Article 21(3) of the Rome Statute: A Plea for Clarity

Article 21(3) of the Rome Statute provides that the application and interpretation of its applicable law must be consistent with ‘internationally recognized human rights’. Notwithstanding this unambiguous commitment to operate within the parameters of human rights, neither the Rome Statute nor the jurisprudence of the Court provide adequate guidance as to the boundaries of this commitment. ‘Internationally recognized human rights’ remain undefined. ‘Application and interpretation’ has been the subject of competing interpretations. Drawing on the ordinary rules of treaty interpretation, this article sketches a principled methodology for identifying ‘internationally recognized human rights’, proposing a persuasive approach to the phrase ‘application and interpretation’. It will be argued that, as a result of the generative power of Article 21(3), the violation of an identifiable ‘internationally recognized human right’ may command redress that is not explicitly provided for in Article 21(1).