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Judges as Guardians of Constitutionalism and Human Rights

Judges as Guardians of Constitutionalism and Human Rights

Edited by Martin Scheinin, Helle Krunke and Marina Aksenova

This book considers the many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. The contributors, both academics and judges, discuss key examples of contemporary challenges to judging – including the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.

Chapter 13: Constitutionalism and human rights at the International Criminal Court

Anita Ušacka

Subjects: law - academic, constitutional and administrative law, criminal law and justice, human rights, law and society


Anita Ušacka, former Judge of the International Criminal Court. With the International Criminal Court as an example, this chapter seeks to demonstrate that the role of judges as guardians of constitutionalism and human rights both nationally and internationally is more vital than ever before. In analysing the Rome Statute, the ‘Constitution’ of the ICC, it is apparent that the Court strives for the protection of human rights and relies on the harmonization of international jurisprudence. As the area of international law continues to evolve, there is an increasing need for international judges to assume their shared responsibility as guardians of constitutionalism and human rights beyond states via cross-fertilisation. In this regard one hopes that, in the future, the ICC establishes its legitimacy to the extent that its decisions become the source of authority for the state- and non-state parties alike. At the same time, the particular focus of this contribution on two case-studies exposes various difficulties that judges face in practice and raises considerable doubt as to whether or not judges have always been able to fulfill this mandate.

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