Judicial Dialogue on Human Rights

The Practice of International Criminal Tribunals

Judicial Dialogue on Human Rights offers a critical legal perspective on the manner in which international criminal tribunals select, (re-)interpret and apply the principles and standards formulated by the European Court of Human Rights. A part of the book is devoted to testing the assumption that the current practice of cross-referencing, though widespread, is incoherent in method and erratic in substance. Notable illustrations analysed in the book include the nullum crimen principle, prohibition of torture, hearsay evidence and victims’ rights. Another section of the book seeks to devise a methodologically sound ‘grammar’ of judicial dialogue, focussing on how and when human rights concepts may be transferred into the context of international criminal justice.

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Paolo Lobba, Ph.D. (2013), University of Bologna and Humboldt University of Berlin, is post-doctoral fellow in Bologna. As UN Legal Officer, he served at the Khmer Rouge Tribunal for over three years. His research interests extend to European anti-racism legislation and case law, and victims’ rights.

Triestino Mariniello, Ph.D. (2011), University of Naples 2, is a Senior Lecturer in Law at Edge Hill University (UK). He has also served as a Visiting Professional and Associate Legal Officer at the Pre-Trial Division of the International Criminal Court, working on situations in Sudan, Democratic Republic of Congo and Republic of Kenya.
"Lobba and Mariniello examine the methodology and approach — or lack thereof — of international criminal tribunals when incorporating the case law and standards developed by the European Court of Human Rights (ECtHR) into decisions. The volume belongs to a relatively rare species of reflective books, which critically comment upon certain developments or trends, while retaining a practical aspect. The 15 chapters, spanning four parts, attempt to insert order into an otherwise chaotic and underexplored field. In addition, the reader is provided with some tangible rules and methodology arising from the analysis." Niccolò Pons, Journal of International Criminal Justice, Volume 16, Issue 3, 1 July 2018, Pages 672–675.
Paulo Pinto de Albuquerque
List of Abbreviations

The Grammar of the Judicial Dialogue between International Criminal Tribunals and the European Court: Introductory Remarks
Paolo Lobba and Triestino Mariniello

Dynamics of Judicial Dialogue: Methods and Rationales

1 Cross-Fertilisation under the Look of Glass: Transjudicial Grammar and Reception of Strasbourg Jurisprudence by International Criminal Tribunals
Sergey Vasiliev

2 ‘Directory Authority’: Fertilising International Criminal Tribunals’ Human Rights Standards with European Court of Human Rights’ Case Law
Julia Geneuss

3 Judicial Dialogue in Light of Comparative Criminal Law and Justice
Christoph Burchard

The Use of the ECtHR Jurisprudence by ICTs: A Bird’s-Eye View

4 Article 21 (3) of the ICC Statute: Identifying and Applying ‘Internationally Recognized Human Rights’
Volker Nerlich
5 Article 21(3) of the ICC Statute and ‘Internationally Recognized Human Rights’ as a Source of Mandatory Judicial Dialogue
Christophe Deprez

6 Beyond Anecdotal Reference: A Quantitative Assessment of ICTY References to the Jurisprudence of the ECtHR
Frauke Sauerwein

Cross-Fertilization and Substantive Issues: Crimes and Punishment

7 The Nulla Poena Sine Lege: A Symptomatic Sign of Interactions between Strasbourg and The Hague
Damien Scalia

8 Critical Remarks on the Accessibility/Foreseeability Standard as Applied in International Criminal Justice
Giulio Vanacore

9 The Judicial Dialogue between the ECtHR and the ad hoc Tribunals on the Right to Rehabilitation of Offenders
Alice Riccardi

10 Judicial Dialogue and the Definition of Torture: The Importation of ICTs from European Jurisprudence
Elena Maculan

11 Confronting the Divergent Notions of Torture and Other-Ill Treatment under the Rome Statute through the Lens of Cumulative Conviction
Elizabeth Santalla Vargas

Fairness of International Criminal Proceedings: The (Side) Effects of Cross-Fertilization

12 Absent Witnesses and the Right to Confrontation: The Influence of the Jurisprudence of the European Court of Human Rights on International Criminal Law
Yvonne McDermott

13 The Special Court for Sierra Leone’s Misapplication of the European Court of Human Rights Case Law on Hearsay Evidence and Corroboration: The Taylor Appeal Judgment and the Al Khawaja and Tahery Case
Yael Vias Gvirsman

14 The Interaction between the International Criminal Court and the European Court of Human Rights—The Right to the Truth for Victims of Serious Violations of Human Rights: The Importation of a New Right?
Paolo Caroli

15 Self- or Cross-Fertilisation? Referencing ECtHR Jurisprudence to Justify Victim Participation at the ICC
Kerstin Braun

Students, scholars and practitioners interested in the interaction between international criminal justice and human rights, including judges, lawyers, government officials, and staff of intergovernmental and nongovernmental organisations working in the domains of international criminal law and international protection of human rights.