Obstacles to Cross-fertilisation: The International Criminal Tribunals’ ‘Unique Context’ and the Flexibility of the European Court of Human Rights’ Case Law

Abstract

International criminal courts (icts) frequently refer to the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights (ECtHR). While this practice is often regarded as cross-fertilisation, in this paper cross-fertilisation is used in a more demanding way and refers to the “transmission of meaning from one (legal) context to another”. For such a cross-fertilisation to ensue legal norms or concepts need to be translated from original to the borrowing legal system without losing its normative meaning. However, a translation from ECtHR-language into ict-language is problematic because of the specific contexts in which both courts operate. Since those obstacles primarily affect the outcome and not the method of the translation process, this paper concludes with an attempt to develop a coherent and transparent method of translating human rights into ict-language taking the frequent characterisation of ECtHR jurisprudence as “persuasive authority” as a starting point.