Judicial Dialogue between International Criminal Tribunals and the European Court of Human Rights

The issue of the interplay between international criminal tribunals and human rights bodies has frequently emerged in academia as well as in the case law. The various fields of international law have become increasingly intertwined, and this process has manifested itself in the ‘gradual interpenetration and cross-fertilization of previously somewhat compartmentalised areas of international law’. This wider phenomenon is especially reflected in the field of international criminal law, which appears as a vivid demonstration of the cross-fertilization practice, since its normative content is often drawn from other fields of law, including international human rights law, international humanitarian law, as well as domestic criminal law and procedure. Particularly in the area of the implementation of human rights standards, there are strong connections between ICTs and human rights bodies.

This interaction has been particularly apparent in the progressive emergence of a practice of cross-referencing between ICTs and the ECtHR. Whereas the ECtHR has (sporadically) made use of the jurisprudence of ICTs, most of the references originate from the ICTs, which have frequently resorted to the European Court’s dicta in order to elucidate the definition, scope and application of human rights. The areas of law where these human rights norms have been invoked, re-interpreted and applied include, inter alia, the right to freedom of expression, nullum crimen sine lege, the right not to be subject to inhumane or degrading treatment, fair trial rights, the right to an effective remedy, sentencing and pre-trial detention, the right to remain silent, self-representation, and ne bis in idem.

The common argument that Dr Mariniello’s research Project seeks to challenge is that cross-fertilization between ICTs and the ECtHR is bound (or at least likely) to produce positive effects. The very notion of ‘fertilising’ a different field, rather than a neutral designation, ascribes an immediately positive connotation to the process of transplantation. Still, this optimistic understanding seems to be grounded in prima facie sensible, though as yet unsupported and unverified, premises. This Project finds said that the positive discourse about cross-referencing by ICTs is yet to be grounded on solid research and risks being rhetorical.

Indeed, a number of crucial questions concerning the use of human rights jurisprudence by ICTs remain mostly unaddressed in the literature. For example, are there discrepancies in the interpretation of the same right by the ECtHR and ICTs? If so, can such discrepancies be justified by institutional differences or other legitimate circumstances? What methodologies can be used to enable a more accurate, and potentially justiciable, appraisal of the process of transplantation of external legal notions? What are the parameters that may legitimise a re-interpretation (or ‘translation’) of ECHR standards in relation to the ‘unique’ context of international(ised) courts adjudicating serious international crimes? Is there a ‘common grammar’ of inter-systemic referencing emerging in international criminal justice which could be used to assess practices of (non-)cross-referencing, (non-)engage-ment, dismissal or endorsement, with respect to human rights courts’ jurisprudence?

This Project shows how a critical reading of the interactions between human rights law and ICTs’ jurisprudence cannot continue to support a purely positive understanding of transjudicial ‘dialogue’. Given the breadth of potentially relevant case law, the study is restrained to the most frequent direction in which the cross-referencing has taken place: the use that ICTs have made of the ECtHR’s jurisprudence. The collaborative research Project also seek to develop a coherent methodology of cross-referencing. Such a methodology can be used to objectively scrutinise ICTs’ practice of importation of human rights concepts from external sources and will help strengthen judicial reasoning and make it more transparent, accessible, and foreseeable.

Publications

Lobba, P. & Mariniello, T. (eds) (2017), Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals, Martinus Nijhoff

Lobba, P. & Mariniello, T, ‘The Grammar of the Judicial Dialogue between International Criminal Tribunals and the European Court: Introductory Remarks’, in Lobba & Mariniello (eds), Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals, Martinus Nijhoff, 1-10

Mariniello, T. & Lobba, P., (2015) ‘The Cross-Fertilization Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals’, Editorial of the Special Issue, 84(3) Nordic Journal of International Law 363-369.

Mariniello, T. & Lobba, P. (eds), The Cross-Fertilization Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals, Special Issue, (2015) 84(3) Nordic Journal of International Law 363-531