La doctrine des mains propres (« clean hands ») dans le contentieux international des droits de l’homme et du droit international pénal

The applicability of the clean hands doctrine in international law has been widely debated for many years. The concept, which finds its roots in the Anglo-Saxon legal system, purportedly results in the inadmissibility of a claim when the claimant’s actions are tainted with illegality. Although parties’ submissions frequent cite the concept, its recognition by judicial fora remains scarce in international dispute settlement. The present article focuses on a rarely mentioned aspect of the issue, its applicability within the framework of international disputes involving human rights and international criminal law. The analysis builds upon a review of the jurisprudence all related major international courts and tribunals. Submissions and judgments attribute specific consequences to the notion in these fields as well, even though the doctrine is usually applied in contractual relations, where the nature of legal relations is markedly different. In the field of human rights, it follows from the decisions that the individuals’ illegal actions cannot affect the exercise of their human rights and especially the admissibility of their claims, as it has been emphasized in the Van der Tang (ECtHR), the Hill (UNHRC) and the Martorell (IACHR) cases. This principle holds true even when individuals do not comply with a judicial decision or breach the terms of their parole. Concerning international criminal law, the notion mostly appears as a rhetorical device. Nonetheless, states must refrain from the violation of the accused’s rights during their arrest and detention, moreover, a serious violation of these rights may entail the inadmissibility of the claim. This line of thought finds its most important precedents in the Nikolić (ICTY) and the Barayagwiza (ICTR) cases. It has also been suggested that based on the doctrine certain flaws of procedure may lead to inadmissibility