The Authority of Strasbourg Jurisprudence from the Perspective of the International Criminal Court

Although the case law of the European Court of Human Rights (Eur. Ct. H.R.) exerts a critical influence on the development of the practice of the International Criminal Court (ICC), it remains unclear what the exact authority of such external jurisprudence is vis-à-vis the international criminal judge. This article addresses 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 the Court’s 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 value it simply left unspecified. It therefore concludes that the ICC has been mostly inconsistent regarding the authority of the case law of the Eur. Ct. H.R. in the context of international criminal proceedings. Such inconsistency, it is argued, amounts to a discretionary use of Strasbourg jurisprudence that further reinforces the ICC’s paradoxical position as the ultimate authority for defining the boundaries of its own human rights constraint.