General Principles of Law in the Early Jurisprudence of the ICC

Badar, Mohamed and Higgins, Noelle (2014) General Principles of Law in the Early Jurisprudence of the ICC. In: The International Criminal Court in Search of Its Purpose and Identity. Taylor & Francis, London, pp. 263-282. ISBN 978-0415747776

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Abstract

In this chapter, we will deal with the role of ‘general principles of law recognized by the major legal systems of the world’ as a source of international criminal law. ‘General principles of law’ have been identified and used as a source of law by international tribunals since the adoption of the Statute of the PCIJ in 1920 and have been used to fill gaps in international law with regard to issues on which no treaty or customary rules exist. In the field of international criminal law, general principles have also been identified as a source of law, and used for the same purpose, in the jurisprudence of the ICTY and the ICTR and in the Statute of the ICC. Despite numerous international tribunals having recourse to general principles when identifying applicable law, a ‘certain mysticism’ attaches to them and many questions remain as to how general principles can, and should be used, to clarify and develop international law. In particular, uncertainty persists with regard to how general principles are to be identified and which techniques should be implemented to extract general principles from principles of domestic law. While general sources of law have the potential to play a very important role in the development of international criminal law by avoiding situations of non liquet, without clarification as to how such principles are to be identified, the full potential of this source of law cannot be exploited, which can impede the development and evolution of international criminal law. This chapter focuses on the use of general principles as a source of international criminal law and focuses on how international tribunals have dealt with the issue of identifying general principles through a review of national laws. Section 1 of the chapter provides a brief analysis of general principles as a source of public international law and discusses how the ad hoc tribunals have used general principles as a source in their jurisprudence, with a particular focus on the tribunals’ approach in identifying general principles. Section 2 then focuses on Article 21 of the ICC Statute which outlines the applicable law of the court and analyses how general principles fit into the hierarchy of sources set out in this provision. This chapter also provides an analysis of the methodology the court uses in identifying general principles in the early jurisprudence of the ICC. The chapter concludes with some thoughts on how general principles can be better exploited to ensure the continuous and dynamic development of international criminal law at the ICC.

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