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Transformation of Customary Law Through ICC Practice

  • Fausto Pocar (a1)
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Article 21 of the Rome Statute, in defining the applicable sources of law for the International Criminal Court (ICC), breaks with the practice of the ad hoc tribunals by treating customary international law as only a secondary authority. Nonetheless, customary international law still has an acknowledged role in ICC jurisprudence in filling lacunae in the Rome Statute and aiding in its interpretation. One can also predict other instances in which the application of customary international law will be required. It remains to be seen, however, whether the ICC's use of customary law will lead to that law's further fragmentation or whether that use will instead modify customary law to reflect the ICC Statute.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Only ad hoc international courts and tribunals are referred to here. Hybrid and mixed courts with international participation will not be considered, as they are normally also entitled to apply, to a certain extent, the domestic law of the states concerned with their jurisdiction.

2 See, e.g., Theodor Meron, Revival of Customary Humanitarian Law, 99 AJIL 817 (2005).

3 Secretary-General, Report Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. No. S/25704, para. 34 (May 3, 1993).

4 This new approach is due to the consideration that the ICC's jurisdiction extends only to crimes committed after the entry into force of the Statute, to ensure that the application of the Statute does not raise, unlike with previous ad hoc tribunals, issues with respect to the principle of legality.

5 Prosecutor v. Katanga, ICC-01/04-01/07, Judgment Pursuant to Article 74 of the Statute, para. 39 (Mar. 7, 2014).

6 See Fausto Pocar, Genocide (répression), in Dictionnaire encyclopédique de la justice pénale internationale 482 (Olivier Beauvallet ed., 2017).

7 Vienna Convention on the Law of Treaties art. 31(3)(c), May 23, 1969, 1155 UNTS 331 [hereinafter VCLT].

8 Prosecutor v. Katanga, supra note 5, at para. 47.

9 Prosecutor v. Lubanga, ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, para. 54 (Mar. 14, 2012).

10 Prosecutor v. Bemba Gombo, ICC-01/05-01/08, Judgment Pursuant to Article 74 of the Statute, para. 79 (Mar. 21, 2016).

11 Id. at para. 83.

12 Id. at para. 85.

13 Prosecutor v. Katanga, supra note 5, at para. 39.

14 VCLT, supra note 7, at art. 34.

15 Rome Statute of the International Criminal Court art. 7(2)(g), July 17, 1998, 2817 UNTS 3 [hereinafter Rome Statute].

16 See Prosecutor v. Kupreškić, Case No. IT-96-16-T, Judgement, para. 621 (Int'l Crim. Trib. for the Former Yugoslavia, Jan. 14, 2000).

17 Rome Statute, supra note 15, art. 7(1)(h).

18 Charter of the International Military Tribunal art. 6(c), Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (Aug. 8, 1945).

19 On the issue of the ICC's role with respect to fragmentation of international law, in the sense that fragmentation should be avoided by interpreting the Statute in conformity with customary law, cf. Fausto Pocar, International Criminal Justice and the Unifying Role of Customary Law, 21 Uniform L. Rev. 171 (2016).

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  • EISSN: 2398-7723
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