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

24 introduction to the international criminal court
The influence of the Rome Statute will extend deep into domestic criminal
law, enriching the jurisprudence of national courts and challenging prosecutors
and judges to display greater zeal in the repression of serious violations
of human rights. National courts have shown, in recent years, a growing
enthusiasm for the use of international law materials in the application of
their own laws. A phenomenon of judicial globalisation is afoot. The Statute
itself, and eventually the case law of the International Criminal Court, will
no doubt contribute in this area. The International Criminal Tribunal for
the Former Yugoslavia, in Prosecutor v. Furundzija, described the Statute’s
legal significance as follows:
[A]t present it is still a non-binding international treaty (it has not yet entered
into force). It was adopted by an overwhelming majority of the States attending
the Rome Diplomatic Conference and was substantially endorsed by the
General Assembly’s Sixth Committee on 26 November 1998. In many areas
the Statute may be regarded as indicative of the legal views, i.e. opinio juris
of a great number of States. Notwithstanding article 10 of the Statute, the
purpose of which is to ensure that existing or developing law is not ‘limited’
or ‘prejudiced’ by the Statute’s provisions, resort may be had com grano salis
to these provisions to help elucidate customary international law. Depending
on the matter at issue, the Rome Statute may be taken to restate, reflect or
clarify customary rules or crystallise them, whereas in some areas it creates
new law or modifies existing law. At any event, the Rome Statute by and large
may be taken as constituting an authoritative expression of the legal views of
a great number of States. 74
In the same vein, another Trial Chamber described the draft Elements of
Crimes to be ‘helpful in assessing the state of customary international law’.
It added that those States attending the Rome Conference, regardless of
whether they had signed the Statute, were eligible to participate in the sessions
of the Preparatory Commission that adopted the Elements of Crimes
in July 2000. ‘From this perspective’, said the Trial Chamber, ‘the document
is a useful key to the opinio juris of the States.’ 75
74 Prosecutor v. Furundzija (Case No. IT-95-17/IT), Judgment, 10 December 1998, para. 227.
For an example of the draft statute of the court being cited as a guide to evolving customary
international law, see the reasons of Justice Michel Bastarache of the Supreme Court of
Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR
982, at paras. 66–8.
75 Prosecutor v. Krstic (Case No. IT-98-33-T), Judgment, 2 August 2001, para. 541.