Sources of International Criminal Law

SOURCES OF INTERNATIONAL CRIMINAL LAW

ACKNOWLEDGEMENT The success and final outcome outcome of this project required a lot of guidance and assistance from many people and I am extremely fortunate to have got this all along the completion of my project report. Whatever I have done is only due to such guidance and I would never forget to thank them. I am thankful to and fortunate enough to get constant encouragement, support and guidance throughout the completion. I am very much thankful to

Ms. Nidhi Singh for her support and guidance, without which I

would not have been able to accomplish this project work. I am thankful to my department,

University Institute of Leg! Studies" #n$% University"

Chndigr Chndigrh" h" for providing such an expansive library which provided me all the relevant material required for this project. I also express my gratitude to the library staff for their help in the searching of the books and whatever other help I needed. I am also thankful to my friends who helped me in collection of material. astly and most importantly, I would like to thank my parents and the almighty for moral support and constant supervision.

AMANINDE& 'EET KAU&

INTERNATIONAL CR CRIMINAL LAW

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TA(LE O) CONTENTS T!"# $% &!'#'..................... ................................ ..................... ..................... ..................... ..................... ...................................... ........................... 3

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INTE&NA INTE&NATI TIONAL ONAL C&IMINA C&IMINAL L LAW LAW+ AN INT&ODUC INT&ODUCTION TION ....................................4

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............................... ............................7 .................7 SOU&C SOU&CES ES O) INTE&N INTE&NA ATIONAL IONAL C&IMI C&IMINAL NAL LAW LAW....................

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ADO#TION O) TE STATUTE STATUTE O) INTE&NATIONAL I NTE&NATIONAL C&IMINAL COU&T.............9

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OTE& SOU&CES O) INTE&NATIONAL C&IMINAL LAW.................................12

............................... ..................... ..................... ..................... ..................... ...................... ..................... .................... .......... 12 (.) T*#!TI#' .................... (.+ &'T$-!* &'T$-! * I/T#*/!T I/T#*/ !TI$/! I$/! !W.................................................................14 (.0 1#/#*! 2*I/&I2#' $% !W..................... ............................... ..................... ..................... ..................... .....................15 ..........15 (.( 34I&I! 4#&I'I$/' !/4 #!*/#4 W*ITI/1'................................................17

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................................ ..................... ..................... ..................... ..................... ..................... ....................... ............ 18 CONCLUSION......................

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............................... ..................... ..................... ..................... ......................................... .............................. 19 (I(LIOG&A#2.....................

TA(LE TA(LE O) CASES ............................... ..................... ..................... ..................... ...................... ..................... .......................... ................ 15 *. Erde3ovi454se..................... ............................... ...................... ..................... ..................... ..................... ..................... ................................. ...................... 15 ,. )urund6i$.................... ............................... ..................... ..................... ..................... ..................... ..................... ..................... ....................... .............13 13 -. G!i45 4se..................... ................................ ..................... ..................... .................................................... ......................................... 13 /. Kordi45 nd 7er8e9..................... ................................ ..................... ..................... ..................... ..................... ........................................... ................................... .. 4 0. Tdi4 4se......................


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*. INTE&NATIONAL INTE&NATIONAL C&IMINAL LAW LAW+ AN INT&ODUCTION INT&ODUCTION International law typically governs the rights and responsibilities of 'tates5 ) criminal law, conver conversely sely,, is paradig paradigmati maticall cally y concer concerned ned with with prohib prohibitio itions ns address addressed ed to indivi individua duals, ls, violations of which are subject to penal sanction by a 'tate. + The development of a body of international criminal law which imposes i mposes responsibilities directly on individuals and punishes violations through international mechanisms is relatively recent. !lthough there are historical precursors and precedents of and in international criminal law, it was not until the )667s, with the establishment of the ad hoc Tribunals for the former ugoslavia ugoslavia and *wanda, that it could be said that an international criminal law regime had evolved. This is a relatively new body of law, law, which which is not yet uniform uniform,, nor are its courts courts univer universal sal.. Intern Internatio ational nal crimin criminal al law developed from various sources. War crimes originate from the 8laws and customs of war9, which accord certain protections to individuals in armed conflicts. 1enocide and crimes against humanity evolved to protect persons from what are now often termed gross human rights rights abuses, abuses, includ including ing those those commit committed ted by their their own govern governmen ments. ts. With With the possib possible le exception of the crime of aggression with its focus on inter:'tate conflict, the concern of international criminal law is now with individuals and with their protection from wide:scale atroc atrocit ities ies.. !s was was said said by the the !ppea ppeall &ham &hambe berr in the the

Tdi4 4se- in the Internation International al

&riminal Tribunal for the former ugoslavia ;I&T<= ! 'tate:sovereignty 'tate:sovereignty:orient :oriented ed approach approach has been gradually supplanted by a human:bein human:being g oriented approach . . . International law, while of course duly safeguarding the legitimate 1 $ppenheim9s International International aw ;6th edn, ondon, )66(< >?@. 2 1lanville Williams, 8The 4efinition of &rime9 ;)6>>< A &urrent egal 2roblems )7@. 3 IT:6(:):! INTERNATIONAL CR CRIMINAL LAW

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SOURCES OF INTERNATIONAL CRIMINAL LAW interests of 'tates, must gradually turn to the protection of human beings . . . The meaning of the phrase 8international criminal law9 depends on its use, but there is a plethora of definitions, not all of which are consistent. In )6>7, the most dedicated chronicler of the uses of 8international criminal law9, 1eorg 'chwarBenberger, described described six different different meanings that have been attributed to that term5 ;a< In the sense of territorial territorial scope of municipa municipall criminal law: it covers covers those cases when criminal jurisdiction is exercised by a state either within in its own territory or in places assimilated in it5 ;b< In the sense of intern internatio ational nally ly prescri prescribed bed municipal municipal criminal criminal law: this this is based based on treaties and international customary laws and covers cases such as piracy and slave trading5 ;c< In the sense of internationally internationally authorised authorised municipal municipal criminal criminal law: it is an extension extension of the earlier category and covers cases such as piracy Jure piracy Jure Gentium and war crimes5 ;d< In the sense of municipal municipal criminal law common common to civiliBed nations: nations: it covers cases such as forgery of foreign currency5 ;e< In the sense of international international co:operation co:operation in the administratio administration n of justice5 and ;f< In the material sense of the term, all of which related to international law, criminal law and their interrelationship, but none of which referred to any existing body of inter interna natio tiona nall law law whic which h direc directly tly creat created ed crim crimin inal al proh prohib ibiti ition onss addr address essed ed to individuals. 'chwarBenbe 'chwarBenberger rger believed that no such law existed at the time. 8!n international international crime9, he said in reference to the question of the status of aggression, 8presupposes the existence of an intern internatio ational nal crimina criminall law. law. 'uch 'uch a branch branch of intern internatio ational nal law does does not exist. exist.99 &herif &herif "assiouni,( on the other hand ;and writing almost half a century later<, listed twenty:five categor categories ies of intern internati ationa onall crimes, crimes, being being crimes crimes which which affect affect a signif significa icant nt interna internatio tional nal interest or consist of egregious conduct offending commonly shared values, which involve more than the 'tate because of differences of nationality of victims or perpetrators or the means employed, or which concern a lesser protected interest which cannot be defended without international criminaliBation. Cis categories include, as well as the more familiar ones, traffic in obscene obscene materials, materials, falsification and counterfeiti counterfeiting, ng, damage to submarine cables and unlawful interference with mail. 4ifferent meanings of international criminal law have their own utility for their different different purposes purposes and there is no necessary necessary reason to decide upon one meaning as the 8right9 one. one. 4 -. &herif "assiouni ;ed.<, International &riminal a w, 0rd edn ;eiden, +77A< vol. I, )+6, )0(?>. INTERNATIONAL CR CRIMINAL LAW

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SOURCES OF INTERNATIONAL CRIMINAL LAW International criminal law in the material sense of the term can exist only when some pre: cond condit itio ions ns are satis satisfie fied d name namely ly,, ;a< ;a< some some exte extern rnal al auth author ority ity to enfo enforce rce sanct sanctio ions ns of international criminal law5 ;b< a code of criminal law5 ;c< an international criminal court5 and ;d< 'tate as well as individuals should be amenable to international criminal responsibility. International criminal law also shares common roots with international humanitarian law, the body of law designed to protect victims of armed conflict. arge areas of international humanitarian humanitarian law are now criminaliBed criminaliBed as war crimes. Thus, international international humanitarian humanitarian law serves as a point of reference in understanding and interpreting the corresponding war crimes provisions. !s with human rights norms, care must be taken before transposing all humanitarian law standards directly into international criminal law5 the latter has distinct principles of interpretation. The two bodies of law that make up international criminal law ;international law and criminal law< are compatible, although the relationship between the two can be fractious. International criminal criminal law should should be appraised appraised from the standpoints standpoints of both bodies of law. law. Its sources are those of internationa internationall law, but but its consequences consequences are penal. !s a body of international law it requires an understanding of the sources and interpretation of international law. "ut it is also criminal law and as such needs substantive provisions that are clear and exact rather than the often more imprecise formulations of international law. %urther, the relevant international courts and tribunals require methods and procedures proper to a criminal court, with due regard to the rights of the accused at all stages of the investigation and court procedures. !t a more abstract level, the sophisticated philosophical analyses of the appropriate ambit of criminal liability that have been developed at the domestic level ought to be borne in mind whenever international crimes or their principles of liability are being appraised. > &ertain fundamental principles of national criminal law systems have now become entrenched in international law, and more particularly, in human rights law. $ne aspect of human rights law with with a close close analogu analoguee in crimina criminall law theory is the prohib prohibitio ition n of retroac retroactiv tivee criminal criminal prohibitions and penalties ;sometimes referred to together as the principle of legality or nullum crimen, nulla poena, sine lege<. 4ue to the relative imprecision of the nature and content of international law, the principle has greater prominence in international than in national courts.

5 &laus DreE, 8The &rime of 1enocide nder International aw9 ;+77F< F I&* (F). INTERNATIONAL CR CRIMINAL LAW

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,. SOU&CES O) INTE&NATION INTE&NATIONAL AL C&IMINAL LAW LAW !s intern internati ationa onall crimina criminall law is a subset subset of intern internatio ational nal law, its sources sources are those those of international law. These These are usually considered to be those enumerated in !rticle 0A;)< ;a<:;d< of the 'tatute of the International &ourt of 3ustice, in other words, treaty law, customary law, general principles of law and, as a subsidiary means of determining the law, judicial decisions and the writings of the most qualified publicists. F !s will be seen, all of these have been used by the ad a d hoc tribunals. They are available for use by national courts in so far f ar as the relevant national system concerned will allow. The I&& statute contains its own set of sources for the I&& to apply, which are analogous, although by no means identical, to those in the I&3 statute.@ The five sources of I& roughly correlate with the classic expression of the sources of international law contained in !rticle 0A;)< of the 'tatute of International &ourt of 3ustice ;I&3<= ;a< Internationa Internationall convention conventions, s, whether general or particular, particular, establishin establishing g rules expressly recogniBed by the contesting states5 ;b< Internationa Internationall custom, as evidence of a general practice practice accepted as law5 ;c< The general general principles principles of law recogniBed recogniBed by civiliBed civiliBed nations5 nations5 ;d< 3udicia 3udiciall decisio decisions ns and the teachin teachings gs of the most highly highly qualifie qualified d publici publicists sts of the various nations, as subsidiary means for the determination of rules of law.

6 4apo !kande, 8'ources of International &riminal aw9 in !ntonio &assese et al. ;eds.<, The $xford &ompanion to International &riminal 3ustice ().

7 !rt. +) of the I&& 'tatute . INTERNATIONAL CR CRIMINAL LAW

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SOURCES OF INTERNATIONAL CRIMINAL LAW Sou!e" o# I$%e$a%&o$a' C  &( &( &$ a ' L a )

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!t the I&&, the *ome 'tatute, #lements of &rimes and *ules of 2rocedure and #vidence provide the primary sources of law. Treaties and principles and rules of international law are applied once the primary sources have been utilised, and finally, general principles of law, including relevant and appropriate national laws are considered. The sources of law can sometimes sometimes overlap overlap and have a dynamic dynamic relationship. relationship. %or example, a treaty can reflect, become or influence the development of customary international law and vice versa. ! judgment of an international court may influence the development of treaty and customary international law. 1enerally, international criminal law, in addition to their own governing instruments ;which may include treaties<. The relevan relevance ce and importa importance nce of these these sources sources in nation national al crimina criminall jurisdi jurisdictio ction n differ differss between countries. %or example, in some jurisdictions, the direct source of international criminal law is national legislation incorporating I&. In this instance, treaty and customary international law cannot be used as a direct source. &onversely, some courts can apply treaty law but not customary international law, while in others5 custom can be applied as well. -oreover, even if national legislation is the direct source of the applicable law, international criminal law treaties, commentaries on them and international judicial decisions are often used as aids to interpret the national law and are sometimes considered persuasive ;not binding< precedent. 4ifferent courts may apply these sources in different ways. %or example=


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SOURCES OF INTERNATIONAL CRIMINAL LAW •

/ational courts may not find it necessary to refer re fer directly to international law sources when the content and meaning of the applicable national laws ;including incorporated

•

or otherwise applicable international law< are unambiguous. /ational legislation and judicial decisions can be evidence of customary international law: but they are not directly applied by international courts. Indeed, the I&T !ppeals &hamber has held that Gdomestic judicial views or approaches should be handled with the greatest caution at the international level, lest one should fail to make make due due allow allowan ance ce for for the the uniq unique ue chara characte cteri risti stics cs of inte interna rnati tion onal al crimi crimina nall proceedingsH.

-. ADO#TION O) TE STATUTE O) INTE&NATIONAL C&IMINAL COU&T The The 1ene 1eneral ral !ssemb ssembly ly,, in its its resol resolut utio ion n ((0 ((06 6 of ( 4ecem 4ecembe ber, r, )6A6 )6A6,, reque request sted ed the the Intern Internatio ational nal aw &ommis &ommissio sion n to address address the questio question n of establi establishi shing ng an Intern Internatio ational nal &rim &rimin inal al &our &ourt. t. Thro Throug ugh h its its resol resolut utio ion n (>( (>() ) of +A /ove /ovemb mber er,, )667 )667 and and (>> (>>( ( of 6 4ecember, 4ecember, )66), the !ssembly invited the &ommission &ommission to consider consider further further and analyse the issues concerning the question of an international inte rnational criminal jurisdiction, including the question of establishing an International I nternational &riminal &ourt. %urther, in resolutions (@00 of +> /ovember, )66+ and (A0) of 6 4ecember, )660, the 1eneral !ssembly requested the &ommission to elaborate the draft statute for such a &ourt as a matter of priority. The International International aw &ommission &ommission considered considered the question of establishing establishing an Internationa Internationall &riminal &ourt from its forty:second session to its forty:sixth session in )66(. !t the latter session, the commission completed a draft statute for an International &riminal &ourt, which was submitted with 1eneral !ssembly. The 1eneral !ssembly, on its part, passed resolution >)+7@ on )@ th 4ecember, )66F through which it decided to hold a diplomatic conference of plenipotentiaries in )66A with a view to finaliBing and adopting a convention on the establishment of an International &riminal &ourt. In its resolution >+)F7 of )> th 4ecember, )66@, the 1eneral !ssembly accepted the offer of Italy to act as host to the conference and decided to hold the nited /ations 4iplomatic &onference of 2lenipotentiaries on the #stablishment of an International &riminal &ourt in *ome from )> 3une to )@ 3uly, )66A. $n )@ 3uly, )66A, the conference adopted the statute


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SOURCES OF INTERNATIONAL CRIMINAL LAW known as the *ome 'tatute of the International &riminal &ourt. The *ome 'tatute for International &riminal &ourt entered into force on !pril )), +77+. $n that date ten nations ratified the statute thus making a total of FF state parties to the treaty. !rticle )+F of the *ome 'tatute required the ratification of F7 nations for the statute to come into force. "esides the 2reamble, there are )+A !rticles in the statute which are divided into the following )0 parts= ; i< ;ii< ;ii< ;iii ;iii<< ;iv< ;iv< ;v< ;v< ;vi< ;vii< ;vii ;viii< i< ;ix< ;ix< ;x< ;xi< ;xi< ;xii< ;xii ;xiii< i<

#stablishment of the &ourt5 3uris 3urisdi dicti ction on,, !dmis dmissib sibili ility ty and and !pplic pplicab able le law5 law5 1ene 1enera rall pri princ ncip iple less of of &ri &rimi mina nall law law55 &omp &ompen ensat satio ion n and and !dmin dminis istra trati tion on of the the &ou &ourt5 rt5 Inv Investigati ation and and 2ro 2rosecut cution5 The trial5 The pe penalties5 !ppe !ppeal al and and rev revis isio ion5 n5 Inte Interna rnati tion onal al &oo &oope perat ratio ion n and and 3udic 3udicia iall !ss !ssist istan ance5 ce5 #nforcement5 !sse !ssem mbly bly of 'tat 'tates es parti arties es55 %inancing5 an and %in %inal clau clause se..

The *ome *ome &onfer &onference ence or the ./. ./. 4iplom 4iplomatic atic &onfere &onference nce of plenip plenipote otenti ntiarie ariess on the establi establishm shment ent of Intern Internatio ational nal &riminal &riminal &ourt &ourt was attend attended ed by )F+ countr countries. ies. "eside "esidess adop adopti ting ng the the stat statut ute, e, the the &onf &onfer eren ence ce,, thro throug ugh h a resol resolut utio ion n in its its 2art 2art % ;of ;of !nnex nnex.. )< established the preparatory commission for the International &riminal &ourt to prepare the proposals for practical arrangements for the establishment and coming into operation of the &ourt.A !ccording to !rticle )+F of the 'tatute, the 'tatute shall enter into force on the first day of the month after the F7 th day following the date of deposit of the F7 th instrument of ratification acceptance, approval or accession with the 'ecretary 1eneral of the nited /ations. %or each 'tate ratifying, accepting, approving or acceding to the statute after the deposit of the F7 th instrument of ratification, acceptance, approval or accession, the statute shall enter into force on the first day of the month after the F7 th day following the deposit by such state of its instrument of ratification, acceptance, approval or accession. !ccording to !rticle +) of the statute= ;)< The &ourt shall apply= apply=

8 Pa% F A$$e. I o# U.N. o!. ACo$%.831 17 0u'* 1998. INTERNATIONAL CR CRIMINAL LAW

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SOURCES OF INTERNATIONAL CRIMINAL LAW ;a< In the first first place, place, this statute statute elements elements of crime crime and its *ules of 2rocedure 2rocedure and #vidence. ;b< In the second place, where appropria appropriate, te, applicable applicable treaties and the principles principles and rules of international law, including the established principles of international law, including the established principles of the international law of armed conflict. ;c< %ailing that, general principles principles of law derived by &ourt from national laws of of legal systems of the world including, as appropriate the national laws of 'tates that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the statute and with international law and internationally recogniBed norms and standards. ;+< ;+< The The &our &ourtt may apply apply prin princip ciples les and and rule ruless of law as inter interpr pret eted ed in its its prev previo ious us decisions. ;0< The application application and interpretation interpretation of law pursuant to this !rticle !rticle must be consistent consistent with internationally recogniBed human rights, and be without any adverse distinction founded on grounds such as gender as defined in !rticle @, paragraph 0, age, race, colour, language, religion, or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

INTERNATIONAL CRIMINAL LAW

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/. OTE& SOU&CES SOU&CES O) INTE&NA INTE&NAT TIONAL C&IMINAL C&IMINAL LAW LAW /.* T&EATIES Treat reaty y:bas :based ed sour source cess of inte intern rnat atio iona nall crim crimin inal al law law, eith either er dire direct ctly ly or as an aid aid to interpretation, include the )67@ Cague *egulations, the )6(6 1eneva &onventions ;and their additional protocols< and the )6(A 1enocide &onvention. They form the basis for many of the crimes within the jurisdiction of the ad hoc tribunals and the I&&. The 'tatute of I&&, which sets out the definitions of crimes within the jurisdiction of the I&&, is, of course, itself a treaty. 'ecurity &ouncil resolutions A+@;+770< and 6>>;+77(<, which set up the I&T and I&T* I&T* respecti respectively vely,, were were adopte adopted d by the 'ecuri 'ecurity ty &ounci &ouncill pursua pursuant nt to its powers powers under under &hapter JII of the / &harter, and thus find their binding force in !rticle +> of the &harter. 4epending on the jurisdiction, in:force treaties that have been ratified ;or acceded to< by the relevant relevant state can be a direct source of applicable applicable law. In jurisdictions jurisdictions where treaties cannot be a direct source of law, they often can serve as aids to interpretation of other applicable law. In some jurisdictions, treaty law is the main source of I&. %or example, the *ome 'tatute of the I&& is a treaty and a primary source of law for that court. Cowever, at the I&T and I&T*, treaty law is less important than custom as a direct source ;although some of the crimes crimes in their their 'tatut 'tatutes es are copied copied verbat verbatim im from from treaties treaties,, for example, example, the 1enoci 1enocide de &onvention<. The source of their binding nature is therefore a treaty. The 'tatutes of the tribunals have had an important effect on the substance of international criminal law both directly, as applied by the Tribunals, and indirectly as a source for other international criminal law instruments5 the influence of the I&& 'tatute has so far largely been through its impact on national legislation. It has been suggested that treaties might not suffice to place liability directly on individuals and as such cannot be a direct source of international criminal law. 'uch arguments run up against long:standing practice in international humanitarian law, which has been to apply to individuals the 8laws and customs of war9 as found in the relevant treaties, as well as a customary law. !s the 2ermanent &ourt of International 3ustice noted over eighty years ago, treat treaties ies can opera operate te direc directly tly on indi indivi vidu dual als, s, if that that is the the inte intent nt of the the draf drafter ters. s. The International &ommittee for the *ed &ross and *ed &rescent ;I&*&< study on customary humanitarian law reports that 8the vast majority of practice does not limit the concept of war INTERNATIONAL CRIMINAL LAW

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SOURCES OF INTERNATIONAL CRIMINAL LAW crimes to violations of customary international law. !lmost all military manuals and criminal codes refer to violations of both customary law and applicable treaty law.9 That does not mean that every provision of the 1eneva &onventions, for example, imposes direct criminal responsibility on individuals. "reach of some of them, for example those regarding the finest details of the treatment of detainees, would probably not constitute a war crime. It is only those treaties or provisions of a treaty which are intended to apply directly to an individual that can give rise to criminal responsibility. The 8suppression conventions9, for example, which require 'tates to criminaliBe conduct such as drug trafficking, hijacking and terror bombing are not generally regarded as creating individual criminal responsibility of themselves5 the conduct covered by those treaties will be incorporated in national law by whatever constitutional method is used by the 'tate concerned. %urther, if a court is to apply the terms of a treaty directly to an individual, it will be necessary to show that the prohibited conduct has taken place in the territory of a 'tate party to the treaty or is otherwise subject to the law of such a party. The practice of the I&T has been, with occasional deviations, to accept accept that that treatie treatiess may suffice suffice to found found crimina criminall liabil liability ity.. This This began began with with the decision decision of )66> and the position was reasserted in the

Tdi4:

Kordi45 nd 7er8e9 *; appeal. In the

G!i45 4se** the I&T !ppeals &hamber noted that the position of the Tribunal is that treaties suffice for criminal responsibility, although 8in practice the International Tribunal always ascertains that the relevant provision is also declaratory of custom9. This is to adopt a 8belt and braces9 approach rather than to require a customary basis for war crimes. The proposition that treaties may found international criminal liabilit y is inherent in the 'tatute of the I&T*, which criminaliBes violations of !dditional 2rotocol II ;not all of which was at the time considered customary<.)+

/., CUSTOMA&2 CU STOMA&2 INTE&NATIONAL LAW LAW The The I&T I&T has has accep accepted ted that that when when its its 'tatu 'tatute te does does not not regu regulat latee a matt matter er,, cust custom omary ary international law, and general principles, ought to be referred to. &ustomary international law, 9 IT:6(:):! 1 IT:6>:)(+:! 11 IT:6A:+6 12 I&T* 'tatute, !rticle (, *eport of the 'ecretary:1eneral 2ursuant to 2aragraph > of 'ecurity &ouncil *esolution 6>> ;)66(< ')66>)0(, para. )+.


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SOURCES OF INTERNATIONAL CRIMINAL LAW that body of law which derives derives from the practice of 'tates accompanied by opinio juris ;the belief that what is done is required by b y or in accordance with law<, has the disadvantage of all unwritten law in that it may be difficult to ascertain its content. This is not always the case, however, when the customary law originates with a treaty or other written instrument, for example a 1eneral !ssembly resolution, which is accepted as reflecting custom, or has been recogniBed by a court as such. /evertheless the use of customary international law in international criminal law has sometimes been criticiBed on the basis that it may be too vague to found criminal liability or, even, that no law that is unwritten should suffice to found criminal liability. 'uffice it to say for the moment that this was not the position of the /uremberg or Tokyo Tokyo I-Ts, I-Ts, nor is it that of the ad hoc hoc Tribunals. Tribunals. In general, and depending depending on the circumstances, circumstances, evidence of state practice practice and opinion juris may include= • • • • • •

• • • •

4iplomatic correspondence5 $fficial policy statements and press releases by governments5 #xecutive decisions and practices5 $pinions of government legal advisors5 -ilitary manuals5 &omm &ommen ents ts on draft draft statem statement entss on inte intern rnati ation onal al law law by the the Inte Intern rnat atio iona nall aw aw &ommission5 !uthoritative commentaries on treaties5 /ational legislation5 /ational and international judicial decisions5 &ontents of treaties5 and The practice of internationa internationall organiBati organiBations ons and their organs, organs, including, for example, example, / 1eneral !ssembly and 'ecurity &ouncil resolutions relating to legal questions.

IE&A&C2 (ETWEEN TE T&EAT2 LAW" CUSTOMS AND 'US COGENS 1enerally, there is no hierarchy between treaty law and custom. Where a rule derived from one source conflicts conflicts with a rule derived from the other, rules rules of interpretatio interpretation n such as lex posterior derogate priori ; a later later law repeals repeals an earlier earlier law<, lex posterior generalis non derogate derogate prior speciali ;a later general general law does does not repeal repeal an earlier earlier special special law< and lex specialis derogate legi generali ; a special law prevails over a general law< are used for resolution. !s general principles of law are used to fill gaps in treaty and customary law, it is subordinate to treaty and customary law. /either custom nor treaty treat y law may conflict with jus with jus cogens, i.e. peremptory norms of general international law. !s jus !s jus cogens reflect the fundamental principles from where there can be INTERNATIONAL CRIMINAL LAW

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SOURCES OF INTERNATIONAL CRIMINAL LAW no derogation, treaty law and customary law must always be interpreted consistently with norms that have attained this peremptory status. #xamples of jus cogens are the prohibition of genocide and torture.

/.- GENE&AL #&INCI#LES O) LAW The I&T has resorted to general principles of law to assist it in its search for applicable rules of international law. $wing to the differences between international trials and trials at the national level, the I&T has been chary of uncritical reliance on general principles taken from domestic legal systems and a contextual application of them to international trials. That said, the I&T and I&T* have both resorted to national laws to assist them in determining the relevan relevantt intern internatio ational nal law throug through h this this source source.. !s was said in the

)urund6i$*- decision,

however, care must be taken when using such legislation, not to look simply to one of the major major legal legal systems systems of the world, world, as 8inter 8internat nation ional al courts courts must must draw draw upon upon the general general concepts and legal institutions common to all the major legal systems of the world9. In relation to criminal law, general principles of law are not ideal. !fter all they are, by their nature, general, and thus tend to be a last resort. !lso, as the

Erde3ovi454se*/ showed, at

times there simply is no general enough principle to apply. !s regards the I&&, it is to apply, where the first two categories of law do not provide an answer= . . . general principles of law derived by the &ourt from national laws of legal systems of the world including, as appropriate, the national laws of 'tates that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with KtheL 'tatute and with international law and internationally recogniBed norms and standards. )>

*. Nu!!u3 4ri3en sine !ege+< ! person shall not be criminally responsible under this 'tatute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the &ourt. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the 13 IT:6>:)@):T 14 IT:6F:++:! 15 !rt. +);)<;c< of the I&& 'tatute. This and all other sources of law available to the I&& are qualified by !rt. +);0< which requires application and interpretation of the law to be consistent with internationally recogniBed human rights, and without adverse discrimination.


Page 14

SOURCES OF INTERNATIONAL CRIMINAL LAW defi defini niti tion on shal shalll be inter interpr pret eted ed in favou favourr of the the perso person n bein being g inve investi stiga gated ted,,

,.

prosecuted or convicted. convicted.)F convicted by the &ourt may be punished, punished, only Nu!! =oen sine !ege> : ! person convicted in accordance with this statute.)@

-. Non
/.

favourable to the person being investigated, prosecuted or convicted shall apply. )A Indivi Individu du!! Cri3in Cri3in! ! res=o res=onsi nsi%i! %i!ity ity=: !rticle +> of the 'tatute which deals with

individual criminal responsibility provides the following= ;)< The &ourt shall have jurisdiction over natural persons persons pursuant to this statute. ;+< ;+< ! pers person on who who comm commit itss a crim crimee with within in the the juri jurisd sdic icti tion on of the the &our &ourtt shal shalll be individually responsible and liable for punishment in accordance with this 'tatute. ;0< In accordance accordance with this statute, a person shall be criminally responsib responsible le and liable for punishment for a crime within the jurisdiction of the &ourt if the person5 ;a< &ommits &ommits such a crime5 whether as an individual, individual, jointly with another another or through another person, regardless of whether that other person is responsible5 ;b< $rders, solicits solicits or induces the commission commission of such a crime which in fact occurs occurs or is attempted5 ;c< %or the purpose purpose of facilitatin facilitating g the commiss commission ion of such a crime, crime, aids, abets abets or othe otherwi rwise se assist assistss in its its comm commis issio sion, n, incl includ udin ing g prov provid idin ing g the the mean meanss for for its its commission5 ;d< In any other way contributes contributes to the commission commission or attempted commission commission of such a crime by a group of persons acting with a common purpose. ;e< In respect of the crime of genocide, genocide, directly directly and publicly publicly incites incites others to commit genocide. ;(< /o provis provision ion in this this statute statute relating relating to indivi individua duall respons responsibi ibility lity shall affect affect the responsibility of states under international law.

/./ 'UDICIAL DECISIONS AND LEA&NED W&ITINGS W&ITINGS The I&T and I&T* refer to and generally follow their earlier jurispruden jurisprudence, ce, although they are not always bound to do so. Trial chambers are not obligated to follow their decisions of other trial chambers, but they must follow follow the decisions decisions of the appeal chamber. chamber. The appeals 16 A%&!'e 22. 17 A%&!'e 23. 18 A%&!'e 24. INTERNATIONAL CRIMINAL LAW

Page 15

SOURCES OF INTERNATIONAL CRIMINAL LAW chamber may depart from its own prior decisions, but only in exceptional situations when it is in the interest of justice to do so. The I&& may also apply 8principles and rules of law as interpreted in its previous decisions9. The I&& is not, however, bound by its previous decisions5 it has no equivalent to the common law principle of stare decisis. The I&T has frequently had recourse to judicial decisions for determining issues of law, and has constructed a system of precedents for dealing with its own jurispruden jurisprudence. ce. The The I&T I&T and I&T* I&T* have have had had refere referenc ncee to dome domesti stic, c, as well well as international, case law. 4omestic case law is a major material source of evidence about international criminal law. Cowever, a caveat must be entered in this regard. The asse rtions of international law in domestic cases can be affected by local idiosyncrasies. These can arise from the domestic statutes that are being evaluated or applied, or from a court seeing international criminal law through a distinctly national lens. %inally, although the writings of scholars are not, in themselves, sources of international criminal law, it is possible to have recourse to the views of scholars, which at times, have been highly influential. Cowever, care must always be taken to ensure that the statements relied on are accurate statements of the law as it stands, rather than a statement of how the author would like the law to be5 this is important, not least because of the nullum crimen sine lege principle. !lso, selection of scholars from only one, or a limited set of, legal tradition;s< can lead to a skewed view of what an inclusive approach to international criminal law would require.


Page 16


0. CO CONC NCLU LUSI SION ON Treaties or conventions are the most concrete forms of international law. 1overnments, as agents of the sovereign states they represent, contract when they sign and ratify treaties or international conventions to be bound by mutual agreement to the terms of these documents. Treaties, customs and general principles are stated as the three primary sources5 sources5 and judicial decisions and scholarly writings are expressly designated as the subsidiary sources of international criminal law. !nother !nother important source of international law is customary practice. $ver times such customary international law often becomes codified later in treaties or conventions. The relationship between treaties and international customs is complex. They co:exist, develop each other and sometimes clash. If there is a clash between a customary rule and provision of a treaty then, because they are of equal authority ;except when the customary rule involved is of a jus a jus cogens nature< cogens nature< whereupon being superior it will prevail, the one that is identified as being the lex specialis will prevail. The lex specialis will be determined contextually.


Page 17


1. (I(LIO (I(LIOG&A G&A# #2 2 •

STATUTES

). I&& 'tatute +. I&T* 'tatute 0. 'tatute of International &ourt of 3ustice.

•

(OOKS

). &laus DreE, 8The &rime of 1enocide nder International Inter national aw9 ;+77F< ;+77F< F I&* (F)( +. 4apo !kande, 8'ources of International &riminal aw9 in !ntonio !ntonio &assese et al. ;eds.<, The $xford &ompanion to International &riminal 3ustice . 0. 1lanville Williams, 8The 4efinition of &rime9 ;)6>>< A &urrent egal 2roblems )7@ (. -. &herif "assiouni ;ed.<, International &riminal aw, 0rd edn ;eiden, +77A< vol. I, )+6, )0(?>. >. $ppenheim9s International aw ;6th edn, ondon, )66(< >?@.


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Sources of International Criminal Law

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