Operation Condor


V. Elements for an approximation to the complementarity between international human rights law and international criminal law



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V. Elements for an approximation to the complementarity between international human rights law and international criminal law
34. There are elements that lead to an approximation to the complementarity between international human rights law and international criminal law that have been insufficiently dealt with by legal doctrine to date. In this regard, I wish to identify five elements that I will examine below: (a) the international legal status of the individual; (b) the complementarity between the international responsibility of the State and that of the individual; (c) the conceptualization of crimes against humanity; (d) prevention and guarantee of non-repetition; and (e) reparatory justice in the confluence of international human rights law and international criminal law.
1. The international legal status of the individual
35. The first element for an approximation in the complementarity between international human rights law and international criminal law is, in my opinion, the individual in his legal capacity as both an active (international human rights law) and a passive (international criminal law) subject of international law; that is, as the possessor of rights and bearer of obligations that arise directly from international law. The condition of the individual as such represents, as I have indicated in numerous writings, the most precious legacy of juridical science as of the middle of the twentieth century.28
36. Indeed, the permanent International Criminal Court (ICC) represents an advance in relation to the ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda, as regards, in particular, the presence and participation of the victims during the proceedings (Rome Statute, Articles 68 and 75, and Rules of Procedure, rules 16, 89 and 90-93).29 A Victims and Witnesses Unit has been established within the ICC Registry (Statute, Article 43(6), and Rules of Procedure, rules 16-19).30 In addition, the creation of a Trust Fund for the benefit of victims was ordered (Statute, Article 79, and Rules of Procedure, rule 98),31 and this was established by decision of the Assembly of the States Parties of December 3, 2005.32
37. The presence of the victims in the proceedings before the ICC represents, I believe, a significant point of confluence between contemporary international criminal law and international human rights law. This is no longer merely punitive justice, but also reparatory justice (Rome Statute, Article 75), establishing different forms and means of reparation (ICC Rules of Procedure, rule 98),33 both individual and collective. It is not surprising that, in its first rulings – in the Th. Lubanga Dyilo case and the investigation of the situation in the Democratic Republic of the Congo34 - the ICC has referred expressly to the rich case law of the Inter-American Court.35 International human rights law and contemporary international criminal law can provide mutual reinforcement, to the ultimate benefit of the individual.
38. The consolidation of the legal status of the individual in international criminal law, as an active and passive subject of international law strengthens accountability under international law for abuses perpetrated against the individual. Thus, individuals are also bearers of obligations under international law, which is reflected in the consolidation of their international legal status.36 Developments in international legal status and international responsibility occur pari passu, and this whole evolution testifies to the formation of the opinio juris communis to the effect that the gravity of certain fundamental human rights directly affects basic values that are shared by the international community as a whole.37



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