The Relationship between the International Criminal Court and its Host State: The Impact on Human Rights

Abstract

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 as to when when such curtailment should 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. These two courts 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 into account 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 of Human Rights could learn. Ultimately the two decisions give contrasting interpretations of the relationship between the ICC and its host state, which could have wider ramifications.

The International Criminal Court

“…The result was a conflict of law that was not contemplated by the Headquarters Agreement, as the Government of the Netherlands and the International Criminal Court each believed the other had jurisdiction over the witnesses. Netherlands (Irving 2014). After two years in detention, the Netherlands eventually denied the witnesses asylum and returned them to the Democratic Republic of the Congo because they might have been complicit in serious crimes.…”