Pragmatism over Principles: The International Criminal Court as a Human Rights-Based Approach to Judicial Interpretation

Abstract

The interconnected relationship between international human rights law and international criminal law has long been an issue of scholarship. This article examines the last decade of practice at the International Criminal Court focusing on instances where the Court has either invoked a human rights interpretation of governing documents or rejected such an approach. The article concludes that the application of human rights is unclear and is largely driven by pragmatism rather than principle. Greater clarity, through a more consistent and transparent theory of international criminal law interpretation, is needed. In the meantime, the judges should remain reluctant from too easily conflating the two fields of law because to do so, at the expense of an accused, can undermine the very principles upon which fair and legitimate criminal proceedings operate.