An Introduction To The International Criminal Court - Institute for ...

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General principles of criminal law
The statutes of the Nuremberg and Tokyo tribunals, as well as those of
the ad hoc tribunals for the former Yugoslavia and Rwanda, are very thin
when it comes to what criminal lawyers call ‘general principles’. Once the
crimes were defined, the drafters of these earlier models left issues such
as the appreciation of the evidence or the assessment of responsibility for
accomplices and other ‘secondary’ offenders to the discretion of the judges.
After all, those appointed to preside over these tribunals were eminent jurists
in their own countries and could draw on a rich, multicultural resource of
domestic criminal law practice. The Rome Statute is far less generous to
the judges. It seeks to delimit in great detail any possible exercise of judicial
discretion. Part 3 of the Statute, consisting of Articles 22 to 33, is entitled
‘General principles of criminal law’. 1 It directs the Court on such issues as
criminal participation, the mental element of crimes and the availability of
various defences. But elsewhere in the Statute can be found other provisions
that are also germane to the issue of general principles. They present a
fascinating experiment in comparative criminal law, drawing upon elements
from the common law, the Romano-Germanic system, Sharia law and other
regimes of penal justice.
Sources of law
Article 21 of the Rome Statute, entitled ‘Applicable law’, sets out the legal
sources upon which the International Criminal Court may draw. The Statute
itself cannot provide answers to every question likely to arise before the
Court and judges will have to seek guidance elsewhere, just as they do under
1 On the general principles, see Per Saland, ‘International Criminal Law Principles’, in Roy Lee, ed.,
The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results,
The Hague: Kluwer Law International, 1999, pp. 189–216; William A. Schabas, ‘General Principles
of Criminal Law in the International Criminal Court Statute (Part III)’, (1998) 6 European Journal
of Crime, Criminal Law and Criminal Justice 84; Kai Ambos, ‘General Principles of Law in the
Rome Statute’, (1999) 10 Criminal Law Forum 1.
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