Source Of International Criminal Law Research Articles

The practice of the un international court of justice as a subsidiary source of international criminal law in cases of damage to the natural environment

The practice of the un international court of justice as a subsidiary source of international criminal law in cases of damage to the natural environment

The Problem of Attributing Regulatory Material to the Sources of International Criminal Law

The Problem of Attributing Regulatory Material to the Sources of International Criminal Law

Systematic hierarchical nature of sources of international criminal law: methodological aspects

The article considers the sources of international criminal law and notes that the system of sources of this branch is based on the principles of building a system of sources of international law as a whole. Based on the provisions of Article 38 of the Charter of the International Court of Justice, in which the main sources of international law (international conventions, international custom, general principles of law) are enshrined, current trends in the theory of sources of law from a broad approach are taken into account. Emphasis is placed on such features of the sources of law as structure, hierarchy, consistency, interconnection. The imperative nature of the norms of international criminal law, which is inherent in universal sources (principles of law, treaties), is taken into account. Auxiliary sources of law (decisions of international organizations, court decisions, national legislation), which are of a recommendatory nature, are also considered.The author notes that the systematic hierarchical nature inherent in the sources of international criminal law is in the process of formation and results from the state of development of international law. The system of sources consists of general principles of law, principles of international law, principles of international criminal law, treaties (conventions), which are imperative, and ancillary sources that contribute to the formation and development of international criminal law (court precedent, decisions of international organizations, court decisions, national legislation) and are of a recommendatory nature. The main source of international criminal law is a treaty (convention), which has such distinctive features as the consistency of the positions of member states, the existence of a normative form, the imperative nature of the provisions contained therein. International treaties of criminal law content are imperative in terms of implementation mechanism, while the decisions of international organizations are mainly of a recommendatory nature. At the same time, the decisions of international organizations create a conceptual basis for international agreements, determine their common direction, goal-setting. These are primarily the decisions of such international organizations as the General Assembly and the UN Security Council. The task of codification of norms of international criminal law content is urgent.

Классификация непреступных уголовно-правовых деяний в международном уголовном праве

The article presents a classification of non-criminal criminal acts in international criminal law depending, first, on their social significance, second, on their compliance with the sources of international criminal law, third, on how they affect criminal law relations as legal facts.

National legislation as a source of transnational criminal law

The article covers the topic of national legislation as a source (form) of transnational criminal law. International criminal law doctrine has examined different aspects of legal sources many times, but development and establishment of transnational criminal law creates a necessity of research with a view to substantiating the concept of transnational criminal law and researching the empiric basis: international legal act and legislatures of different states.
 Author finds that the systems of legal sources are in a state of constant development and reassessment, which does not change the fact that domestic legislation always takes its place in such systems. The author analyzes the positions of domestic and foreign scientists on the recognition of national legislation as a source of international criminal law. The place of national legislation in the system of sources of transnational criminal law its ancillary character are determined.
 The author substantiates the position of recognition of national legislation as a source of transnational criminal law in view of the important conceptual feature of this sub-branch of law, which is manifested in the interaction of transnational (international) and domestic (national) criminal law. Transnational criminal law as part of international criminal law is part of the system of international law, is based on its principles and closely linked to national criminal law.
 The article notes that every national or international legal system contains a specific system of legal sources, determined within its demands which allows to distinguish the peculiarities of each separate system. National legislation holds a special place in any of such system of sources of international criminal law and belongs to the group of auxiliary sources. It is emphasized that national legislation does not directly regulate international relations, but does affect transnational criminal law in various ways, in particular by criminalizing transnational crimes and penalizing them; according to the rules of national law, criminal prosecution of criminals and implementation of norms in accordance with the jurisdiction defined in the national legislation, etc., takes place.

International Criminal Judiciary Decisions: Is It A Source of International Criminal Law?

The Sources of international criminal law are very important because they drive us to international and revelation of criminal texts, and because they are related to the principle of legality. In addition, international criminal judiciary decisions played significant part in development of this law, in spite of legal controversy over consideration of those decisions as source of international criminal law, particularly because Rome Statutes of International Criminal Court didn’t refer to consideration of those decisions as a source that International Criminal Court can reference. Keywords: International Criminal Court, International Criminal Law, International Judiciary Decisions. DOI : 10.7176/JLPG/86-11 Publication date :June 30 th 2019

Incorporación de los estándares jurídicos de los crímenes internacionales en la jurisdicción especial para la paz

El presente artículo expone una reflexión sobre el panorama del Acuerdo logrado en la Habana en lo que respecta a la Jurisdicción Especial de Paz a la luz del Estatuto de Roma de la Corte Penal Internacional (CPI) y otras fuentes de Derecho Penal Internacional. Así como las implicaciones sociales del componente de justicia del Acuerdo y los horizontes en materia de verdad, justicia y reparación para las víctimas. Metodológicamente, se revisan las consideraciones frente a la Jurisdicción Especial de Paz y la Responsabilidad del Mando, el sistema integral de Verdad, Justicia, Reparación y no Repetición- SIVJ RNR, en tanto mecanismo para contribuir con las necesidades de reparación que tienen las víctimas, e igualmente, se revisan mecanismos complementarios contemplados por la SIVJRNR como la Unidad de Búsqueda de personas desaparecidas. Finalmente, se revisan las implicaciones sociales del componente de justicia del Acuerdo. Se concluye que, Colombia necesita una atmósfera cultural y moral acorde que permita transformar el conflicto armado en un conflicto político, como contexto sin el cual la implementación del SIVJRNR dejaría de ser un hecho real en el Estado colombiano

The Identification of Customary Rules in International Criminal Law

This paper aims to examine whether a different methodology has emerged to identify customary rules in the field of international criminal law. It briefly touches upon debates regarding customary international law as a source of international criminal law. In order to seek whether a different theory in academia has been reached, it critically studies the classic two-element (State practice and opinio juris) identification methodology of customary law, its modifications and one-element approaches. It then explores the unique characteristics and difficulties in identifying customary rules of international criminal law. Finally, it recapitulates the jurisprudence of international criminal tribunals to ascertain whether these tribunals have formed a consistent method for custom identification. It concludes that a different method has not been reached in academia or adopted by judges in practice to identify customary rules of international criminal law. The two-element approach still serves as guidance for general identification, but it should not be too rigid in specific criminal cases. International practitioners, particularly judges, should be cautious in the identification of customary rules of international criminal law, so as to prosecute and punish suspects of international crimes without endangering the principle of legality.

Comparative International Law at the ICTY: The General Principles Experiment

For a significant period of time, the comparativist and the international lawyer were considered to inhabit different worlds: the former scrutinized similarities and differences between domestic legal systems while the latter focused on the universal realm of international law that overlays these systems. This comfortably segregated image has been conclusively shattered by numerous studies demonstrating the multiple areas of interaction between international and comparative law. of these, one of the ripest areas for further reflection is the “general principles of law” as a source of international law. Puzzlingly, given the traditional domestic law origins of the general principles of law, comparative law and methodology have rarely featured in the scholarship and jurisprudence on the general principles. Thus, the attempt of the International Criminal Tribunal for the Former Yugoslavia (Icty) to use the general principles as a freestanding source of international criminal law provides a particularly intriguing opportunity to study the interaction between international and comparative law.

The Use of Precedent as Subsidiary Means and Sources of International Criminal Law

This article examines the use of precedent in the judgments of international criminal courts and tribunals. It finds that although such courts and tribunals have resorted to external judicial decisions as subsidiary means for the determination of rules of law, in some cases, their use of external judicial decisions has been equivocal. Moreover, in two notable cases, these courts and tribunals have unequivocally relied on precedent as a direct source of law. In this context, the article offers some reflections on whether courts may serve as sources for the creation of rules of law. It finds that there does not seem to be any legal basis for the use of external judicial decisions as direct sources of rules of international law. There is, moreover, a danger that regarding external judicial decisions as direct sources may encourage a lax, uncritical reliance on such decisions.

The ‘Nuremberg Clause’ and Beyond: Legality Principle and Sources of International Criminal Law in the European Court’s Jurisprudence

Legislative acts or constitutional courts’ decisions allowing the prosecution of alleged perpetrators of international crimes committed in the past continue to attribute to the legality principle a central role within domestic criminal proceedings or complaints before the European Court of Human Rights. This article assesses the evolution of the recent jurisprudence of the Strasbourg Court, which in the 2008 Korbely and Kononov cases for the first time extended the standards of the legality principle over war crimes and crimes against humanity. It examines the rationale for this development, which constitutes an attempt by the Court to restore a proper balance between substantive justice and individual protection, by ascertaining whether domestic convictions were consistent with the qualitative elements of the legality principle, such as accessibility and foreseeability. Through a detailed analysis of the European jurisprudence, the article argues that, although the new approach of the Court entails in abstracto a strengthening of individual safeguards from the arbitrariness of state power, the meaningful protection of the legality principle may be in concreto significantly narrow. The reasons for such a result are two-pronged: first, the Court seems to provide an interpretation of past law which radically diverged from the interpretation of the law in place in the legal system at the material time of the events; second, the international sources accepted by the Court as a valid basis for the applicants’ convictions – pursuant to the standards of the legality principle – were intended to create obligations only upon states, rather than individuals.

Reinterpreting Competing Interpretations of the Scope and Potential of the Martens Clause

This article, whose materials are extracted from a wider project on the doctrinal and humanitarian significance of the 1899/1907 Martens Clause, reviews the strengths and limitations of competing interpretations and judicial applications of this Clause. It identifies four distinct, if interrelated, approaches to defining its meaning and scope assessing each in turn. We take issue with recent scholarship that restricts its applicability in various ways that deny its status as a separate and distinct legal principle of direct and independent applicability to organized atro- cities against civilians. We also dispute the view that this Clause is best inter- preted as an aide to judicial interpretation, rather than as an independent source of international criminal law, by showing that this interpretation is inconsistent with a number of important cases whose authority appears to be well established and unobjectionable. Furthermore, the moral imperatives that clearly shape the language of the Clause and have been realized in many of its accumulated judicial applications, positively require this measure to be interpreted and applied as a freestanding legal norm—albeit one that has to operate as supplement for, rather than alternative to, other more specific legal rules and principles.

Defining International Criminal Law

This work is an introductory chapter for a forthcoming book on Understanding International Criminal Law to be published by Aspen Publishers as part of Aspen's Essentials series. This chapter presents a succinct definition of international criminal law (ICL), situating it within the fields of public international law, transnational law, international human rights, and international humanitarian law. Additional chapters in the text will address the history of ICL, the sources of ICL, the major international crimes and defenses, and ICL reasoning and rhetoric. Publication is expected in 2007 for adoption in 2008.

The Internationalization of Crimes

This work is a chapter for a forthcoming book on The Essentials of International Criminal Law to be published by Aspen Publishers as part of its Essentials series. This chapter discusses one of the major conundrums of international criminal law (ICL): how to distinguish international crimes (war crimes, crimes against humanity, terrorism, and genocide) from their domestic analogs (murder, assault, and mayhem). The chapter discusses the various approaches to internationalization (focusing on issues of identity, transnationalism, human dignity, global stability, etc.) and concludes that international crimes lack a coherent unifying justification. Additional chapters in the text address the history of ICL, the sources of ICL, the major international crimes and defenses, and ICL reasoning and rhetoric. Publication is expected in October 2008.

A Concise History of International Criminal Law: Chapter 1 of International Criminal Law: Intersections & Contradictions

This work is an introductory chapter for a forthcoming book on Understanding International Criminal Law to be published by Aspen Publishers as part of Aspen's Essentials series. This chapter presents a succinct history of international criminal law (ICL), drawing upon major developments in the law of armed conflict, international human rights law, and the criminal prohibitions against piracy and the slave trade. The chapter interweaves the history of substantive norms with that of evolving principles of domestic and international jurisdiction, as these narratives are virtually inseparable in ICL. Additional chapters in the text will address the sources of ICL, the major international crimes and defenses, and ICL reasoning and rhetoric. Publication is expected in 2007 for adoption in 2008.

On the Sources of International Criminal Law

In their efforts to establish a quite original system of procedural and material rules of international criminal law, by means of the so-called ''judge-made law'', the two ad hoc Tribunals for the Former Yugoslavia and Rwanda hold a peculiar approach to the sources of that law. The most controversial of all is their concept of ''customary law''. This paper is an attempt to clarify the meaning and scope of these sources mainly from some aspects of the respective rules adopted in the 1998 Rome Statute. It is also a continuance in this author's research on the sources of public international law.