Week 1(ii) - Sources of ICL

Question 1

What and where are the sources of general PIL? (3)

Answer 1

1) Article 38 ICJ Statute

2) Primary Sources (no hierarchy)
- Treaties
- CIL
- General Principles

3) Subsidiary sources
- caselaw
- writings of publicists

Question 2

What are foundational principles in criminal law and what is their impact on ICL? (3)

Answer 2

1) Nullum crimen sine lege (Art 22 Rome Statute)
2) nulla poena sine lege (Art 23 Rome Statute)

3) Not as strictly applied in ICL –> no principle of nullum crimen sine lege scripta
- thus general principles and CIL still play role in ICL

Question 3

What are the sources of law applied by ICC? (6)

Answer 3

1) Art 21 Rome Statute

2) In the first place
- Statute
- EoC
- RPE

3) in the second place, where appropriate
- applicable treaties
- principles and rules of IL (CIL)

4) Failing that:
- General principles of law derived from national legal systems

5) May apply principles and rules as interpreted in prev. decisions (Art 21(2))
6) interpretation must be HR-consistent (Art 21(3))

Question 4

What is notable about the EoC? (4)

Answer 4

1) Elements of Crimes
2) Art 9 Rome Statute: EoC assist interpretation of Arts 6-8
3) Inlcuded due to US proposal
4) constrains judicial creativity (cf. ICTY/ICTR did not have EoC)

Question 5

What are ‘applicable treaties’ in Art 21 Rome Statute? (5)

Answer 5

1) Geneva Conventions specifically mentioned in Art 8(2)(a)
2) ICCPR: rights of accused
3) 1907 Hague Conventions: war crimes (means and methods)
4) Genocide/Torture Convention: definitions
5) Statutes of ICTY/ICTR/IMTIMTFE

Question 6

What is ICC’s approach to past decisions? (3)

Answer 6

1) Art 21(2) Rome Statute: ICC decisions fall somewhere between common and civil law approaches
2) Decisions of ICTY/ICTR/domestic courts: evidence of CIL
3) domestic courts: state practice

Question 7

What is Degan’s main arguments? (2)

Answer 7

1) ICTY/ICTR drastically overstretched through their concept of ‘judge-made law’ - not a source of law under ICL (there must be State practice and opinio juris)
2) ICC has done better in respecting nullum crimen through its exhaustive lists and definitions

Question 8

Who is Cassese?

Answer 8

1) President of ICTY and STL

Question 9

What was Cassese’s approach to CIL? (5)

Answer 9

1) Cryer
2) Sought to humanize IL, but largely stuck to legal positivism
3) emphasize opinio juris over State practice (e.g. Tadic) - but only where lead to humanization (Cf. Erdemovic)
4) in Kupreskic rely on Marten’s Clause to argue Opinio juris should be granted greater role
5) Argue for focus on opinio necessitatis (rules required by social necessity) rather than opinio juris (belief in pre-existing rules) (‘Applicable Law Decision’ - STL)

Question 10

What is the main arguments of Tan? (3)

Answer 10

1) it is still commonly accepted that CIL is ascertained by 2-element approach (State practice, opino juris)
2) However a flexilble approach is acceotable in certain cases (more weight to opinio juris for rules with moral content)
3) in ascertaining CIL in ICL one must be careful not to infringe principle of legality

Question 11

What is an alternative approach to the 2-element approach to CIL? (4)

Answer 11

1) Meron
2) ‘Core right’ approach
3) Applies for IHL and IHRL
4) CIL should be inferred from the ‘core values’ of the international community

Question 12

What are pros/cons of the ‘core right’ approach to CIL? (2 + 2)

Answer 12

Pros:
1) State practice in IHL and ICL = hard to obtain

2) records of State practice is sparse and inconsistent

Cons:
1) leaves too much power with powerful States to dictate law

2) infringes strict principle of legality prohibiting analogy

–> two-element approach to be preferred