "internationally recognized human rights" should be contingent on which state would ordinarily exercise jurisdiction over a prosecution. The institutional relationships between The Court, state parties, and other bodies that interpret and apply human rights norms should also influence how the Court applies these principles, with decisions of international human rights courts being prima face binding in certain circumstances.

Affiliations: 1: Court of Appeal for Ontario, Canada


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