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Lec 14 - Comparative Criminal

Lec 14 - Comparative Criminal - ICCIL Lecture Notes Term 2...

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ICCIL Lecture Notes: Term 2 Lecture 14 International Criminal Law: Sources and law making process Reading: General Principles: 1. The discipline of international criminal law has long suffered form a deficit of clarity with regard to many of its legal concepts. This is the case for the individual offences as well as the general part, as has become clear over the last decade when one looks at the decisions emanating from within the international criminal courts, mostly ICTY/R 2. By a slow process on a case-by case basis the judges of these courts had to hammer out the meaning of individual offences, procedural guarantees, basic constitutional principles such as for example, the concept of inherent power. Development of ICL: 1. They were not always in agreement and in some cases it took a long time before the appeals chamber finally settled the matter in a certain case. 2. The difficulties were increased by the fact that the judges came from very different legal backgrounds and legal systems. Some had experience as judges in criminal trials before they joined an international court but quite alot did not. 3. The great divide between the common law and continental/civil law traditions between adversarial and inquisitorial, exacerbates these problems. 4. The statues and Rules of Procedure and Evidence of the ad hoc tribunals ICTY/R hardly contain any provisions as to the ‘general part’ and much was left to the interpretation or imagination of judges. 5. With the advent of the ICC statute and its elements of crimes this deficiency has been remedied to some extent but there are still large gaps that will need to be filled by the same legal mechanism as the other international courts. 6. Conversely the development on the international level appears to have an increased influence on national legal systems especially in transitional countries like the former Yugoslavia, east timor and Iraq where legal transplants from the international fore have found their way into domestic settings and disturb the legal traditions. 7. There is a significant difference between the ICC and the rest of the international and so called hybrid tribunals. The ICC is based on a negotiated treaty and statute and applies first and foremost the law as laid down by the Assembly of State Parties, with only limited reliance on judicial law making and much narrower lacunae for the use of customary law or comparative research into general principles of law. 8. The ICC is also in the position to have recourse to the wealth of jurisprudence that has come out of the ICTY/R and SCSL. 9. Art. 38 of the ICJ statute deals with what are the sources of international law impacting on that court.
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10. From looking at ICTY decisions, it is reasonable to conclude that genuinely international offences tried before genuinely international courts are rarely found in conventions if one leaves aside the grave breaches provisions of the Geneva Conventions, the genocide and torture conventions.
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