The Discretionary Use of Strasbourg Jurisprudence by the International Criminal Court

Although the case law of the European Court of Human Rights ("ECtHR") has had and still shows critical influence on the development of the practice of the International Criminal Court ("ICC"), it remains unclear what the authority of such external jurisprudence is vis-à-vis the international criminal judge. While it is virtually undisputed that human rights law, in general terms, is applicable to proceedings before the ICC, many scholars tend to adopt a much nuanced approach to the authority of human rights case law in particular. This paper aims to shed further light on the issue by addressing the question whether ICC judges have used Strasbourg jurisprudence in a consistent manner, in particular as regards the authority which they decided to vest the latter with. It demonstrates that ICC Chambers have relied on European human rights practice, alternatively, as a mere source of inspiration, as binding interpretation, as a corpus having ambivalent authority, or as a source whose legal value it simply left unspecified. This leads us to conclude that, on the whole, the ICC has been mostly inconsistent regarding the value of ECtHR case law in the context of international criminal proceedings. Such inconsistency, we argue, amounts to a discretionary use of Strasbourg jurisprudence that further reinforces the Court's paradoxical position as the ultimate authority for defining the boundaries of its own human rights constraint.