10
33.
The current historical process of the criminalization of grave violations of
human rights and of international humanitarian law, to which I have already
referred, came to revitalize the principle of the universal jurisdiction that already has
a long record in the sphere of international law and which is to be found in the
confluence between international human rights law (the collective guarantee) and
international criminal law. Indeed, there are extremely important aspects that have
been entirely disregarded by legal doctrine to date and that I have indicated in my
opinions in those cases, which, I believe, merit special attention today, and which
can promote the approximation or convergence to which I refer. I will refer to them
briefly below.
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
28
.
Cf., inter alia, A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus
Gentium - General Course on Public International Law”, Recueil des Cours de l'Académie de Droit International
de la Haye (2005) caps. IX-X (to be published); A.A. Cançado Trindade, El Derecho Internacional de los
Derechos Humanos en el Siglo XXI, 1st ed., Santiago, Editorial Jurídica de Chile, 2001, pp. 317-374 (2nd ed.,
2006); A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos
Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9-104; A.A. Cançado Trindade, Tratado de Direito
Internacional dos Direitos Humanos, tome III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 447-497.
29
.
ICC, Selected Basic Documents Related to the International Criminal Court, The Hague, ICC
Secretariat, 2005, pp. 47, 52, 122 and 151-153.
30
.
Ibid., pp. 32 and 122-124.
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