The Relationship between the International Criminal Court and its Host State: Impact on Human Rights
SHARES Research Paper 29 (2014), ACIL 2014-02
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Published in: (2014) 27(2) Leiden Journal of International Law 479 - 493.
When an international criminal tribunal establishes its headquarters in a State, its legal relationship with that State must be carved out. This legal relationship has the potential to exclude the applicability of human rights protection by curtailing the host State’s jurisdiction in parts of its territory. Despite this, there is little clarity on when such curtailment would arise. This problem is illustrated by the situation regarding witnesses at the International Criminal Court, which has recently been the subject of decisions of The Hague District Court and of the European Court of Human Rights. Both disagree on the threshold at which the human rights issues engaged by the situation are brought under the jurisdiction of the Netherlands. This article submits that the European Court in Djokaba Lambi Longa v The Netherlands set the threshold for jurisdiction under the Convention too high. In applying easily distinguishable previous case law, and failing to take account of all relevant facts, the Court’s finding of inadmissibility is unconvincing. The Dutch Court on the other hand took a broader approach from which the European Court could learn. Ultimately the two decisions give contrasting interpretations of the relationship between the ICC and its host State, which could have wider ramifications.