Abstract
Article 21 of the Rome Statute, in defining the applicable sources of law for the International Criminal Court (ICC), breaks with the practice of the ad hoc tribunals by treating customary international law as only a secondary authority. Nonetheless, customary international law still has an acknowledged role in ICC jurisprudence in filling lacunae in the Rome Statute and aiding in its interpretation. One can also predict other instances in which the application of customary international law will be required. It remains to be seen, however, whether the ICC's use of customary law will lead to that law's further fragmentation or whether that use will instead modify customary law to reflect the ICC Statute.
Highlights
Article 21 of the Rome Statute, in defining the applicable sources of law for the International Criminal Court (ICC), breaks with the practice of the ad hoc tribunals by treating customary international law as only a secondary authority
Under Paragraph 3, treaty and customary international human rights law would seem to enjoy absolute priority over general provisions derived from national laws, a hierarchy that may have far reaching consequences given the close connection between human rights and international criminal law
Limited Application of Customary Law. In light of these considerations, what is the role of customary international law in the ICC jurisdictional system? Is the break with the past in Article 21 intended to displace customary law entirely, and to foster a jurisprudence that reflects a closed treaty legal system in opposition to customary law? Or is such a break aimed at modifying existing customary law, transforming it into a new customary law whose rules would be identical to the Rome Statute?
Summary
Article 21 of the Rome Statute, in defining the applicable sources of law for the International Criminal Court (ICC), breaks with the practice of the ad hoc tribunals by treating customary international law as only a secondary authority. Under Article 21(3), “the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on [various protected] grounds.” These provisions appear to introduce a noteworthy change in the practice followed so far by international courts and tribunals established before the Rome Statute.[1] in the absence of any specific provision in the statutes of previous tribunals, those tribunals have relied on customary international law to reach their decisions.[2] This approach was recommended by the UN Secretary-General in his report accompanying the draft statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), and endorsed, or at least taken note of, by the Security Council.[3]. Under Paragraph 3, treaty and customary international human rights law would seem to enjoy absolute priority over general provisions derived from national laws, a hierarchy that may have far reaching consequences given the close connection between human rights and international criminal law
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