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

general principles of criminal law 91
domestic law when criminal codes leave questions ambiguous or simply
unanswered. 2
International law already has a general response to this problem in Article
38 of the Statute of the International Court of Justice, the international judicial
organ created as part of the United Nations in 1945 with jurisdiction over
disputes between sovereign States. The ICJ’s Statute defines three primary
sources of international law: international treaties; international custom;
and general principles of law recognised by civilised nations. It is accepted
that the three sources are of equal value and that there is no hierarchy
among them, although case law has tended to give the third source, general
principles of law, a rather marginal significance. According to the Statute
of the ICJ, subsidiary means for determining the rules of law are judicial
decisions and academic writings. Besides these enumerated sources, international
legal rules can also be created by unilateral acts, such as a declaration
or a reservation.
The Rome Statute creates a special regime as far as sources of law are
concerned. The Statute proposes a three-tiered hierarchy. At the top is the
Statute itself, accompanied by the Elements of Crimes and the Rules of
Procedure and Evidence. The Rome Statute was adopted at the 1998 Rome
Diplomatic Conference, whereas the Elements and the Rules were drafted
by the subsequent Preparatory Commission sessions, in 1999 and 2000,
and then confirmed by the Assembly of States Parties at its first session in
September 2002. 3 Although Article 21 suggests that the Statute, the Elements
and the Rules are all of equal importance, provisions elsewhere in the Statute
make it clear that, in case of conflict, the Elements (Article 9) and the Rules
(Article 51) are overridden by the Statute itself. 4
The second tier in the hierarchy of sources consists of ‘applicable treaties
and the principles and rules of international law, including the established
principles of the international law of armed conflict’. This category rather
generally corresponds to the sources of international law set out in Article
38 of the Statute of the ICJ, although the wording is quite original. There is
2 Ida Caracciolo, ‘Applicable Law’, in Flavia Lattanzi and William A. Schabas, eds., Essays on the
Rome Statute of the ICC, Rome: Editrice il Sirente, 2000, pp. 211–32.
3 ‘Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalized
Draft Text of the Elements of Crimes’, UN Doc. PCNICC/2000/INF/3/Add.2; ‘Report of the
Preparatory Commission for the International Criminal Court, Addendum, Finalized Draft Text
of the Rules of Procedure and Evidence’, UN Doc. PCNICC/2000/INF/3/Add.3.
4 Herman von Hebel and Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’, in Lee,
The International Criminal Court, pp. 79–126 at p. 88.