The Evolution of Human Rights Law in Europe: Comparing the European Court of Human Rights and the ECJ, ICJ, and ICC

By Donna V. Artusy
2014, Vol. 6 No. 11 | pg. 3/4 |

IV. Scope of the Courts

Although they lack absolute authority, courts in Europe now hold increasingly supranational and influence over countries and have come to have direct impact on domestic courts much more than had been historically expressed.47 The idea of a more consistent and universal application of a definition of was the goal and intent of creating the European Court of Human Rights.48 This is an extremely difficult task, as there has always historically been a debate over what constitutes human rights.49

It has become even more challenging by virtue of the fact that there are so many cultural and traditional differences in each member state of such supranational organizations, such as the and even the . It is up the to the European Court of Human Rights to enforce the European Convention of Human Rights, which will hopefully lead to a more common standard and approach to human rights. Unfortunately, such a mechanism does not yet exist for the court, aside from recommendations to the Committee of Ministers.50

The European Court of Human Rights has been the recipient of significant backlash for a lack of enforcement and lack of implementation of its decisions,51 but its task is indeed difficult and has thus far achieved a great deal of progress in the scope of human rights. As the world has become more interconnected through and recognition of universally observed principles, the legal itself has also become more inclusive.52 It is through a more diversely incorporated application of rules, treaties, and principles that we can come closer to an ideal universal definition of human rights. 

Criticisms of European Court of Human Rights

The European Court of Human Rights has been criticized as having less impact because it does not hold power over as many countries quantitatively as some of the aforementioned courts, namely the ICC and ICJ, but only over member countries bound by Article 46 of the Convention on Human Rights. Article 46 grants the European Court of Human Rights with the authority to enforce its decisions such that they are legally binding.53

Although there are technically no enforcement mechanisms for implementing judgments (which is true of most courts, whether they be international or domestic courts) members of the Council of Europe can be expelled for ignoring judgments.54 The court has not as of yet voted to expel any members, but Ukraine has come close to removal as it has blatantly ignored decisions of the Court by failing to implement its judgments in 2001. 55

V. Relationship to the United States

Although the United States is not a signatory to the ICC or ICJ, its own legal institutions, namely the United States Supreme Court, respect the inherent values of European courts' decisions. When asked what role could hold in United States courts, Chief Justice John Roberts emphasized that he felt international law did indeed play an important role in understanding the legality of issues that were not decided through the American legal system.

The problem with looking to international law court decisions is that the jurisdiction is unclear, and therefore does not allow for the best interpretation of the law. The Chief Justice noted that looking to such decisions for precedent would be like "looking into a crowd and [only] picking out all your friends."56 He also stated that:

You may [for example] like what the German High Court says, you may not like what the Indonesian High Court says, but if you're just decid[ing] the ones you like, you know, what are you [really] doing? …It doesn't help narrow your discretion in any way. I do think that there are serious legitimacy issues. Some people think that the [Supreme Court] Justices don't believe in international law. Of course we do. We will benefit from looking at that, and we do.57

Thus, the American legal system appears to have great potential to interact more so with the European legal system, both to provide and understand precedent. The problematic concern lies in the fact that international jurisdictions are unclear. The European legal system has a broad reach, as discussed, but has not maximized its full potential in part due to its unclear organizational system.

VI. Case Analysis

European Court of Human Rights

Each of the aforementioned European courts represents various contributions to the legal system in different ways, but none have thus far been as inclusive of or effective as the European Court of Human Rights. The right to a fair trial, for example, as protected under Article 6 58 of the ECHR, was amended through Funke v. (1992). Prior to this decision, the right to fair trial had been ambiguously defined. It neither guaranteed "fair" processes for discovery of evidence, nor the proper treatment of the accused party during periods of detention. Jean Gustave Funke was a French citizen who appealed his case to the European Court of Human Rights after French government officials entered his home without a warrant and searched for documents, namely bank statements.

The government believed that such documents would contribute to their allegations that Funke was guilty of fraud. Funke was later ordered to discuss evidence that would put him at risk of indicting himself. The French government perceived his noncompliance with this order as uncooperative behavior, and charged him accordingly. He was imprisoned and fined for his alleged transgressions.

In 1988, the court heard his case on appeal, after a court in Strasbourg (Colmar Court of Appeals, March 1983) ruled in favor of the French government. Funke appealed his case on the grounds of violation of the European Convention on Human Rights, specifically Article 6 (right to fair trial) and Article 8 (right to privacy).59 Prior to this case, the right to a fair trial had not been a guaranteed right of specific pre-trial discovery: the case modified the ambiguity.

Another issue addressed by this case clarified the legalities of the seizure of evidence. Funke was fortunate enough to have his case accepted for hearing on appeal of certiorari in the European Court of Human Rights. After an extensive appeals process and time-consuming investigation, the court ruled in favor of Funke, citing that the initial request for documents was not invalid, but the methods by which they were sought constituted a violation of privacy.60

The ramifications of this decision helped to ensure that in the future searches could not be made legal after they had been conducted by eliminating the possibility of creating ex-post facto laws. The court's decision affected the future conduct of the French government and brought about reforms in the collection of evidence. The distinction is not the request for evidence, but the discovery process and the manner in which it is obtained.

As discussed, the European Court of Human Rights allows individuals to appeal directly to the court: a case such as this, despite being ridden with problems, would be inadmissible to the European Court of Justice. The level at which the individual's human rights are impacted demonstrates how the European Court of Human Rights directly reaches the people within its jurisdiction. Other courts do not have the ability to have such influence.

Ezelin v. France

Another significant case heard by the European Court of Human Rights is Ezelin v. France, in which M. Ezelin, the applicant, was accused of endangering national security and for the obstruction of justice via .61 The court upheld the position of the applicant, and maintained his right to peaceful assembly which was deemed "necessary in a democratic society."62

As can be seen from this and Funke, the European Court of Human Rights focuses more on the individual rights than the European Court of Justice: this analysis is not meant to minimize the significance of states' rights, but points to important areas of law that are overlooked when individuals are not allowed to appeal to a specific court, such as the right to privacy and protest.

Chechnya Case

Serious human rights concerns arose during the Second Chechen War, when Russian military forces invaded Chechnya in 1999. The invasion resulted in the massive killings and torture of Chechen people in the region. Immediately following the , many people filed claims against in the European Court of Human Rights. There have been over 31 cases filed in connection with the Chechen Wars ranging from allegations of torture to extrajudicial executions and murder.

Human rights advocate Zura Bitiyeva brought some of the harshest claims to the European Court of Human Rights for abuses sustained while detained in Chernokozovo Prison63 for anti-war protests.64 She provided accounts of her experience in prison, which she alleged included torture. Although declared to be a coincidence of events,65 after she filed her claim against the Russian government, she and her family were killed before the Court could reach a judgment.66

Her only surviving child continued her case in the European Court of Human Rights, though it left him in constant danger of assassination.67 Although the process of appealing to the Court may present a danger to the individual (especially in this case) it at least grants petitioners the access to the legal system that they would not otherwise have. The European Court of Human Rights uniquely provides the opportunity to voice concerns of states' transgressions, and provides a means of accountability to check their behavior.

European Court of Justice

Nold v. Commission

As discussed, cases that have been appealed to the European Court of Justice maintain a different range of appellants than the European Court of Human Rights. In the case Nold v. Commission (1974) the European Court of Justice decided that "…[it] is bound to draw inspiration from constitutional traditions common to the member states, and it cannot therefore uphold measure[s] which are incompatible with fundamental rights recognized and protected by the Constitutions of those states."68

This decision established an understanding between member states and the European Court of Justice: it allowed state courts to suggest recommendations when European Court of Justice law and state court's rights came into conflict. Although this ideology protects state courts, it is somewhat deleterious to what the European Court of Justice sets out to achieve, and detracts from its legitimacy and authority.

By virtue of the fact that a case as such has been brought before this court, it is indicative that more intense scrutiny and a higher mitigating party is necessary, something that a lower court could not provide. Individual member states of the EU need to have an ultimate authority to make substantial differences through decisions as opposed to unsuccessful domestic courts that do not even begin to address individuals' issues. The European Court of Justice is limited by the Treaties of the European Union (TEU), which illustrate restrictions on the Court and grants far too many exceptions that do not allow decisions to stand.

The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the functioning of the European Union.69

These restrictions on the authority of the other courts in Europe force the European Court of Justice to retain less authority and ultimately legitimacy. Unfortunately, this has become a way to justify the lack of enforcement of judicial decisions. There are both short and long-term repercussions to such an approach. The short-term effects provide domestic courts with a substantial authority, while the long-term effects will hopefully benefit the European community by upholding individual rights.

International Criminal Court

The Prosecutor v. Joseph Kony, Vincent Otti, Okat Odhiambo and Dominic Ongwen

Unfortunately, as has been observed through various cases that have been presented to the ICC and ICJ, some cases have been insufficiently resolved and justice has not necessarily always prevailed. One such example is the case in connection with the Rwandan genocide generals who were tried on the grounds of war crimes and of crimes against humanity.70 Similar charges have been brought against Joseph Kony, the leader of the Lord's Resistance Army in Uganda.71 His troops force children to commit horrendous atrocities:

The Lord's Resistance Army spent more than 20 years terrorizing their community and others in the region, stealing children, enslaving them, forcing them to kill their parents and siblings. Many who were not stolen were brutalized. Militia members hacked off people's hands, their heads, their lips and ears.72

Although these are blatant violations of human rights, Kony has not yet been faced with sufficient punishment for his crimes. Despite the fact that his Army had been committing such crimes since 1988, only in 2005 did the ICC even call for his arrest.73 The amount of time that it has taken to attempt to bring him to justice through the international court system can be criticized as a problem of bureaucratic delay to some extent, an inefficient judicial system, or merely an ineffective legal process.74

International Court of Justice

Nicaragua v. United States

The case brought by Nicaragua against the United States was a demonstration of the how the International Court of Justice presided over the two countries' conflict in 1986.75 The ICJ ruled that the United States had violated international law by supporting the Contra guerrilla organization in Nicaragua whose forces had attempted to overthrow the current government at the time. The ICJ ruled in favor of Nicaragua and presented its decision to the United Nations Security Council, which voted to enforce the Court's decision immediately. The United States was ordered to stop its attacks on Nicaragua, which was deemed to be in violation of international codes of conduct.76

Although both Nicaragua and the United States are UN members, and all UN members are under the International Court of Justice, the US claimed that the ICJ did not have the authority or the jurisdiction to decide the case. Former U.S. ambassador to the United Nations, Jeane Kirkpatrick, called the International Court of Justice a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't."77 Although the court was effective in deciding the case, the fact that such legal authority can be undermined so easily through mere rhetoric, deeply tarnished its ability to be taken seriously, and is highly indicative of a wavering legitimacy.

Bosnia and Herzegovina v. Serbia and Montenegro

The International Court of Justice heard the case of Bosnia and Herzegovina v. Serbia and Montenegro (2007) in which Serbia was accused of genocide against Muslims living in Bosnia, constituting the systematic elimination of a particular group.78 The court decided that Serbia was not directly at fault or responsible for the genocide, and that it was not a party to a conspiracy against Muslims.

However, the court also stated that Serbia had breached the Genocide Convention.79 It argued that because Serbia had not directly prevented the genocide or punished the perpetrators, it had defaulted on its obligation to do so under the Convention.80 The court had previously ruled that Serbia must do "everything in its power to prevent genocide" and referred to this in its condemnation of Serbia's actions.81

That, as a result of the international responsibility incurred for the…violations of the Convention on the Prevention and Punishment of the of Genocide, the Federal Republic of Yugoslavia (Serbia and Montenegro) is required to pay, and the Republic of Bosnia and Herzegovina is entitled to receive, in its own right…full compensation for the damages and losses caused, in the amount to be determined by the Court… for the proceedings in this case.82

The court did not embrace its authority to the extent that it could have, and reached its verdict by taking the perspective of a state court while still applying the definitions of the Genocide Convention. While this scope would be acceptable at a state level court, the court should have ruled with the authority of an international body. The court would potentially be better able to determine and rule on issues that would have been helpful to the population of Bosnia-Herzegovina as a whole.

Even the president of the International Court of Justice, Rosalyn Higgins, felt that the evidence presented to the court was sufficient to convict Serbia for crimes against humanity and war crimes in Bosnia-Herzegovina, but that the court lacked sufficient jurisdiction to rule on such claims. "The International Court of Justice does not have jurisdiction over them [allegations of war crimes and crimes against humanity], because this case deals 'exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term."83

This landmark case has been presented to the ICJ with charges including both genocide and war crimes, but the verdict falls short on multiple levels: the decision was not as effective as it could have been and the court did not fulfill its potential as a legal institution. The court's effectiveness is thus unclear: however, through historical examination and research, the European Court of Human Rights has demonstrated and offered a variety of solutions to injustices that have been imposed upon the global community.

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