Introduction:
Any discussion of the question of applicable law should be framed by the following guiding principles. The first is the principle of legality, encompassing the requirement of certainty as to the law. In accordance with this principle, the statute must set out the applicable law with the greatest possible degree of clarity. Secondly are the principles of equality and universality. As an international court charged with upholding international law, the Court must operate at all times consistent with that body of law. As such, all accused persons must be accorded equal treatment without discrimination on any basis.208
Article 20(1)
· Recommendation 1: The ICC should apply the statute and rules of the Court and applicable international law, including general principles of law recognized by national legal systems. National laws may be taken in account as a relevant fact, not applied as binding law. As such, Option 1 in Article 14(1)(c)209 should be retained and option 2 deleted210.
Comment: The statute must be the primary source of law for the Court. In the interpretation of the statute, the Court should have regard to the body of international law of which the statute is part. The ICC will be an international court with jurisdiction over crimes that offend the conscience of humankind, and over which there is universal jurisdiction. As such, and as a Court with aprimary objective of enforcing international law, it is appropriate that the relevant standards to be applied by the Court are international.
"General principles of law recognized by civilized nations" is one of the sources of international law, as established in Article 38 of the statute of the International Court of Justice.211 As such, the reference in Article 20(1)(b) to "the principles and rules of general international law", already comprises the principles and rules of law generally recognized in national legal systems.212 However, in the interest of clarity, specific reference could be made to these general principles of law as a source of applicable law.213
In the area of international criminal law, customary international and treaty law may not be sufficiently developed at the present time to provide legal guidance on all possible matters concerning the application of the statute.214 General principles, derived from practice in a range of national legal systems, should be drawn upon to fill any potential lacuna.215 The International Court of Justice hasrelied upon this source of law in the exercise of its judicial function,216 as has the International Tribunal for the Former Yugoslavia.217
Specific national laws, on the other hand, should never be a substitute for international law or general principles and directly applied by the ICC. It is widely accepted that the fact that a State does not criminalize genocide within its own legal system is not determinant of the Court's jurisdiction over nationals of that state who commit genocide. Similarly, other specific provisions of the national law of the state of nationality of the accused, or the state of the territory on which the crime was committed, should not be directly applied. National legal standards will inevitably vary; national laws may themselves be discriminatory or otherwise inconsistent with international law. Even where national laws are not incompatible with international law, we believe that an individual should not be treated more, or less, favorably in the prosecution of these crimes on the basis of his or her nationality.
Article 20(2)
· Recommendation: The Court should be able to apply the principles and rules of law as interpreted in its previous decisions, in line with the current wording of Article 20(2).
Comment: The provision embodied in Article 20(2) would facilitate the cohesive development of the Court's jurisprudence, and contribute to the development of the emerging body of international criminal law. The current text of Article 20 does not propose establishing a system of binding legal precedent, or seek to oblige the Court to adhere to the terms of its earlier decisions. Rather, it is permissive, empowering the Court to do so. The Court's express ability to apply the principles that emerge from its previous judgments would contribute to greater consistency between cases and predictability, which are aspects of the principle of legality.
CONSISTENCY WITH INTERNATIONAL HUMAN RIGHTS LAW
Article 20(3)
· Recommendation 2: Retain Article 20(3) as it now stands, making explicit that, "[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, which include the prohibition on any adverse distinction...."
Comment: It will be essential to the ICC's credibility and legitimacy that the Court observe the highest standards of international human rights law. This affects many aspects of the statute, including the need for unequivocal respect for the rights of the accused and the duty of the Court to exercise its functions without adverse discrimination on the basis of gender, race or other grounds, as commonly defined by international human rights law.218 The recent addition of this provision at the March/April Preparatory committee meeting enhances the current draft statute and should be retained.
209 In addition to applying treaties and the principles and rules of general international law, Option 1 allows the Court to apply "general principles of law derived by the Court from national laws of legal systems of the world." See comment below.
210 Option 2 allows the Court to apply particular national laws
211 Article 38(1)(c) of the Statute of the International Court of Justice, I.C.J. Acts and Documents, No 5 ("ICJ Statute").
212 Referring to the general principles contained in Article 38(1)(c) of the ICJ statute, Lord McNair, then judge on the International Court of Justice, stated "[i]t is not the concrete manifestation of the principle in different national systems--which are anyhow likely to vary--but the general concept of law underlying them that the international judge is entitled to apply under paragraph (c)." South West Africa case, I.C.J.Rep(1950), p.148
213 Such principles should apply in so far as consistent with the Statute and other sources of international law, as set out in the recommendation below.
214 A paper submitted by the Canadian delegation to the 1996 Preparatory Committee, which Human Rights Watch supports, recognizes that on certain issues there is no developed body of international criminal law, such as on the question of applicable defenses, but that such a body is developing. This body of law will clearly continue to develop and guide the Court in the future.
215 In the opinion of the Advisory Committee of Jurists on Article 38(1)(c) of the ICJ Statute, filling lacunae in treaties and customary international law was one of the objectives of including (c) within the sources of international law. Permanent Court of International Justice, Advisory Committee of Jurists, Proces verbaux of the Proceedings of the Committee (June 16-July 24 1920, L.N. Publication, 1920, p 335
216 See the North Sea Continental Shelf case (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands - ICJ, 1969, 4) and the Diversion of Water from the Meuse case (Netherlands v. Belgium, PCIG, Ser. A/B, No. 70, 76-78. 4 Hudson, World Ct.Rep 172, 231-33).
217 See for example, the recent case of Prosecutor v. Drazen Erdomovic, ICTY, IT-96-22-A, (1996), p 41.
218 See for example, Article 26 of the ICCPR.
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