References to human rights law in the interpretation and application of the definitions of crimes by the international criminal tribunals

Abstract

This thesis examines the approaches of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court to the interpretation and application of the definitions of genocide, war crimes and crimes against humanity in light of human rights law. This is done through the clarification of the concept of international human rights crimes. It is argued that the positive law definition of a criminal act must have an overt renvoi to human rights law in order to be regarded an international human rights crime. Such a renvoi can be explicit, implicit, terminological, open-ended or interest-based. It ascertains the amount of discretion for judicial reference to human rights law: from the largest in the case of an explicit renvoi, to the smallest in the case of an interest-based renvoi where the structural differences between international criminal law and human rights law are the most tangible. War crimes do not constitute international human rights crimes. Genocide might be regarded an international human rights crime only in the most abstract form. All crimes against humanity have at least an interest-based renvoi. In this thesis, meticulous attention is paid to their contextual elements and the selected actus rei: imprisonment, other inhumane acts, persecution, torture, rape, enslavement and sexual slavery. The interpretive framework for judicial reference to human rights law consists of the rules of interpretation under the Vienna Convention on the Law of Treaties as qualified by the principle of legality, which is argued to be lex specialis. In addition, Article 21(3) of the Rome Statute obliges the International Criminal Court to interpret and apply the law consistently with internationally recognised human rights and without discrimination. Finally, this thesis concludes with a normative critique of the international criminalisation of human rights violations.