Custom as a Source Under Article 21 of the Rome Statute

Court Of Justice ◽

International Court ◽

The Icj ◽

Abstract The adoption of the Rome Statute is a significant moment for international criminal law. Before its formulation, the criminal law was governed by the sources mentioned in their statute or Article 38 of the Statute of the International Court of Justice [ICJ Statute]. Custom is one of the important sources within the ICJ Statute. The ad hoc tribunals applied custom and even formulated certain customs. The formulation of custom is considered as against the principle of legality. To avoid such criticism, the State Parties inserted Article 21 in the Rome Statute. The provision clarifies the law which the court can apply. The parties chose not to include custom explicitly. However, the wordings of the provision indicate that the custom is still a source for the court. Apart from the wording of Article 21, other provisions of the Statute give ample scope for the application of custom.

The ICC and the Crime of Aggression: A Need to Reconcile the Prerogatives of the SC, the ICC and the ICJ

10.1163/157181208x360512 ◽

2008 ◽

Vol 8 (4) ◽

pp. 655-686

Author(s):

Vimalen Reddi

Keyword(s):

Rome Statute ◽

International Criminal ◽

Potential Interaction ◽

Criminal Court ◽

Court Of Justice ◽

International Court ◽

Un Security Council ◽

The Icj ◽

International Rule

AbstractThis paper proposes a framework under which the ICC should exercise jurisdiction over the crime of aggression, in view of the much anticipated and impending Review Conference of the Rome Statute. In this context, it examines the potential interaction between the UN Security Council, the International Criminal Court and the International Court of Justice, in an eventual prosecutorial regime for the crime of aggression. The paper's underlying premise rests on the vindication of an international rule of law, so often dismissed in international relations.

The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽

10.1017/s2398772300009107 ◽

2016 ◽

Vol 110 ◽

pp. 245-250

Author(s):

Bing Bing Jia

Keyword(s):

Criminal Law ◽

International Criminal Court ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

International Criminal Tribunal ◽

Criminal Court ◽

Decision Makers ◽

International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

Dispute Settlement under the Rome Statute of the International Criminal Court: Article 119 and the Possible Role of the International Court of Justice

Chinese Journal of International Law ◽

10.1093/chinesejil/jml006 ◽

2006 ◽

Vol 5 (1) ◽

pp. 67-78 ◽

Cited By ~ 2

Author(s):

Timothy O'Neill

Keyword(s):

International Criminal Court ◽

Rome Statute ◽

Dispute Settlement ◽

International Criminal ◽

Criminal Court ◽

Court Of Justice ◽

International Court

Sources of International Humanitarian Law and International Criminal Law

10.1093/law/9780198745365.003.0043 ◽

2018 ◽

Author(s):

Steven R. Ratner

Keyword(s):

Criminal Law ◽

International Humanitarian Law ◽

Humanitarian Law ◽

International Courts ◽

Court Of Justice ◽

International Court ◽

Necessary And Sufficient ◽

Shed Light

This chapter contends that international humanitarian law (IHL) and criminal law (ICL) cast serious doubt on the traditional doctrine and understanding of sources. Article 38 of the International Court of Justice (ICJ) Statute inadequately describes key modes for prescribing law in these areas. International courts are particularly important for both areas, perhaps because of their unprincipled approach to the indicia of custom. More fundamentally, IHL and ICL suggest that sources scholarship should see itself not as determining necessary and sufficient methods for the making of law, but rather as a search for relevant inputs that become indicators of law. Under this view, certain processes are more authoritative than others, but all deserve scrutiny. Moreover, a theory of sources must take account of the purpose of understanding sources, which is to promote compliance with rules. IHL and ICL also shed light on the importance of morality and ethics to the law-making process.

Preventing the Forcibly Displaced from Returning as Persecution and Inhumane Act under International Criminal Law and the Rome Statute

10.1163/15718123-bja10118 ◽

2021 ◽

pp. 1-37

Author(s):

Elena Katselli Proukaki

Keyword(s):

Human Rights ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Territorial Jurisdiction ◽

Criminal Jurisprudence ◽

Human Rights Standards ◽

Abstract Preventing the forcibly displaced from returning to the territory from which they were unlawfully expelled has not received adequate attention under international criminal law. This article addresses this gap by focusing on denial of return as a crime against humanity. It evaluates international criminal jurisprudence including the proceedings concerning the Rohingya and evolving human rights standards to show that prevention from returning is a serious and continuing denial of fundamental human rights which inflicts great suffering. As such, it may qualify as persecution and/or an inhumane act under the Rome Statute. The ramifications of this on the temporal and territorial jurisdiction of the International Criminal Court and the principle of legality are important especially in situations of protracted displacement. The article demonstrates that although criminalisation of denial of return is not a panacea, it is instrumental in tackling forced displacement which affects millions across the world.

What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute

10.1163/15718123-bja10113 ◽

2021 ◽

pp. 1-29

Author(s):

Cristina Fernández-Pacheco Estrada

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Case Law ◽

Criminal Court ◽

Early Release ◽

International Criminal Tribunals ◽

The Many

Abstract Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.

A Commander’s Motivations and Geographical Remoteness under Command Responsibility: An Analysis of Controversial Issues of the Bemba Appeal Judgment

10.1163/15718123-bja10072 ◽

2021 ◽

pp. 1-31

Author(s):

Matteo Colorio

Keyword(s):

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Crime Scene ◽

Criminal Court ◽

International Humanitarian Law ◽

Controversial Issues ◽

Humanitarian Law ◽

Abstract The Bemba Appeal Judgment undermines confident prospects that the International Criminal Court could make a greater use of charges alleging command responsibility. This judgment introduces serious uncertainties in the law on command responsibility, in particular by reflecting long-lasting disputes concerning this doctrine on the ‘all necessary and reasonable measures’ element under Article 28 of the Rome Statute. The Bemba Appeal Judgment, indeed, includes a controversial evaluation of the relevance of a commander’s motivations in taking measures and of her geographical remoteness from the crime scene. This Article analyses these issues through the lenses of International Humanitarian Law and of fundamental principles of International Criminal Law, in particular the principle of legality and the principle of individual culpability.

The Evolution of International Criminal Law: Prosecuting 'New' Crimes before the Special Court for Sierra Leone

10.1163/157181211x559662 ◽

2011 ◽

Vol 11 (2) ◽

pp. 217-239 ◽

Cited By ~ 1

Author(s):

Sara Wharton

Keyword(s):

Sierra Leone ◽

Criminal Law ◽

International Criminal ◽

Child Soldiers ◽

Forced Marriage ◽

Sexual Slavery ◽

International Court ◽

The Law ◽

AbstractThe Special Court for Sierra Leone has been noted for becoming the first international court to convict accused of the crimes of sexual slavery, the use of child soldiers, 'forced marriage', and intentionally directing attacks against peacekeepers. This article analyzes how prosecutions of some of these supposedly 'new' crimes were found not to be in violation of the principle of legality, nullum crimen sine lege. In particular, this article will focus on the crimes of 'forced marriage', intentionally directing attacks against peacekeepers, and sexual slavery: the judgments in the RUF case (Prosecutor v. Sesay, Kallon and Gbao) and the AFRC case (Prosecutor v. Brima, Kamara and Kanu) together reveal two different processes through which the law has proven able to evolve and adapt to accommodate so-called 'new' crimes without violating the principle of legality.

The Malabo Protocol, the ICC, and the Idea of ‘Regional Complementarity’

Journal of International Criminal Justice ◽

10.1093/jicj/mqz040 ◽

2019 ◽

Cited By ~ 1

Author(s):

Sarah Nimigan

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

Judicial Interpretation ◽

Ongoing Development ◽

Principle Of Complementarity

Abstract The African Union (AU) has taken steps to regionalize international criminal law through the expansion of the African Court of Justice and Human Rights (ACJHR) vis-à-vis the Malabo Protocol. The principle of complementarity is a cornerstone of the Rome Statute of the International Criminal Court (ICC). The Rome Statute crystallizes a complementary relationship between the ICC and domestic legal systems under Article 17 but makes no mention of regional or ad hoc jurisdictions. Prospects for including regional jurisdictions within the principle of complementarity are contingent upon a positive judicial interpretation of the principle and clearly established obligations at each level. It will necessarily require funding and support by states. Such an approach will contribute to the ongoing development of a robust system of international criminal justice. In order to effectively resolve the issue of competing mandates and effective domestic implementation, a cooperative model needs to be espoused. Although hypothetical at present, the idea of ‘regional complementarity’ is one worth thinking about in the context of constructive reform at the ICC. The prospective ACJHR offers a useful framework to analyse the potential role of regional mechanisms within the international criminal law project, broadly considered.

The Principle of Legality at the Crossroads of Human Rights and International Criminal Law

10.1093/oso/9780190272654.003.0012 ◽

2018 ◽

Author(s):

Shane Darcy

Keyword(s):

Human Rights ◽

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

International Criminal Tribunals ◽

Ex Post ◽

European Court ◽

Ex Post Facto ◽

This chapter explores the treatment of the principle of legality in international criminal law, in particular the rule against ex post facto application of criminal laws, as enshrined in human rights law. It demonstrates that a broadly liberal interpretation of nullum crimen has facilitated judicial creativity and the development of international criminal law by international courts and tribunals. The chapter begins with a general discussion of the principle of legality under international law, before turning to a consideration of the treatment of the principle at Nuremberg and the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The final section of the chapter turns to the European Court of Human Rights and examines how it has addressed the rule of non-retroactivity in the context of national prosecutions of international crimes, in particular in Kononov v. Latvia.