The Interpretation of Article 21 (3) ICC Statute1 Opinion Reviewed

Austrian Review of International and European Law

Volumn 9, Issue , 2006, Pages 163-190

  Hafner, Gerhard ^a   Binder, Christina ^a  

^a UNIVERSITY OF VIENNA   (Austria)

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EID: 85183373075     PISSN: 13851306     EISSN: None     Source Type: Book Series    
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References (109)

1. This contribution presents the reviewed version of an Opinion delivered to the International Criminal Court (ICC) on 19 December 2004 upon a request of the Office of the Prosecutor to submit a comment on the interpretation and scope of article 21 (3) of the Rome Statute of the ICC (also: Rome Statute, ICC Statute).
2. Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, available at http://www.un.org/law/icc/statute/romefra.htm.
3. See A. Pellet, "Applicable Law", in A. Cassese, P. Gaeta, J. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. II 1051 (2002)
4. M. McAuliffe deGuzman, "Article 21. Applicable law", in O. Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court 435, at 445 (1999);
5. K. Gallant, "Individual Human Rights in a New International Organization: The Rome Statute of the International Criminal Court", in M. C. Bassiouni (Ed.), International Criminal Law 693 (1999);
6. I. Caracciolo, "Applicable Law", in F. Lattanzi, W. Schabas (Eds.), Essays on the Rome Statue of the International Criminal Court 111 (1999);
7. M. Arsanjani, "The Rome Statute of the International Criminal Court", in: 93 AJIL 22, at 28-29 (1999);
8. G. Edwards, "International Human Rights Law Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy", in: 26 Yale Journal of International Law 323 (2001).
9. Art. 21 ICC Statute: "1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards."
10. This equal ranking of the Statute and the Elements of Crimes is, however, subject to Art. 9 ICC Statute.
11. See McAuliffe deGuzman, supra note 3, at 438.
12. The Statutes contain however human rights provisions especially tailored to criminal proceedings (i.e. Art. 20ICTY Statute: Commencement and conduct of trial proceedings; Art. 21 ICTY Statute: Rights of the accused).
13. See A. Reinisch, „Das Jugoslawien-Tribunal der Vereinten Nationen und die Verfahrensgarantien des II. VN-Menschenrechtspaktes. Ein Beitrag zur Frage der Bindung der Vereinten Nationen an nicht ratifiziertes Vertragsrecht. The UN Tribunal for Yugoslavia and the Procedural Guarantees of the ICCPR. In re Binding Effect of Non-Ratified Treaty Law for the UN", in 47 Austrian Journal of Public and International Law 173 (1995).
14. Reinisch argues the Tribunal's "implied duty" to respect human rights as promulgated by the Charter itself. In fact, as according to Art. 103 UN Charta obligations under the Charter override treaty obligations, only human rights obligations arising from subsequent or more special customary international law or general principles could theoretically trump the Statute in application of the lex specialis and the lex posterior principle. The applicability of this exception appears nonetheless extremely limited. For further details, see G. Hafner, "Limits to the Procedural Powers of the International Tribunal for the Former Yugoslavia", in K. Wellens, International law: theory and practice: essays in honour of Eric Suy 651, at 658 (1998). In any case, as the ICC Statute is a "normal treaty" which does not contain a provision similar to Art. 103 UN Charter, the comparison with the Statute of the ICTY is of limited value.
15. Prosecutor v. Dusko Tadic, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, IT-94-1-T, T.Ch. II, 10 August 1995, at para. 25.
16. th Session, Draft Statute for an International Criminal Court, 2 May-22 July, 1994, GA Official Records Suppl. No. 10 (A/49/10).
17. Report of the Inter-Sessional Meeting from 19 to 30 January 1998 held in Zutphen, The Netherlands, A/AC.249/1998/L. 13 (1998), at 63. Footnote 117 notes support for a proposal stating: "The application and interpretation of the general sources of law must be consistent with international human rights standards and the progressive development thereof, which encompasses the prohibition on adverse discrimination of any kind, including discrimination based on gender". At that point in time it was still undecided, however, whether the reference to human rights should be included in the provision "Applicable Law" (Art. 14[33], now Art. 21) or in Part 3 "General Principles of Applicable Law".
18. Gallant, supra note 3, at 703.
19. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act, A/Conf.183/2 Add.l(1998), Art. 20, at 56. (Note that Art. 20 became Art. 21 in the Rome Statute).
20. th meeting, 23 June 1998, A/CONF/C.1/SR.12, A/CONF/C.1/SR.13, Art. 20, Applicable Law, at 221-224. See also McAuliffe deGuzman, supra note 3, at 445-446.
21. On 26 December 2000 Egypt declared upon signature of the ICC Statute: "[...] 2. The Arab Republic of Egypt affirms the importance of the Statute being interpreted and applied in conformity with the general principles and fundamental rights which are universally recognized and accepted by the whole international community and with the principles, purposes and provisions of the Charter of the United Nations and the general principles and rules of international law and international humanitarian law [...]". (Available at http://www.un.org/law/icc/statute/status.htm).
22. As to Belgium's declaration concerning Art. 31(l.c) ICC Statute: "Pursuant to Art. 21, para. 1 (b) of the Statute and having regard to the rules of international humanitarian law which may not be derogated from, the Belgian Government considers that Art. 31, para. 1 (c), of the Statute can be applied and interpreted only in conformity with those rules." (Declaration made upon ratification of the ICC Statute, the 28 June 2000, available at http://www.un.org/law/icc/statute/status.htm).
23. Colombia made the following declaration upon ratification, the 5 August 2002: "[...] Colombia declares that the provisions of the Statute must be applied and interpreted in a manner consistent with the provisions of international humanitarian law and, consequently, that nothing in the Statute affects the rights and obligations embodied in the norms of international humanitarian law, especially those set forth in Art. 3 common to the four Geneva Conventions and in Protocols I and II Additional thereto. Likewise, in the event that a Colombian national has to be investigated and prosecuted by the International Criminal Court, the Rome Statute must be interpreted and applied, where appropriate, in accordance with the principles and norms of international humanitarian law and international human rights law. [...]". (Available at http://www.un.org/law/icc/statute/romefra.htm).
24. See infra, Sections III.B.3 and IV.A.
25. Pellet, supra note 3, at 1076-1082.
26. Pellet, supra note 3, at 1079-1080.
27. In this context, Pellet also refers to ius cogens. "One cannot help but think, in this respect, of peremptory norms of general international law', as defined in Art. 53 of the Vienna Convention on the Law of Treaties." (Pellet, supra note 3, at 1080-1081).
28. Arsanjani, supra note 3, at 29.
29. This opinion proceeds from the view that Art. 31 VCLT reflects existing customary international law so that there is no need to examine the application of the VCLT to the ICC Statute. The text of the VCLT is available at http://www.un.org/law/ilc/texts/treaties. htm.
30. ILC, Report of the Study Group on Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, 56th Session, Geneva 3 May-4 June 2004 and 5 July-6 August 2004, A/CN.4/L.663/Rev.l, at para. 52.
31. Appellate Report United States - Import Prohibition of Certain Shrimp and Shrimp Products, adopted 12 October 1998, AB-1998-4, WT/DS58/AB/R, at paras. 130 and 128.
32. Iran-US Claims Tribunal, Esphahanian v. Bank Tejarat, 29 March 1983, in: 2 Iran - USCTR (1983) 157, at 161-168; Case No A/18, 6 April 1984, in: 5 Iran-USCTR (1984) 251, at 260-266.
33. For further information see A. Cassese, "The impact of the European Convention on Human Rights on the International Criminal Tribunal for the former Yugoslavia", in Mahoney et al. (Eds.), Protecting Human Rights: The European Perspective. Studies in memory of Rolv Ryssdal 213, at 218 and 236 (2000).
34. Prosecutor v. Zejnil Delalic Mucic et al., Provision on motion for provisional release filed by the accused Zejnil Delalic, No. IT-96-21-T, T.Ch. II, 25 September 1996, at paras. 19-26.
35. Prosecutor v. Dusko Tadic, supra note 9, at paras. 32-33 and 38.
36. For more information, see Cassese supra note 27, at 220-224.
37. Prosecutor v. Dusko Tadic, supra note 9, at paras. 26-27.
38. This competence is based on Art. 21(2) ICC Statute: "The Court may apply principles and rules of law as interpreted in its previous decisions".
39. Gallant, supra note 3, at 703-704.
40. Gallant, supra note 3, at 704.
41. For further details, see infra Section IV.
42. Preamble to the Rome Statute, supra note 2.
43. ILC Report, supra note 24, at para. 52.
44. Caracciolo states: "Paras. 2 and 3 deal with the criteria for interpretation which the Court may or must follow in the exercise of its jurisdiction." (Caracciolo, supra note 3, at 224-225).
45. Gallant for instance states: "Art. 21(3) explicitly adopts an equal protection principle, prohibiting discrimination in the definition of crimes and defenses as well as in application of procedures." (Gallant, supra note 3, at 702, emphasis added).
46. See for instance, Edwards, supra note 3. In many cases, the ICC Statute contains actually quite specific norms and standards: i.e. Art. 55 details the rights of persons during an investigation; Art. 67 outlines the rights of the accused; Art. 68 deals with the protection of victims and witnesses. Some of these provisions are inspired by general human rights provisions. For instance, Art. 55(1.d) ICC Statute relies on Art. 9(1) CCPR when stating "[...] a person [...] [s]hall not be subjected to arbitrary arrest or detention; and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute".
47. C. Kress/G. Sluiter, "Imprisonment", in A. Cassese, P. Gaeta, J. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. II 1757, at 1812 (2002).
48. Actually, the primary interest of this discussion is an academic one. It appears very unlikely that the ICC Statute itself would contradict human rights. In that sense, having argued the superiority of human rights, also Pellet concludes by stating that the mentioned "super-legality" of internationally recognized human rights, the substantial hierarchy which is laid down in Art. 21 "should have little concrete impact on the implementation of the applicable law". (Pellet, supra note 3, at 1082).
49. As to the WTO Appellate Body "[t]he Panel disregarded the fact that the introductory clauses of Art. XX speak of the 'manner' in which measures sought to be justified are 'applied'. [...] The general design of a measure, as distinguished from its application, is however, to be examined in the course of determining whether that measure falls within one or another of the paras, of Art. XX following the chapeau [...]" (Appellate Report, supra note 25, at paras. 115-116).
50. According to the rules of treaty interpretation laid down in Art. 31(1) VCLT: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
51. For more details, see infra Section IV.
52. Arsanjani, supra note 3, at 29.
53. nd ed., at 36 (2004)).
54. See also Kirsch and Oosterveld who state that "a majority of delegations expressed concern about imposing upon the judges a 'checklist' approach to deciding cases [...]" (P. Kirsch, QC. and V. Oosterveld, "The Post-Rome Conference Preparatory Commission", in A. Cassese, P. Gaeta, J. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. I 93, at 97 (2002)).
55. See Art. 53 VCLT: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. [...]".
56. The ILC cited trade in slaves, piracy and genocide as examples for peremptory norms. (ILC, Draft Articles on the Law of Treaties with Commentaries, 1966 YILC, vol. II187, at 248);
57. The International Court of Justice (ICJ) referred to "principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination" in the context of erga omnes obligations. (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgement, 5 February 1970,1970 ICJ Rep. 4, at 32, paras. 33-34).
58. For further details see for instance L. Hannikainen, infra note 87; See also Cassese's discussion on the peremptory character of the principle of fair and expeditious trial in A. Cassese, International Criminal Law, at 395 (2003).
59. See the declarations of Egypt and Belgium supra, notes 15 and 16.
60. As stated in the Explanatory Note to the Rules of Procedure and Evidence: "The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court [...]". (Available at http://www.icc-cpi.int/library/about/ officialj ournal/basicdocuments/rules(e) .pdf).
61. In this sense, see Gallant, supra note 3, at 702.
62. Caracciolo maintains that the "requirement for the complete respect of human rights is nevertheless extremely important. This is especially true when the Court applies customary international law and treaties existing before the protection of human rights came to be developed at an international level [...]". (Caracciolo, supra note 3, at 229).
63. The major universal human rights treaties (CCPR, CESCR, CERD etc.) have been widely ratified. Furthermore, a number of human rights are recognized part of customary international law. For further detail, see infra Section IV.
64. Gallant, supra note 3, at 702-703.
65. ILC Report, supra note 24, para. 52(c).
66. See for instance GA Res. 56/172 on the Situation of human rights in parts of South-Eastern Europe, in which the GA "6. Urges all parties to condemn ethnic violence and intolerance and to oppose actively, in a manner consistent with internationally recognized human rights standards, advocates or perpetrators of any form of violence [...]" (UN Doc. A/RES/56/172 (2001)); or GA Res. 55/112 on the Situation of human rights in Myanmar where the GA "6. Urges the Government of Myanmar to cease, without delay, all activities aimed at preventing the free exercise of internationally recognized human rights, including freedom of association, assembly, movement and speech [...]". (UN Doc. A/RES/55/112 (2000)).
67. The link between international human rights and the right to development was already established in the Vienna Declaration and Programme of Action (A/CONF. 157/23,12 July 1993, at para. 10) and subsequently taken up in other GA Res. (i.e. Res. on the right to development (UN Doc. A/RES/56/150, at para. 7). However, as the right to development is not fixed in binding universal human rights treaties, it will not be further investigated here.
68. "V. Human rights, democracy and good governance: 24. We will spare no effort to promote democracy and strengthen the rule of law, as well as respectfor all internationally recognized human rights andfundamental freedoms, including the right to development. 25. We resolve therefore: To respect fully and uphold the Universal Declaration of Human Rights; To strive for the full protection and promotion in all our countries of civil, political, economic, social and cultural rights for all; To strengthen the capacity of all our countries to implement the principles and practices of democracy and respect for human rights, including minority rights; To combat all forms of violence against women and to implement the Convention on the Elimination of All Forms of Discrimination against Women; To take measures to ensure respect for and protection of the human rights of migrants, migrant workers and their families, to eliminate the increasing acts of racism and xenophobia in many societies and to promote greater harmony and tolerance in all societies; To work collectively for more inclusive political processes, allowing genuine participation by all citizens in all our countries; To ensure the freedom of the media to perform their essential role and the right of the public to have access to information." (United Nations Millenium Declaration, UN Doc. A/55/L.2 (2000), emphasis added).
69. See for instance, SC Res. 1088 (1996) on the Situation in Bosnia and Herzegovina (UN Doc. S/RES/1088 (1996), at para. 10).
70. When detailing UNMIK's authorities and competences, the Secretary General stated in his report: "In exercising their functions, all persons undertaking public duties or holding public office in Kosovo will be required to observe internationally recognized human rights standards [...]". (Report of the Secretary General, 12 July 1999, UN Doc. S/1999/779, at para. 38).
71. Report of the Secretary General pursuant to para. 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc. S/25704 (1993), at para. 106.
72. The same is true for statements made by other UN-High Commissioners for Human Rights (UNHCHR). For instance, Louise Arbour mentioned the "crucial role it [the UN Commission on Human Rights] has played in defining the legal basis of the human rights machinery that is now driving the enforcement of internationally recognized human rights norms at the international, regional and national levels." (Address of Louise Arbour, the UNHCHR to the informal session of the UN Commission on Human Rights, Geneva, 28 September 2004, available at http://un.op.org/news/article/php?id=568).
73. Speech of 15 June 1998 held at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, available at http://www.un.org/icc/speeches/robinso.htm.
74. Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/ Sub.2/1994/56 (1994), available athttp://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES. 1994.45. En?OpenDocument.
75. UN Expert Seminar, The Practice of Forced Evictions: Comprehensive Human Rights Guidelines on Development-based Displacement, held in Geneva, 11-13 June 1997, available at http://www.hri.ca/uninfo/resolutn/forced-evictions.shtml.
76. "The participating States reaffirm that a state of public emergency [...] may not be used to subvert the democratic constitutional order nor aim at the destruction of internationally recognized human rights and fundamental freedoms. [...]". (CSCE, Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 10 September - 4 October 1991, at para. 28.1, available at http://www.osce.org/docs/english/1990-1999/hd/mosc91e.htm).
77. The participating States stated that "[...] the exercise of this right [to the protection of private and family life, domicile, correspondence and electronic communications] will be subject only to such restrictions as are prescribed by law and are consistent with internationally recognized human rights standards [...]". (Ibid., at para. 24).
78. "22. Under Art. 1.3 of the above Regulation [UNMIK/REG/1999/1 (On the Authority of the Interim Administration in Kosovo), 25 July 1999, amended by UNMIK/REG/2000/54, 27 September 2000] in exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards, as reflected in particular in: The Universal Declaration on Human Rights of 10 December 1948; The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Protocols thereto; - The International Covenant on Civil and Political Rights of 16 December 1966 and the Protocols thereto; - The International Covenant on Economic, Social and Cultural Rights of 16 December 1966; The Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965; - The Convention on Elimination of All Forms of Discrimination Against Women of 17 December 1979; - The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment of 17 December 1984; and - The International Convention on the Rights of the Child of 20 December 1989." (European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, no 280, Strasbourg, 11 October 2004, CDL-AD(2004)033; available at http://venice.coe.int/docs/ 2004/CDL-AD(2004)033-e.asp).
79. Amnesty International (AI) presents itself as "a worldwide movement of people who campaign for internationally recognized human rights" and continues: "AI's vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights standards." (Available at the Website of AI, at http://web.amnesty.org/web/web.nsf/print/aboutai-index-eng).
80. Human Rights Watch describes one of its publications as follows: 'This report ["Burma/ Thailand - No Safety in Burma, No Sanctuary in Thailand"] documents the continued systematic violation of internationally recognized human rights by the Burmese military against ethnic minority villagers [...]". (Available at the Website of Human Rights Watch, at http://www.hrw.org/doc/?t=asia_pub&c=burma).
81. "The States Parties to this Protocol, Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights [...]." (Preamble to the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime, adopted and opened for signature, ratification and accession by GA Res. 55/25, 15 November 2000, UN Doc. A/RES/55/25 (2000)).
82. The General Framework Agreement for Peace in Bosnia and Herzegovina, Paris, 14 December 1995, available at http://www.ohr.int/dpa/default.asp?content_id=380.
83. The mentioned Appendix to Annex 6 enumerates the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; the 1949 Geneva Conventions I-IV on the Protection of the Victims of War and the 1977 Geneva Protocols I-II thereto; the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto; the 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto; the 1957 Convention on the Nationality of Married Women; the 1961 Convention on the Reduction of Statelessness; the 1965 International Convention on the Elimination of All Forms of Racial Discrimination; the 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto; the 1966 Covenant on Economic, Social and Cultural Rights; the 1979 Convention on the Elimination of All Forms of Discrimination against Women; the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the 1989 Convention on the Rights of the Child; the 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the 1992 European Charter for Regional or Minority Languages; the 1994 Framework Convention for the Protection of National Minorities. (Available at http://www.ohr.int/dpa/default.asp?content_id=374).
84. As stated before, a closer investigation of the listed treaties indicates that they are tailored to the specific situation in Bosnia and Herzegovina and cannot serve as authentic interpretation of the term "internationally recognized human rights" outside that specific context.
85. Gallant, supra note 3, at 703.
86. See Egypt's declaration supra note 15.
87. See D. Piragoff, "Article 69. Evidence. Paragraph 7", in O. Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court 911, at 913 (1999).
88. In fact, the phrase "internationally protected human rights" is used in the jurisprudence of the ICTY (i.e. Prosecutor v. Zejnil Delalic Mucic et al., Decision on the Tendering of Prosecution Exhibits 104-108, Case IT-96-21, T. Ch., 9 February 1998, at para. 23; for further details, see Edwards, supra note 3, at 374, footnote 222).
89. See Decisions taken by the Preparatory Committee at its Session held in New York 1 to 12 December 1997, A/AC.249/1997/L.9/Rev. 1(1997), at 38, footnote 30; see also Piragoff, supra note 79, at 913.
90. Note that lastly, the reference to internationally "protected" human rights was changed to internationally recognized human rights during the March-April 1998 session of the Preparatory Committee. Thereby, discussions were avoided as to which international human rights were not protected. (See ibid.).
91. Note however Egypt's more restrictive approach in its declaration upon ratification of the ICC-Statute. {See supra note 15).
92. See in this sense also Piragoff: "The qualifier 'internationally recognized' was considered to give sufficient precision but also flexibility for growth and application." (Piragoff, supra note 79, at 913).
93. Schabas, supra note 47, at 93. Also Gallant pleads for a wide interpretation of "internationally recognized human rights" in regard to the definition of crimes: "It would seem that in case of ambiguity, where the issue is whether a charged activity is protected by a human right or within the definition of a crime, the expansive definition of human rights should govern." (Gallant, supra note 3, at 706)
94. L. Hannikainen, for instance, examines the peremptory character of the prohibitions of slavery and slave trade, the prohibition of genocide, the prohibition of discrimination, the taking of hostages and the imposition of collective punishments, the prohibition of torture and the prohibition of arbitrary killings in his book Peremptory Norms (Jus Cogens) in International Law. Historical Development, Criteria, Present Status, at 425-520 (1988). See also supra notes 49 and 50. Note however, that the list of human rights norms classifying as peremptory norms is not unequivocal.
95. See the pronouncement of the ICJ in the North Sea Continental Shelf Cases: "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it." (North Sea Continental Shelf Cases (Denmark/ the Netherlands v. Federal Republic of Germany), Judgment, 20 February 1969, 1969 ICJ Rep. 3, at 44).
96. th ed., 210, at 216-217 (2004)).
97. See also the drafting history of Art. 69(7) ICC Statute, supra Section IV.B. In fact, the drafters wanted to include "internationally protected human rights" with the argument that it covered non treaty standards as well und would therefore be broader than international law. They also considered the requirement of "universal recognition" as too limiting.
98. As already mentioned above, regional standards such as the ECHR and other European human rights treaties, which are cited as "internationally recognized human rights" in the Dayton Peace Agreement and by the Venice Commission, have to be placed in their regional context. (I.e. the former Republic of Yugoslavia was also a party to the ECHR.) The same is true for the jurisprudence of the ICTY, when the tribunal refers to the ECHR and the jurisprudence of the European supervisory organs. (For more details regarding the jurisprudence of the ICTY, see Cassese, supra note 27).
99. Regarding the criteria, which the Presidency of the ICC should apply when deciding on extradition requests on the basis of Art 108 ICC Statute, Kress and Sluiter state: "[...] the Presidency should apply the standard of evolving international human rights law at least to the extent that this standard has been accepted in the ICC Statute. The Presidency should therefore deny a request in case of a possible application of the death penalty by the requesting State or the third State even though it remains open to doubt whether the application of the death penalty is as such a violation of internationally recognized human rights within the meaning of Art. 21(3) of the ICC Statute." (Kress & Sluiter, supra note 41, at 1812-1813).
100. For further reference see the Office of the UNHCHR, available at http://www.ohchr.org/english/law/index.htm.
101. Nowak for instance states: "These three areas of modern international law [human rights law, humanitarian law and refugee law], while closely linked to each other, need to be distinguished systematically." (M. Nowak, Introduction to the International Human Rights Regime, at 38 (2003).
102. Office of the UNHCHR, supra note 93.
103. Office of the UNHCHR, Status of ratifications of the principal international human rights treaties, as of 1 October 2004, available at http://www.ohchr.org/english/bodies/docs/RatificationStatus.pdf.
104. The Optional Protocols to the CCPR, the CEDAW and the CAT will not be examined, as they do not contain substantive rights but rather establish complaints procedures and a system of preventive visits.
105. See Office of the UNHCHR, supra note 97.
106. To further support this argument, a detailed survey of the geographical distribution of States which have ratified these conventions could be undertaken.
107. See supra note 71.
108. nstance, in regard to the CEDAW, far reaching restrictions were pronounced especially by the Islamic States. For example, the Maldives declared upon accession in 1993 that "The Government of the Republic of Maldives will comply with the provisions of the Convention except those which the Government may consider contradictory to the principles of the Islamic Sharia upon which the laws and traditions of the Maldives is founded. Furthermore, the Republic of Maldives does not see itself bound by any provisions of the Convention which obliges to change its Constitution and laws in any manner." (Available at http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm#N43). See also G. Hafner/J. Putzer, "Austrian Diplomatic Practice in International Law/Österreichische Diplomatische Praxis zum Völkerrecht", 1 ARIEL 241, at 256 (1996).
109. Office of the UNHCHR, supra note 93.