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

94 introduction to the international criminal court
in their context and in the light of its object and purpose. Article 31 of the
Vienna Convention indicates that the context should include the preamble
of the Rome Statute, as well as the Final Act adopted on 17 July 1998.
In addition, subsequent agreements, such as the Rules of Procedure and
Evidence and the Elements of Crimes, are germane to interpretation. As
supplementary means of interpretation, the Vienna Convention points to
the drafting history or travaux préparatoires of the Statute, but only when
the meaning is ambiguous or obscure, or the general rule of interpretation
leads to an absurd or unreasonable result. 9
But there will be those who argue that, as a source of criminal law, the
Rome Statute should be subject to the rule of ‘strict construction’, or that,
in the event of ambiguity or uncertainty, the result more favourable to the
accused should be endorsed. Such a rule is drawn from national criminal law
practice. It is confirmed, at least with respect to the definitions of crimes, in
Article 22(2) of the Rome Statute: ‘The definition of a crime shall be strictly
construed and shall not be extended by analogy. In case of ambiguity, the
definition shall be interpreted in favour of the person being investigated,
prosecuted or convicted.’ Article 22(2) is in many respects a reaction to
the large and liberal approach to construction taken by the judges of the
International Criminal Tribunal for the Former Yugoslavia. The approach
to the definitions of crimes taken in such cases as the Tadic jurisdiction
decision, which quite dramatically opened up the category of war crimes to
include offences committed in non-international armed conflict, was rather
clearly not within the spirit of strict construction. 10 Frequently, the judges
of the Yugoslav Tribunal have invoked the principles of interpretation in the
Vienna Convention on the Law of Treaties, which are essentially contextual
and purposive in scope. 11 The Rome Conference was obviously unsettled
by such judicial licence, and Article 22(2) is the result.
9 Vienna Convention on the Law of Treaties, (1979) 1155 UNTS 331.
10 Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995.
11 Prosecutor v. Erdemovic (Case No. IT-96-22-A), Joint Separate Opinion of Judge McDonald
and Judge Vohrah, 7 October 1997, para. 3; Prosecutor v. Bagosora and 28 Others (Case No.
ICTR-98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of
a Confirming Judge Dismissing an Indictment Against Théoneste Bagosora and 28 Others, 8
June 1998, para. 28; Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November
1998, para. 1161. In contrast, the references to strict construction have been perfunctory at best:
Prosecutor v. Tadic (Case No. IT-94-1-A), Decision on Appellant’s Motion for the Extension of
the Time-Limit and Admission of Additional Evidence, 15 October 1998, para. 73; Prosecutor v.
Erdemovic (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October
1997, para. 49.