Brianne McGonigle Leyh is an Assistant Professor with the Netherlands Institute of Human Rights at Utrecht University where she specializes in human rights, transitional justice, victims’ rights, and international criminal law and procedure. She is an executive editor of the Netherlands Quarterly of Human Rights, co-director of the Utrecht Center for International Studies (UCIS), and co-director of the Public International Law & Policy Group’s (PILPG) Netherlands Office. She received her Bachelors degree (BA) from Boston University, graduating magna cum laude with a self-crafted major in the study of international law and human rights, her Law degree (JD) from American University’s Washington College of Law, graduating cum laude, and her Masters degree (MA) in International Affairs from American University’s School of International Service. In 2011 she obtained her PhD from Utrecht University where she wrote her award-winning dissertation on victim participation in international criminal proceedings.
Scholars argue that a global legal system, which fuses international human rights, international humanitarian and international criminal law, and that takes humanity as its reference point, is emerging. They contend that the International Criminal Court (ICC) lies at the heart of these global, values and objectives, and, therefore, it is not only acceptable but necessary that judges take human rights considerations into account in their decision making. However, while it may be true that the ICC deals with serious violations of human rights and human rights norms are listed as a secondary source of applicable law under the Statute, the ICC was never designed to operate as a human rights institution but rather as a criminal court. This distinction is important. Utilizing Robinson’s ‘Identity Crisis Theory’, this talk will note instances where the Court has succumbed to its own ‘identity crisis’ but also purports to show the complexity of the Court decisions by highlighting that, in a number of prominent instances, the Court has been reluctant to take on a broader human rights mandate. The presentation concludes that the application of human rights is unclear and is largely driven by pragmatism rather than principle. Greater clarity, perhaps through a more consistent and transparent theory of international criminal law interpretation, is needed. In the meantime, it is argued that the judges should remain reluctant from conflating the two fields of law because to do otherwise can undermine the very principles upon which fair and legitimate criminal proceedings operate.