Public International Law Midterm

Electronic copy available at: http://ssrn.com/abstract=2594729

General Principles of Law, Judicial Creativity and the

Development of International Criminal Law

Fabián O. Raimondo*

I. Introduction

The International Criminal Tribunals have often invoked Article 38 of the International

Court of Justice Statute and the ‘usual sources of international law’ in order to identify

the law applicable to their operations. 1 As is well known, the principal sources of

international law are international treaties, custom, and general principles of law. 2 In

international criminal law, the expression ‘general principles of law’ is by and large used

to mean legal principles generally recognized in national law. This understanding is

present in the case law of the International Criminal Tribunal for the former Yugoslavia

(ICTY) and the International Criminal Tribunal for Rwanda (ICTR), 3 as well as by the

text of Article 21(1)(c) of the Rome Statute of the International Criminal Court (ICC). 4

Classically, general principles of law as a source of international law are deemed

to be subsidiary in nature; subsidiary, in the sense that if there exists an applicable

conventional or customary rule, this shall prevail. 5 The ad hoc Tribunals have resorted to

general principles of law in their decisions in order to fill legal gaps, to interpret unclear

legal rules, and to reinforce their legal reasoning by applying a conventional or a

customary rule of international law and a general principle of law simultaneously. 6 In

contrast with the Internatioanl Court of Justice (ICJ) for instance, the ad hoc Tribunals

have frequently had recourse to general principles of law in order to address legal

gaps. This may be largely due to the fact that international criminal law at the time of the

creation of the Tribunals was a fairly new field of international law and was thus

considerably under-developed. 7 It is worth observing that the gap-filling function of

* Assistant Professor of Public International Law, Maastricht University. Member of the List of Counsel

before the International Criminal Court. 1 See, for example, Prosecutor v. Delalić et al., Judgment, Case No. IT-96-21-T, T.Ch. IIquater, 16

November 1998, § 414; and Prosecutor v. Tadić, Judgment on Allegation of Contempt against Prior

Counsel, Milan Vujin, Case No. IT-94-1-A-AR77, App.Ch., 31 January 2000, §13. 2 Cf. Article 38 of the Statute of the International Court of Justice (ICJ). According to Pellet and Daillier,

international lawyers agree that that legal provision reflects general international law. See Pellet, Alain and

Daillier, Patrick, Droit international public, 7 th

edition, Paris, Librairie Générale de Droit et Jurisprudence,

2002, p. 114, § 59. 3 For an examination of the case law of the ad hoc tribunals on general principles of law see generally

Raimondo, Fabián, General Principles of Law in the Decisions of International Criminal Courts and

Tribunals, The Hague, Brill / Martinus Nijhoff Publisher, 2008, 234 pp. 4 Also in general international law it prevails the conception of general principles of law as being those

generally recognized in foro domestico; see Raimondo, Fabián, ibid., pp. 41-42. For an opposite

conception, i.e. general principles of law encompass principles generally recognized in national law and

principles generally recognized in international law see Case concerning Pulp Mills (Argentina v.

Uruguay), Separate Opinion of Judge Cançado Trindade, International Court of Justice, 20 April 2010, §§

26-51. 5 See Article 5 of the draft resolution by the Institut de Droit International, Annuaire de l’Institut de Droit

International, Paris, Pedone, Vol. 37, pp. 324-325, 328. 6 See Raimondo, Fabián, op. cit. 3, pp. 171-173.

7 For an explanation of the then rudimentary character of international criminal law see Cassesse, Antonio,

International Criminal Law, (Oxford University Press, Oxford 2008 (2 nd

edn.)), pp. 3-13..

Electronic copy available at: http://ssrn.com/abstract=2594729

2

general principles of law has been particularly important in the practice of the ad hoc

Tribunals, and for international criminal law more generally, because it has helped to

identify those areas of the field in need of further regulation.

General principles of law are abstractions of legal rules from national legal

orders. Given the malleability of their legal content, the ad hoc Tribunals have at times

been tempted to pinpoint a general principle that best suited their needs in the case at

hand. In doing so, the question has been prompted as to whether international courts or

tribunals can make law. The classical view is that judicial bodies do not create law, but

rather that they assist in identifying those rules of international law which do

exist. 8 However, in modern times that view has been challenged by a number of

international lawyers, such as Rosalyn Higgins, Alan Boyle, and Christine

Chinkin. 9 This chapter explores issues of judicial creativity by the ad hoc Tribunals in

the context of their application of general principles of law. It demonstrates that some of

those instances led to the development of international criminal law, perhaps to the point

of judicial law-making. It submits that it will be rather more difficult for the ICC to be as

creative as the ad hoc Tribunals have been with regard to the application of general

principles of law, as the legal regime of ICC is much more detailed than those pertaining

to the latter judicial bodies.

This chapter considers the treatment of general principles of law by the ad hoc

Tribunals in the context of their inherent powers and in relation to the applicable

substantive law. Section II considers the role that has been played in the practice and

jurisprudence of the ad hoc Tribunals against the background of their perceived inherent

powers. It shows how the ICTY adjusted the meaning of the principle that courts must be

‘established by law’ to the specific circumstances of international criminal justice. The

disccussion of the ICTR’s application of the iura novit curia principle in appellate

proceedings considers how this led to the enactment of a precise provision on this matter

in the Tribunal’s regulations. This section also considers whether the ad hoc Tribunals

have the inherent power to deal with contempt under general principles of law. Section

III explores the use of general principles of law in the context of the substantive law of

defences and crimes. It shows the influence of the discussion of duress as a complete

defence under general principles of law on the Rome Statute of the ICC and considers

how the ICTY crafted a definition of the crime of rape via recourse to general principles

of law. By way of a contrast, Section IV outlines the emerging case law of the ICC on

general principles of law and in doing so, anticipates a more restricted role for this source

in the future in international criminal law than that which has been seen to date. The

conclusion is drawn in Section V that the ad hoc tribunals have identified areas of

international criminal law in need of regulation and have determined the existence and

content of some ‘general principles of law’ to the point of judicial lawmaking.

8 Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the

Proceedings of the Committee, 16 June-24 July 1920, intervention by Baron Descamps at p. 336. 9 See Higgins, Rosalyn, Problems and Process: International Law and How we Use It, New York, Oxford

University Press, 1995, p. 3 et seq; Boyle, Alan and Chinkin, Christine, The Making of International Law,

New York, Oxford University Press, 2007, chapter 6.

3

II. General Principles of Law and the Inherent Powers of the ad hoc

Tribunals

International courts and tribunals apply general principles of law by analogy, 10

that is, to

the extent that there is an appropriate similarity between the national law institution from

which the legal principle derives (the source of the analogy) and the parallel international

law institution in which the legal principle would apply (the target of the analogy). 11

Once the existence of an appropriate analogy is established, the application of general

principles of law by international courts and tribunals requires the previous transposition

of those principles from national legal systems into international law. During the

transposition, general principles of law may require ‘adaptation’ to their new setting,

international law, given the different approaches between international law and national

legal systems regarding sources, subjects, and enforcement mechanisms. Otherwise, they

may be applied in international law without prior adaptation. 12

Judge Cassese has vigorously opposed mechanical transpositions of national law

concepts, such as general principles of law, into international criminal law. 13

In his view,

the reasons for this are threefold. First, international criminal courts and tribunals should

look at all the means available at the international level before resorting to national law.

Secondly, international criminal law results from the combination of civil law and

common law systems; 14

it is thus unique, in that it possesses a legal logic that is

significantly different from that of each of those two legal families. Thirdly, international

criminal proceedings are rather different from national criminal proceedings. 15

Judge

Cassesse was right in affirming that national law concepts, including general principles of

law, should not be mechanically applied at the international level. But his other two

arguments are not necessarily compelling. Thus, it is right to avow that one should

examine international law before having recourse to national law; after all, it is

understood that international courts and tribunals apply first and foremost international

law. The initial examination should cover the principal sources of international law, that

is, international treaties and customary law, and for the ad hoc Tribunals, the binding

resolutions of the United Nations Security Council which contained the Statutes of the

ICTY and the ICTR.

However, it is worth recalling that the combination of civil law and common law

systems is not limited to international criminal law and international trials. National

criminal procedures are to differing extents always hybrid and ‘pure’; inquisitorial or

10

See Lauterpacht, Hersch, Private Law Sources and Analogies of International Law (With Special

Reference to International Arbitration), London, Longman, Green and Co., 1927, pp. 81-87; Anzilotti,

Dionisio, Corso di Diritto Internazionale, 3ª ed., Rome, Atheneum, 1928, pp. 106-109. 11

This terminology follows Weinreb, Lloyd, Legal Reason: The Use of Analogy in Legal Argument,

Cambridge, Cambridge University Press, 2005, pp. 20-21. 12

See Raimondo, op. cit. 3, p. 58 et seq. 13

Prosecutor v. Erdemović, Judgment, Separate and Dissenting Opinion of Judge Cassese, Case No. IT-

96-22-A, App. Ch., 7 October 1997. 14

As explained elsewhere (see op. cit. 3, p. 55), there is a preference for the term ‘Romano-Germanic’ to

the term ‘civil law’ because it acknowledges the efforts made by universities of Latin and German

countries to develop legal studies after the 12 th

century. However in this chapter, the term ‘civil law’ is

used for the sake of consistency with the other chapters of this collection. 15

Prosecutor v. Erdemović, Judgment, Separate and Dissenting Opinion of Judge Cassese, Case No. IT-

96-22-A, App. Ch., 7 October 1997, paras 2-5.

4

adversarial criminal procedures probably do not exist. 16

In addition, the combination of

civil law and common law elements would not unavoidably thwart the application of

general principles of law, because, by definition, these are legal principles common to the

main legal families of the world. 17

Furthermore, it should be noted that the quintessence of national and international

trials is the same, i.e. establishing whether a criminal offence has been perpetrated, and,

in the affirmative, determining the quantum and modality of the penalty to be imposed on

the convicted person. 18

The basic analogies between domestic and international criminal

law make possible the transposition of general principles of law into international

criminal law and their ensuing application to the case in hand.

Accordingly, although it is acceptable to argue that the transposition of general

principles of law into the international arena must not be mechanic, it is also right to

assert that the ad hoc Tribunals have in fact never rejected the application of general

principles of law into international criminal law just because of their inconsistency with

the structure of the latter. Furthermore, the practice of the ad hoc Tribunals reveals that

in those exceptional junctures in which some incongruity arose, the Tribunal concerned

has adjusted the contents of the general principle of law at stake to the features of

international law and applied it to the case. A clear example of this is the application by

the ICTY in the Tadić case of the general principle of law that courts must be established

by law. 19

According to the Defence in Tadić, the establishment of the ICTY was illegal

because it was not established by law. To be duly established by law, in its view, the

ICTY should have been created by treaty or by an amendment of the United

Nations Charter. 20

The International Covenant on Civil and Political Rights, the

European Convention on Human Rights and Fundamental Freedoms, and the American

Convention on Human Rights insist on the right to a fair trial by a competent,

independent, and impartial tribunal established by law. 21

In the Defence’s view, this right

is a general principle of law because of its fundamental nature and since it is a minimum

condition for the administration of international criminal justice. 22

The Appeals Chamber held that the principle whereby courts must be established

by law imposes an international obligation that applies only to domestic systems of

16

Pastor, Daniel, ‘El sistema penal internacional del Estatuto de Roma. Aproximaciones jurídicas críticas’,

in Baigún, David et al., Estudios sobre justicia penal. Homenaje al Profesor Julio B. J. Maier, Buenos

Aires, Editores del Puerto, 2005, pp. 701-702. 17

See for example the definition of general principles of law in Article 21(1)(c) of the Rome Statute of the

ICC, especially the French version, as it is more telling in that regard. 18

See Gil y Gil, Alicia, Derecho penal internacional: especial consideración del delito de genocidio,

Madrid, Tecnos, 1999, p. 20. 19

Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case

No. IT-94-1-AR72, App. Ch., 2 October 1995, § 42. 20

Ibid., paras 26-27. 21

Article 14 (1) of the ICCPR reads as follows: ‘In the determination of any criminal charge against him,

or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established by law.’ This right is also provided for the

ECHR (Article 6, paragraph 1) and the ACHR (Article 8, paragraph 1). For a commentary on that legal

provision of the ICCPR see Joseph, Sarah et al., op. cit. 301, pp. 391-426. 22

Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case

No. IT-94-1-AR72, App. Ch., 2 October 1995, § 41.

5

criminal justice. 23

It went on to explain that the principle cannot mean the same at both

the national and international levels, as the legislative, executive and judicial division of

powers which prevails in the generality of national legal systems does not apply to the

international setting nor to the United Nations. Hence, the separation of powers element

of the condition that a tribunal be ‘established by law’ does not apply in the international

context. 24

In spite of these considerations, the Appeals Chamber did not refuse to apply the

principle that courts must be established by law, but it interpreted the principle in a

different way from the typical interpretation at the national level. According to the

Appeals Chamber, an international court or tribunal is deemed to be established by law if

it provides for all guarantees of fairness in full conformity with internationally recognized

human rights standards. 25

In its view, this interpretation is the ‘most sensible’ and ‘most

likely meaning’ in international law. 26

Given that the ICTY is ‘established by law’,

because the Statute and Rules of Procedure and Evidence of the Tribunal guarantee a fair

trial as well as the impartiality and independence of the judges, 27

the Appeals Chamber

dismissed the Defence’s appeal on this ground. 28

It is true that the meaning of the principle that a court must be established by law

cannot be the same at the international level as that at the level of national legal

systems. The reason is that in national legal systems the word ‘law’ in the term

‘established by law’ means the law of the parliament or congress 29

and, as the Appeals

Chamber declared, there is no such thing in international society. The Appeals Chamber

did not, however, reject the application of the principle but rather adjusted the meaning of

the principle to the special characteristics of the international setting. Following the

adjustment, the principle meant for the Appeals Chamber that an international criminal

court or tribunal is ‘to be rooted in the rule of law and offer all guarantees embodied in

the relevant international instruments’. 30

It would appear that the adjustment added little or nothing to the meaning of the

principle given that the ICTY, as well as any other international criminal court or

tribunal, are already bound to comply with the rule of law and to ensure a fair trial for

accused persons. The obligation to ensure a fair trial was also laid down in the Statutes

of the ad hoc Tribunals and in customary law. 31

What is more, the ICTY Appeals

Chamber deemed that this due process obligation was part of ius cogens, that Article 14

of the International Covenant on Civil and Political Rights ‘reflects an imperative norm

of international law to which the Tribunal must adhere’. 32

In short, the ICTY was already

23

Ibid., § 42. 24

Ibid., para 43. 25

Ibid., para 45. 26

Ibid. 27

Ibid., paras 45-46. 28

Ibid., para 47. 29

See Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case

No. IT-94-1-AR72, App.Ch., 2 October 1995, § 43. 30

Ibid., para 42. 31

Prosecutor v. Kayishema and Ruzindana, Judgment (Reasons), Case No. ICTR-95-1-A, App.Ch., 1 June

2001, para 51. 32

Prosecutor v. Tadić, Appeals Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin,

Case No. IT-94-1-A-AR77, App. Ch., 27 February 2001, p. 3. See also Lambert-Abdelgawad, Elisabet,

‘Les Tribunaux pénaux pour l’ex-Yougoslavie et le Rwanda et l’appel aux sources du droit international

6

bound to comply with the rule of law regardless of the applicability of the principle that

courts must be established by law.

Consequently, if one takes for granted that the ICTY should be rooted in the rule

of law pursuant to its regulatory instruments and to customary law, then the best

interpretation of the principle ‘courts must be established by law’ is the second possible

interpretation mentioned by the Appeals Chamber. It considered that ‘established by

law’ means the establishment of international courts and tribunals by an organ with the

power to take compulsory decisions, such as the UN Security Council when acting under

Chapter VII of the UN Charter. 33

Yet, the Appeals Chamber rejected this interpretation

as, in its view, the ‘most sensible and most likely meaning of the term in the context of

international law’ is that ‘established by law’ means that the ICTY must be rooted in the

rule of law. 34

Be this as it may, this example also shows the flexibility of the legal

content of general principles of law, an adaptability that has allowed for the crafting of

general principles of law to best suit the interests of the ad hoc Tribunals.

The Tadić approach to general principles of law paved the way for further

reliance on this source of international law and also for the adoption of a flexible

approach in its interpretation. General principles of law were used to fill perceived gaps

in the law by the ICTR Appeals Chamber in the Kambanda case. 35

In its judgment, the

Appeals Chamber applied the iura novit curia principle, as Kambanda had put forward on

appeal that if the Appeals Chamber were to dismiss his chief request to reverse the guilty

verdict and order a retrial, it should also revise the whole sentence on five legal

grounds. However, he failed to submit any legal ground and the Prosecution argued, in

its turn, that the appellant’s failure to put forward any legal arguments was enough reason

at the outset to dismiss Kambanda’s submissions. 36

Against this background, the Appeals

Chamber held that in the case of errors of law, the arguments of the parties do not exhaust

the subject. In other words: iura novit curia. In this vein, it considered the issue raised

on appeal even in the absence of substantial argument presented by the appellant. 37

This example illustrates that legal problems adjudicated by international criminal

courts and tribunals on the basis of general principles of law may result in the enactment

of suitable legal rules to address such problems. In fact, two years after Kambanda the

President of the ICTR Appeals Chamber enacted the Practice Direction on Formal

Requirements for Appeal from Judgments. 38

One of those requirements is that legal

reasons are submitted with regard to the grounds of appeal. 39

If a party to the appellate

proceedings does not comply with the requirements stipulated in the Practice Direction, a

Pre-Trial Judge or the Appeals Chamber may, ‘within its discretion, decide upon an

appropriate sanction, which can include an order for clarification or re-filing. The

Appeals Chamber may also reject a filing or dismiss submissions therein’. 40

des droits de l’homme’, in Delmas-Marty, Mireille et al. (eds.), Les sources du droit international pénal,

Paris, Société de législation comparée, 2004, p. 105. 33

Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case

No. IT-94-1-AR72, App.Ch., 2 October 1995, para 44. 34

Ibid., para 45. 35

Kambanda v. The Prosecutor, Judgment, Case No. ICTR97-23-A, App. Ch., 19 October 2000. 36

Ibid., para 96. 37

Ibid., para 98. 38

Text in http://69.94.11.53/ENGLISH/basicdocs/pracdirections/formalreqe.htm. 39

Ibid., Article 4(a). 40

Ibid., Article 13.

7

The use of general principles of law has been particularly promintent at the ad hoc

Tribunals in the context of the inherent power, or otherwise, to deal with the matter of

contempt. It has revealed an at times questionable method for determining the existence

of general principels of law. The ad hoc Tribunals have usually determined the existence

and content of general principles of law by relying on their own or other international

decisions, or by comparative law. 41

The comparison of national legal systems typically

consists of two distinct actions, which can be termed the ‘vertical move’ and the

‘horizontal move’. 42

The ‘vertical move’ is the process of abstraction of domestic legal

rules aimed at distilling an underlying legal principle. 43

The ad hoc Tribunals have

derived general principles of law chiefly from national constitutions, statutes, and court

decisions. Such a methodology is acceptable because in general domestic criminal law is

to be found in those legal sources. 44

The ‘horizontal move’ is the corroboration that the

generality of nations in fact acknowledges the legal principle obtained as a result of the

vertical move. 45

It would appear that the ad hoc Tribunals have at times manipulated the process

of abstraction of legal rules from national legal systems, so as to create a legal principle

apt for settling the legal issue at hand rather than to identify an existing legal principle.

In the judgment on allegation of contempt against the prior counsel of Dŭsko Tadić, this

matter came to the fore. In its judgment, the ICTY Appeals Chamber asserted the

existence of a general principle of law whereby courts have an inherent power to deal

with contempt. 46

The accused submitted that the changes made to Rule 77 of the

ICTY Rules of Procedure and Evidence during the relevant period expanded the ambit of

conduct that amounted to contempt of the Tribunal, thereby jeopardizing his due process

rights. 47

Rule 77 describes the conduct that amounts to contempt. 48

Prior to the last

amendment of Rule 77, it had stated in paragraph (E) that nothing in the rule affected the

inherent power of the ICTY to hold in contempt persons who knowingly and wilfully

interfered with its administration of justice. Since that amendment, Rule 77 no longer

refers to such an inherent power.

In its treatment of the issue, the Appeals Chamber held that as a preliminary point

it was necessary to examine the general question of the ICTY’s power to deal with

contempt. It found that the ICTY has this power as it is necessary for an international

criminal tribunal to take action against interferences in the administration of justice. As

for the content of the power, that could be determined in light of the ‘usual sources of

41

See Raimondo, Fabián, op. cit. 3, p. 173 et seq. 42

Cf. Elias, Olufemi and Lim, Chin, ‘”General Principles of Law”, “Soft” Law and the Identification of

International Law’, Netherlands Yearbook of International Law, Vol. 28, 1997, pp. 3-49. 43

Raimondo, Fabián. op. cit. 3, pp. 46-50. 44

Ibid. 45

Ibid., pp. 51-57. 46

Prosecutor v. Tadić, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, Case

No. IT-94-1-A-R77, App. Ch., 31 January 2000. 47

Prosecutor v. Tadić, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, Case

No. IT-94-1-A-AR77, App. Ch., 31 January 2000, para 12. 48

Rule 77 was adopted on 11 February 1994, revised on 30 January 1995, amended on 25 July 1997,

revised again on 12 November 1997 and amended again on 13 December 2001. See

www.un.org/icty/legaldoc-e/index.htm (last visited on 25 May 2010).

8

international law’. 49

Customary law did not regulate the matter, in the Tribunal’s

view. 50

Thus the Appeals Chamber proceeded to examine the ‘general principles of law

common to the major legal systems of the world, as developed and refined (where

applicable) in international jurisprudence’: 51

in short, the general principles of law.

Despite the fact that the law of contempt originated in the context of the common

law, many civil law legal systems have passed legislation with parallel results. 52

While

the power to deal with contempt in common law legal systems is part of the inherent

jurisdiction of the courts, in the civil law legal family the power comes into existence

only if enacted by legislation. 53

In spite of those findings, the Appeals Chamber

concluded that the ICTY’s inherent power to deal with contempt had existed since the

establishment of the ICTY and it was not contingent on the existence of a specific

provision of the Rules of Procedure and Evidence. 54

It is not certain whether there is a

general principle of law giving courts the inherent power to deal with contempt, contrary

to the Appeals Chamber’s contention. The reason is that, as the Appeals Chamber

showed, in the national legal systems of civil law countries the power to deal with

contempt is only granted by a legislative act. There is thus no legal principle common to

the main legal families of the world in that particular regard.

Scholarly writings on this judgment have disapproved of the Appeals Chamber’s

conclusion. According to Cockayne, the conclusion is disconcerting because the

evidence presented by the Appeals Chamber can also be interpreted in the sense that civil

law legal systems do not consider it vital for criminal courts to have the power to deal

with contempt, and that, where the power is deemed essential, it must be granted by

legislation. Had the ICTY followed that approach, it would have been able to exercise

such power only if the United Nations Security Council had invested it with such. 55

The

‘identification’ of a general principle of law that courts have the inherent power to deal

with contempt has amounted to judicial lawmaking, as the ICTY expanded the scope of

jurisdiction attributed to it by the Security Council by relying on and applying a principle

whose very existence is in fact doubtful. Beyond such procedural matters, the ad hoc

Tribunals have also used general principles of law as a means for judicial creativity in the

field of substantive criminal law.

III. General Principles and the Substantive Law

49

Prosecutor v. Tadić, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, Case

No. IT-94-1-A-AR77, App. Ch., 31 January 2000, para 13. 50

Ibid., § 14. 51

Ibid., § 15. 52

Ibid. 53

Ibid., § 17. 54

‘The inherent power of the Tribunal to deal with contempt has necessarily existed ever since its creation,

and the existence of that power does not depend upon a reference being made to it in the Rules of

Procedure and Evidence. As the Appeals Chamber is satisfied that the current formulation of Rules 77(A)

to (D) falls within that inherent power, the amendments made in December 1998 did not increase the nature

of the conduct which amounts to contempt to the prejudice of the Respondent’s rights.’ Ibid., § 28. The

finding was reaffirmed in a subsequent decision: Prosecutor v. Aleksovski, Judgment on Appeal by Anto

Nobilo against Finding of Contempt, Case No. IT-95-14/1-AR77, App. Ch., 30 May 2001, para 38. 55

Cockayne, James, ‘Commentary’, in Klip, André and Sluiter, Göran (eds.), Annotated Leading Cases of

International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia 1999-

2000, Antwerpen, Intersentia, Vol. 4, 2002, p. 193.

9

The ad hoc Tribunals have resorted to general principles of law across a spectrum of

legal issues that have arisen in the course of their acitivities. In the context of the

substantive international criminal law, general principles of law have been relied upon by

the Tribunals in establishing the scope of permissible defences and in defining the

elements of specific crimes. The judgment of the ICTY Appeals Chamber in the

Erdemović case provides one of the most prominent examples of the crucial importance

that general principles of law may play as a source of international criminal law. The

same tribunal relied upon the principle of human dignity in the Furundžija proceedings in

order to advance a definition of the crime of rape under international criminal law.

In the Erdemović Appeals Chamber judgment, 56

the bench had to deal with

particularly contentious legal problems, as is evidenced in part by the appending of five

separate opinions to the judgment by the members of the Appeals Chamber. As far as

general principles of law are concerned, the majority of the Appeals Chamber denied the

existence of a principle whereby duress is a complete defence to a charge of crimes

against humanity or war crimes involving the killing of innocent persons. 57

Moreover, it

determined the existence of the general principle of law whereby duress is a mitigating

factor in sentencing.

Erdemović was charged with one count of a crime against humanity, or

alternatively with one count of a violation of the laws or customs of war. He had pleaded

guilty to the crime against humanity charge and the Trial Chamber had upheld the plea

and sentenced him to ten years imprisonment. 58

Following this, the Defence mounted an

appeal requesting the Appeals Chamber to revise the sentence, for the reason that the

crime had been committed under duress. The Appeals Chamber, by three votes to two,

held that duress is not a complete defence in international law to a charge of crimes

against humanity or war crimes involving the killing of innocent human beings. 59

According to Judges McDonald and Vohrah, the law to be applied was to be derived from

the sources listed in Article 38 of the Statute of the International Court of Justice. After

finding no applicable customary rule on the issue at hand, they compared a broad

spectrum of national legal systems in order to extract, if possible, a general principle of

law. In so doing they found the principle that duress is a mitigating factor in sentencing,

but not a complete defence against a charge involving the killing of innocent human

beings. 60

Judge Li was of the same opinion in that regard. 61

It is worth observing that the

comparative law analysis undertaken by Judges McDonald and Vohrah was

comprehensive. In encompassed thirty national legal systems which covered civil law

systems, common law systems, and a hybrid category which they called ‘criminal law of

other states’ (China, Ethiopia, Japan, Morocco and Somalia).

56

Prosecutor v. Erdemović, Judgment, Case No. IT-96-22-A, App. Ch., 7 October 1997. 57

For a general discussion on that issue see Ambos, Kai, ‘Other Grounds for Excluding Criminal

Responsibility’, in Cassese, Antonio et al. (eds.), The Rome Statute of the International Criminal Court: A

Commentary, Vol. I, New York, Oxford University Press, 2002, pp. 1003–1048. 58

Prosecutor v. Erdemović, Judgment, Case No. IT-96-22-A, App. Ch., 7 October 1997, paras 1–10. 59

Ibid., para 19. 60

Prosecutor v. Erdemović, Judgment, Joint Separate Opinion of Judge McDonald and Judge Vohrah,

Case No. IT-96-22-A, App.Ch., 7 October 1997, § 40, 55-72. 61

Prosecutor v. Erdemović, Judgment, Separate and Dissenting Opinion of Judge Li, Case No. IT-96-22-A,

App.Ch., 7 October 1997, § 3.

10

The judgment reveals that, notwithstanding the subsidiary nature of general

principles of law as a source of international law, these principles may have a decisive

role to play in international criminal law. Had the Appeals Chamber held that duress was

a complete defence under general principles of law, the defendant would have been

declared not guilty and released since he had been charged with only one count. Given

that the majority of the Appeals Chamber did not find that such a general principle

existed, Erdemović was sentenced to five years’ imprisonment. 62

As far as personal

defences are concerned, it may be the case that an individual’s liberty may depend on the

existence of a pertinent general principle of law.

In a more general sense, this treatment of the issue of duress as a complete

defence in international law to a charge of murder as a crime against humanity or war

crime has been the first divisive ICTY decision with respect to general principles of law.

The decision has led to the progressive development of international criminal law, albeit

with the reverse result: the ICC Statute acknowledges duress as a defence to such crimes,

meaning that the States Parties to this treaty have not followed the precedent of the

Appeals Chamber. 63

The judicial creativity of the Appeals Chamber was not favoured by

the drafts of the Rome Statute.

In the application of substantive international criminal law, the ad hoc Tribunals

have sometimes interpreted legal rules in light of value-oriented general principles such

as the principle of human dignity. Such a course of action has arguably resulted in

judicial law making from the bench. One such example is the resort to the principle of

human dignity by the ICTY in the Furundžija judgment in order to define the crime of

rape under international criminal law. The Prosecutor charged the defendant with a count

of violations of the laws and customs of war (outrages upon personal dignity including

rape under Article 3 of the Statute). The alleged act of rape consisted of forced oral

penetration. The Trial Chamber was unable to find a definition of the crime of rape

under the ICTY Statute or customary international law. Moreover it could not ascertain

the elements of the crime of rape under general principles of international criminal law

and general principles of international law. As a result, in order to interpret Article 3 of

the Statute, it deemed it crucial ‘to look for principles of criminal law common to the

major legal systems of the world’, 64

i.e. general principles of law

The Trial Chamber first found that the majority of national legal systems, from

both the civil law and the common law families, do not consider forced oral penetration

to be rape. 65

It would follow that under general principles of law the definition of the

crime of rape does not cover forced oral penetration. However, the Trial Chamber

adopted the following legal reasoning in confirming the act amounted to rape. First,

forced oral penetration is a humiliating and degrading attack on human dignity. Second,

the quintessence of international humanitarian law and human rights law lies in the

62

See Prosecutor v. Erdemović, Sentencing Judgment, Case No. IT-96-22-T bis, T.Ch. II ter, 5 March

1998, disposition. 63

Schabas, William, An Introduction to the International Criminal Court, Cambridge, Cambridge

University Press, 2001, pp. 90–91. See also Article 31, paragraph 1 (d), ICC Statute. See also Ambos, Kai,

‘Other Grounds for Excluding Criminal Responsibility’, in Cassesse, Antonio et al. (eds.), The Rome

Statute of the International Criminal Court: A Commentary, New York, Oxford University Press, 2002,

Vol. I, p. 1010 et seq. 64

Prosecutor v. Furundžija, Judgment, Case No. IT-95-17/1-T, T. Ch. II, 10 December 1998, para 177. 65

Ibid., § 181.

11

safeguard of human dignity. Thirdly, given the preceding reasons, forced oral

penetration should be qualified as rape. 66

In the end the Trial Chamber defined the actus

reus of the crime of rape as follows: (i) the sexual penetration, however slight: (a) of the

vagina or anus of the victim by the penis of the perpetrator or any other object used by

the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by

coercion or force or threat of force against the victim or a third person. 67

The material

element (actus reus) of the crime of rape as stated by the Trial Chamber is clearly wider

than that under general principles of law, by including forced oral penetration.

Regrettably, the majority of national legal systems still consider such misconduct as

sexual assault and not rape.

By relying on the value-oriented general principle of human dignity, the Trial

Chamber put forward a highly influential argument. Yet, it is worth observing that the

definition of the crime of rape by the Trial Chamber amounted to the creation of law

because it involved the formulation for the first time of a precise and detailed definition

of the objective and subjective elements of the crime of rape, rather than to the

identification of existing law. 68

This approach confirms how general principles of law

have acted as a useful source for the judicial creativity exercised by the ad hoc

Tribunals.More generally, it is worth observing that this Trial Chamber’s decision also

led to the progressive development of international criminal law: the Elements of Crimes

of the ICC contain a very similar definition of the actus reus of the crime of rape as a

crime against humanity and as a war crime. 69

IV. General Principles of Law at the ICC: Limiting Judicial Creativity?

The starting point for an analysis of the legal regime of general principles of law in the

context of the ICC is Article 21 of the Rome Statute, which states the law applicable by

the Court. This article sets out the specific law of the ICC, its Statute, the Elements of

Crimes, and the Rules of Procedure and Evidence, 70

and the more general sources of

international law, including conventions, custom, and general principles of law. 71

It

specifies that: ‘general principles of law derived by the Court from national laws of legal

systems of the world including, as appropriate, the national laws of States that would

normally exercise jurisdiction over the crime, provided that those principles are not

inconsistent with this Statute and with international law and internationally recognized

66

Ibid., para 183. 67

Ibid., para 185. 68

See further the contribution of Niamh Hayes to this collection. 69

See Elements of Crimes pertaining to Articles 7(1)(g)-1 and 8(2)(b)(xxii)-1. Paragraphs 1 and 2 common

to both provisions read as follows: ‘1. The perpetrator invaded the body of a person by conduct resulting in

penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ,

or of the anal or genital opening of the victim with any object or any other part of the body. 2. The

invasion was commited by force, or by threat of force or coercion, such as that caused by fear of violence,

duress, detention, psychological oppression or abuse of power, against such person or another person, or by

taking advantage of a coercive environment, or the invasion was committed against a person incapable of

giving genuine consent…’ The Elements of Crimes of the ICC were adopted on 9 September 2002 and

entered into force on the same date (source: http://www.icc-

cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Elements+of+Crimes.htm). 70

Article 21(1)(a). 71

Article 21(1)(b)-(c).

12

norms and standards’. 72

The formulation of this provision suggests that the ICC is to

apply general principles of law if no applicable rules can be identified in the special law

of the court or in conventional or customary law. The purpose, therefore, is to fill legal

gaps.

Unlike the Statutes and Rules of Procedure and Evidence of the ad hoc Tribunals,

the law of the ICC is almost all-encompassing and very detailed. It provides for legal

rules and regulates aspects of the proceedings that were not legislated for at the ad hoc

Tribunals, such as the functions and powers of the Pre-Trial Chamber, the elements of the

crimes, and victims’ participation in the process. This, together with the fact that the ad

hoc Tribunals have determined many customary rules of international criminal law (and,

in so doing, making them accessible to the ICC for their application pursuant to Article

21(1)(b)), limits the possibility for the ICC to resort to general principles of law in order

to fill gaps. It is thus not surprising that there have been just a few instances in which a

chamber of the Court has thus far dealt with such principles.

The first instance of such reliance on general principles related to an application

by the Prosecutor for extraordinary review of a decision denying leave to appeal. 73

The

Statute and the Rules of Procedure and Evidence do not provide for any extraordinary

review, 74

but the Prosecutor submitted that such a review could be granted on the basis of

general principles of law. 75

However, the Appeals Chamber noted that in all the civil law

and common law legal systems referred to by the Prosecutor, the right to review

decisions of lower courts is granted by legislation, and it accordingly dismissed the

motion. Concerning the practice of witness proofing, that is, measures intended to help

testifying witnesses in the process of recollection, the Pre-Trial found a great divergence

in the various national legal systems examined, 76

and concluded that there was no general

principle of law permitting witness proofing. 77

The ICC has also resorted to general principles in the context of the burden of

proof with regard to the evidence submitted in support of victims’ applications for

participation in the proceedings and the admissibility of evidence, an issue that is not

covered by the Rome Statute or the Rules of Procedure and Evidence. The Pre-Trial

Chamber applied the general principle of law that the burden of proof is on the claimant.

It also accepted, based on ICJ case law, 78

the general principle of law that proof may be

administered by means of circumstantial evidence. 79

The Pre-Trial Chamber’s later

decision to revoke the prohibition of contact and communication between two defendants

72

Rome Statute, Article 21(1)(c). 73

Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for

Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, Case

No.: ICC-01/04, App.Ch., 13 July 2006. 74

Ibid., § 3. 75

Ibid., §§ 5, 22. 76

Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga

Dyilo, Decision on the Practices of Witnesses Familiarization and Witness Proofing, Case No.: ICC-01/04-

01/06, PT.Ch. I, 8 November 2006, § 36. 77

Ibid., § 42. 78

See Raimondo, Fabián, op. cit. 3, p. 28. 79

Situation in Uganda in the Case of the Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo,

Dominic Ongwen, Decision on Victims’Applications for Participation a/0010/06, a/0064/06 to a/0070/06,

a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, Case No. ICC-02/04-01/05, PT Ch. II, 10 August

2007, §§ 13, 15.

13

was a dismissal of the Prosecutor’s application, because the analysis of case law made in

the Application was limited to merely two national jurisdictions. In the Pre-Trial

Chamber’s view, the sample was too limited to evidence the existence of a relevant

general principle of law. 80

These examples are few and far between, and highlight the

fact that the specialised law of the ICC is quite detailed in comparison with that of the ad

hoc Tribunals. The existence also of an important corpus of customary international

criminal law will also reduce the likelihood of identifiable legal gaps and thus remove the

necessity for resort to general principles of law in the future.

VIII. Conclusion

General principles of law have on occasion proved to be the ‘magic stick’ via which the

ad hoc Tribunals have been able to express their judicial creativity. By identifying gaps

in their statutes and rules of procedure and evidence, as well as in customary law, the ad

hoc Tribunals turned to these principles to address areas of international criminal law that

were in need of further regulation, such as the inherent powers of an international

criminal tribunal, grounds for excluding criminal responsibility and the definition of

crimes. In interpreting legal rules with the help of general principles of law, the ad hoc

Tribunals have often crafted precise and detailed legal rules, as was the case with the

crime of rape. The practice of the Tribunals thus challenges the fiction that judges do not

make law but rather that they simply identify and apply it.

The jurisprudence demonstrates that, as far as the application of general principles

of law is concerned, the ad hoc Tribunals have at times been extraordinarily creative.

Their position of forerunners allowed them to do so. In addition, the era in which the

Tribunals started operating, the 1990s, was marked by goodwill, enthusiasm and great

expectations, while international criminal law was under-developed. This scene and spirit

may have encouraged the ad hoc Tribunals to read beyond the black letter of the law and

to fill the book of international criminal law with newly found and created rules. It is

remarkable to contrast this approach with the ICC, a treaty-based institution with an

elaborate Statute that began operating in a new millennium. The ICC is much more

cautious in its use of general principles of law. So far, it has mainly turned to this source

of law to elaborate on procedural principles and it has done so mainly at the instigation of

the Prosecutor. The contrast between the ad hoc Tribunals’ use of general principles of

law with the more cautious approach of the ICC is illustrative of general principles of law

as a subsidiary source of law. It demonstrates that particularly in nascent areas and new

domains of international law, this source of law can play a powerful role. The ad hoc

Tribunals are to be praised for their functional and creative use of this source of law for

the advancement of the project of international criminal justice.

80

Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga

and Mathieu Ngudjolo Chui, Decision Revoking the Prohibition of Contact and Communication between

Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, PT.Ch. I, 13 March 2008, p.

12.