The role of Customary Law in International Criminal Law″ based on Ntaganda Case Study.

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The role of Customary Law in International Criminal Law

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The role of Customary Law in International Criminal Law

Introduction

Customary law refers to the laws, customs and practices of the indigenous people or communities. Customary law is based on the life and customs of a particular country or community. The charter of the United Nations has annexed the statute of the Permanent Court of International Justice by requiring it to decide disputes in accordance to the international law while at the same time considering the international custom (Diala, 2017). The customary law is an instrumental source of applicable law in International Criminal Court but it comes secondary after the written rules of the Rome Statutes, Elements of Crimes, and the Rules of Procedure and Evidence. This shows that despite being a secondary source of applicable law for international law customary law is still part of the fundamental framework of international law (Petersen, 2017). Customary international law continues to be a fundamental consideration for the national and international courts especially when they are faced by universal problems such as human rights violations, boundary disputes and even trade. The custom law co-exists with treaties in the codification of the international law and play an instrumental role in governing areas that are not governed by the treaty law or rules. This paper will seek to assess the application of the customary law in international law and its core roles in different aspects of application and the codification of the internationally recognized legal framework.

Application of Customary Law in International Law

International law cannot ignore the existence of customary law in that they are both continuously and co-actingly influencing each other. The state practice and the opinio juris (also referred to as the two-element approach) are important attributes that can be considered in assessing how the customary law influence the international law practice and conceptualization (Petersen, 2017). Recently, the International Law Commission has adopted the two-element approach which is concerned with the general practice and accepted as law elements which contributes towards customary international law. According to the Article 38 of the International Court of Justice, judicial decisions and teachings which are mostly qualified by the publicists of the different countries can be an instrumental source of international law at a subsidiary level.

The existence of international law has been associated to various customary practices, and formation of international treaties between states. For decades now, nations have been able to develop the sovereignty principle to express authority over states by developing meaning in legal practices to ensure that their consensus in authority. In practice of international law, it controls the relation between states. For example, as nationals relate to each other, the existence of the rule of law and policies emanated from the nations’ free will to accept and establish principles. This is so as to regulate the associations between the co-existing nations along with the object to ensure achieve similar objectives.

Among such achievements by independent nations, international law has aided in enshrining standards, conventions, and treaties through the United Nations. As shown in Article 2 of the United Nation Charter, it confirms on the functions and importance of international law as a guiding principle for the equality of member states, non-intervention principle, and guide to prohibition of application of force (Fox et al., 2017). Over the recent years, we have seen international law in application in the prohibition of excessive use of force to foster peace in events where the United Nations Security Council has authorized such sanctions.

Additionally, the core guidelines and principles of international law have promoted the advancement of human rights through the “Universal Declaration of Human Rights” outlined in the U.N. Charter (Waltz, 2001). Although the principles of international law tend to pool tension, other treaties have been formed to strengthen its role in ensuring that there is sovereignty since incidences of World Wars (Davidson, 2019). In its practice, the international law has supported the protection of human rights by ensuring that other regulations are followed to ensure protection of human rights. Overall, international law has aided in the achievement of great developments by becoming central to the promotion of political, social, and economic growth critical in advancing international security and peace.

The Prosecutor v. Bosco Ntaganda Application in Understanding how Customary Law Enriches the International Law

The application of customary law to the international criminal law is a subject that has been questioned. The rules involved are vague and imprecise. The legality principle demands the punishment and prosecution to have clear international law provisions during the criminal actions (Fox et al., 2017). The distinction between customs and treaties in legal certainty is a crucial subject. Treaties are rejected as International Criminal Law (ICL) sources where the customs are deemed vague, a concept that is not accepted. The legality principle limits the interpretation of the customary law. Customary law should instead be considered international law sources (Pocar, 2020). They also help to interpret the written rules as a model of ICL. The Criminal Tribunal for the former Yugoslavia (ICTY) fails to specify the law applicable. The secretary general of the UN stated that the tribunal use international humanitarian rules that are in line with the customary law. The action was meant to limit ICTY from acting upon customary law crimes hence advocating for legality principle Pocar, F. (2020). The ICTY appealing section implemented customary laws criminalizing the damages in war crimes. The Joint Criminal Enterprises (JCE) is also required to use customary laws (Konderla, 2018). The international tribunals also use customary laws in their jurisprudence. During the IMT, custom laws were applied to address the jurisdiction challenge involved.

According to Statute’s Article 21(1), customary law should be used as subordinate sources of law by the ICC. The customary laws are used in addition to the rules of evidence and procedure, crime elements and Rome Statute (Konderla, 2018). The customary laws are crucial in determining various cases in the ICC framework. In the presence of legal gap in the written policies of ICC, customary laws may be used in the interpretation. During the interpretation Ntaganda criminal case against humanity, the chamber of pre-trial required ICTY cases to make interpretation in accordance to the customary laws (Tan, 2018). The Ntaganda case demands caution. When providing clarity for the war victims of abusive slavery and rape, the Ntaganda trial chamber demanded more support of the Rome Statute in providing the status need (Svaček, 2017). Customary law was considered where the chamber demanded to know whether it required status limitation for the victims. The prosecutor disputed the notion and sought for additional element on international law framework. The prosecutor further argued that according to Statute’s Article 8, customary laws should not be applied without a gap. The argument was rejected by the ICC appeals chamber that argued in consistent with the Article 8 global humanitarian law. The rule allows ICC to use the international customary law in spite of the Lacuna existence. In dealing with war crimes like the Ntaganda case, the ICC can use restrictive customary law elements without legal gap.

ILC considered the addition of customary law crimes when implementing the Rome Statute. The action would help to determine cases that are beyond the legal chamber and require further interpretation in customary perspective. The Rome statute executes jurisdiction in accordance to the customary law as provided by article 24(1), 13(b), and 11(2) of the Statute. The ICC applied this notion when dealing with the Ntaganda case that involved crimes against humanity. The Statute’s article 12(3) allows the state parties to accept the jurisdiction of ICC in consideration of customary law. According to the article 13(b), the ICC is empowered to use Rome Statute over non-Rome States. The Jurisdiction will demand the application of the customary law for example in the case of Ntaganda (Tan, 2018). The ICC-01/04-02/06 was the ICC case of Bosco who committed crimes against humanity in his country.

Application of International Law and Customary Law in Upholding Human Rights

Customary law is a primary source of international law and the latter cannot be conceived without customary law. The international law most fundamental concepts are sourced from the customary law and one cannot argue on the validity of the international law without evoking the customary law. This is because the principles such as pacta sunt servanda and bona fides which are crucial in the standing of international law are primarily customary. Thus, the international law is influenced by the customary law due to the opinio juris requirement which require the states behavior and decisions to also have a psychological paradigm which helps to make states subjects of the international law. As such, through opinio juris states and their people can be convinced that they are subject to the existing international law (Klein, 1988). The international customary law has played an instrumental role towards securing human rights through the international treaties which are ratified by individual states law making organs making the human rights provisions binding (Bassiouni, 1982). As such, international treaties have been a crucial source of international law which is commonly used by the International Criminal Court to prosecute cases of human rights abuse at an international scope.

The international custom as a source of international law and its ability to secure human rights paradigms internationally can be found through the diplomatic correspondence, press releases, executive decisions, governments comments on drafts that are created by the international law commission and the official manuals on the legal questions. More importantly, the activities of the international organs such as the United Nations General Assembly has led to the adoption of international custom which eventually contribute to the creation and expansion of the international law on human rights, trade and even environmental regulations. Populism is increasingly facilitating the use of customary law in human rights based cases that are conducted according to the international laws principles (Hostovsky Brandes, 2019). The ability of the international law in securing human rights and other key aspects of importance such as environment and trade is its ability to bind states even those that are yet to consent to the rules. Whereas international treaties are only bound to those that have consented to them the customary law does not require any consent which makes it an effective tool for advancing human rights principles.

Opposition of Customary Law Application in International Law

At the same time, there has been significant contest against the use of customary law in international law in international criminal law. This is because the rules which are derived from the customary law are imprecise and at times vague in nature. The application of customary law in international law can therefore be contested against due to the principle of legality which require high specificity and legal certainty. At the same time, the customary law application as a source of international law can be supported by the argument that the principle of legality only requires the prosecution and punishment to be based on clear provisions of international law when a crime was committed (Petersen, 2017). One support of the application of the customary law in the international law is the International Criminal Tribunal for the former Yugoslavia which requires rules of international humanitarian law to be beyond doubt and to be part of the customary law. Overall, the primary role of the customary law in international law is to fill the legal gaps which complicate the proceedings of the international law. As such, the customary law helps to interpret the International Criminal Court written rules (Petersen, 2017). At different times, the ICC has invoked the Article 21 (1) (b) and to some extent confirmed customary law especially in proceeds of cases which involves crimes against humanity.

Conclusion

It is evident that the customary law is widely accepted as a secondary source of international law and helps in the interpretation of the international law. At large, the two-element approach such as in the case of The Prosecutor v. Bosco Ntaganda shows the continued support and application of customary law in helping define and resolve the legal gaps in the interpretation of the international law during key criminal proceedings. The evidence of opinio juris is highly accepted in expounding how customary law can be used to understand some cases at the international level. The customary law despite the existence of ambiguity will continue to shape how international law is applied by the ICC in ruling fundamental cases especially those that challenge the existing customs and values of the different communities.

References

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