Racing the Human Spirit:
The Position of International Criminal Law
Understanding the role of custom in international criminal law within the
doctrine of substantive justice vs. strict legality and its reflection in the
Rome Statute.
Chagit van den Berg
University of Amsterdam
Prof. H. van der Wilt
Faculty of Law – International Criminal Law
Final Thesis – L.L.M. International and European Law July 26, 2018
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“Unfortunately, men’s criminal imagination appears unlimited and, by closing the definitions of crimes in narrow, punctilious formulations, the judges have been forbidden in advance to suppress future malevolent inventions of the human spirit” – Alain Pellet1
1 Pellet, A.,“Applicable Law”, in Antonio Cassese, Paola Gaeta and John Jones (eds.), The Rome Statute of the
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Table of Content
Abstract ... 4
Abbreviations ... 5
Introduction ... 6
1 | Background for Debate ... 8
1.1 | Establishment of International Criminal Law ... 8
1.1.1 | The Statute of Rome ... 9
1.2 | Issues and Development ... 10
1.2.1 | Future Prospects ... 11
2 | Theoretical Background ... 12
2.1 | Defining International Criminal Law ... 12
2.2 | Sources ... 13
2.2.1 | Article 38(1) Statute of the International Court of Justice ... 13
2.2.2 | Article 21 Rome Statute of the International Criminal Court ... 14
2.2.3 | Customary International Law ... 16
2.2.4 | General Principles of International (Criminal) Law ... 17
2.2.5 | Nullum crimen nulla poena sine lege ... 18
2.3 | Defining International Crimes... 20
2.3.1 | Subjective Justice vs. Strict Legality ... 21
2.3.2 | Rome Statute: Elements of Crimes ... 23
2.4 | Conclusion ... 24
3 | Analysis ... 25
3.1 | The Principle of Specificity and Custom ... 25
3.1.1 | Substantive Justice... 26
3.1.2 | Strict Legality ... 28
3.2 | The Principle of Non-retroactivity and Custom ... 29
3.2.1 | Substantive Justice... 29
3.2.2 | Strict Legality ... 31
3.3 | Article 10 Rome Statute and the Elements of Crimes ... 32
3.4 | Conclusion ... 33
Conclusion ... 34
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Abstract
Since the creation of international courts and tribunals, the development of international criminal law has moved rapidly. Crimes that used to go unpunished are now more often found to be subject of individual criminal adjudication. The proliferation of the will to fight impunity within the international community seems to have resulted in the creation of a solid international criminal legal system. Or at least so it seems.
Defining which conduct should and could be regarded as criminal under international law is an often ambiguous and difficult process. Not only does this seem to be inherent to the nature and characteristics of international criminal law as such, but simultaneously because international law is influenced, more than domestic law, by political decisions and practice of other States. On the other hand, this can also be seen as strength and a way to keep criminal law in line with present circumstances in the international sphere. It is exactly here where customary international (criminal) law finds its fundamental role.
The aim of this paper is to understand the role of customary international criminal law within the formation and development of international crimes. In trying to formulate this position, a comparative analysis is done between two legal doctrines: substantive justice and strict legality. The paper examines the characteristics of the doctrines in light of the overarching general principle of (international) criminal law, nullum crimen nulla poena sine lege. Testing the compatibility between the doctrines and the underlying principles of the nullum crimen sine lege principle: specificity and non-retroactivity, this paper intents to provide insights in what the role of customary law is or could be within them.
The thesis contributes to the field of international criminal law by providing a different angle in understanding of the role of custom in international criminal law and its influence on the formation , interpretation and definitions of international crimes. The field of international criminal law and the theories and approaches shaping it, are of essential importance in today’s fast changing and global society. Understanding the role custom plays within this provides insight in past development and possibly future challenges.
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Abbreviations
ASP Assembly of States Parties
ECHR European Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IMTFE International Military Tribunal for the Far East
NMT Nuremberg Military Tribunal
RS Rome Statute of the International Criminal Court
SCSL Special Court for Sierra Leone
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Introduction
Framing the Discussion
As the international community becomes more interconnected, intertwined and interdependent, international criminal law (hereinafter: ‘ICL’) and its defined criteria seem to more and more struggle to keep up with current challenges posed by changing conflict, transnational criminal activity and fast developing content of crimes.
Aim and Research Question
The purpose of this paper is to broaden the understanding of the role of customary law in the area of ICL and specifically within two existing legal doctrines: substantive justice and strict legality. The investigation will focus on the sources of public international law, ICL in particular and the use of custom as source within the doctrines of strict legality and substantive justice. Moreover, this paper will study the compatibility of custom with the overarching general principle of nullem crimen nulla
poena sine lege and its elements of specificity and non-retroactivity in light of the mentioned
doctrines.
Following this aim, the paper will seek to answer the following research question and sub-questions: ❖ What is the role of customary ICL within the doctrinal context of substantive justice and
strict legality?
▪ Is the use of customary international criminal law as a source compatible with the principles of specificity and non-retroactivity?
▪ To what extent are the principles of non-retroactivity and specificity and their relations to the legal doctrines of non-retroactivity and specificity reflected in the Rome Statute of the International Criminal Court?
Delimitations
The principles of specificity and non-retroactivity are used to define the relationship between customary international criminal law and the legal doctrines analyzed. Even though there are other principles of law that can be used in this analysis, like the prohibition of analogy2, only the ones
mentioned will be used due to the scope and form of this paper. Furthermore, this topic is prone to be researched further and in more depth, but specifically due to time and scope limitations; it will only construct a general idea of where I believe some interesting relations exist and should be researched.
2 The prohibition of analogy requires definitions of crimes to be strictly construed so that they are not comparable to
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Methodology
This study’s methodology deconstructs the notion of customary international law as a source, examining the principles and doctrines of international law pertaining to it. The analysis connects underlying characteristics of the legal doctrines, formulated through the overarching principle of legality and including the principles of non-retroactivity and specificity as its elements, with the discussed object and purpose of customary international criminal law. The paper hypothesized that there is a difference in the role of customary international law within both legal doctrines and tests this by looking into their compatibility with two of the mentioned core general principles of (international) criminal law: specificity and non-retroactivity. Material used for this determination consists of both primary and secondary sources. Primary sources used include relevant provisions in international legislation from the Statute of the International Criminal Court and International Court of Justice. As for secondary sources, doctrines from practitioner and academic experts in the field of ICL have been used together with relevant case law from international courts.
State of the Art
The role of custom in international law is a known subject of debate. Especially within the area of ICL, it has been a much-researched topic by eminent authors like Antonio Cassese and Mahmoud Cherif Bassiouni. Consequently, the material to be found on the topic of customary international criminal law is comprehensive. However, most of these studies concern the role of custom within the current international legal framework, its development over time and what this means for the future of customary international criminal law as a whole. This paper focuses more on comparing the specific role custom plays within the legal doctrines of strict legality and substantive justice. It aims to explain what this difference is, researching and testing custom as a source of ICL to general principles of (international) criminal law within the scope of the doctrines, a study filling an existing research gap.
Disposition
Chapter 1 presents the relevant background information on the position of customary international law within the area of criminal law. Chapter 2 then continues by providing the applicable theory behind the legal doctrines and notions necessary for the analysis following. In Chapter 3, the analysis will combine the theory discussed in the previous chapter within a framework of two opposing doctrines. Finally, the conclusion will try to answer the research question stated in this introduction and provide some future ideas following from the analysis.
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1 | Background for Debate
Following the establishment of the International Military Tribunal at Nuremberg, international law has generally shifted its focus from interstate governance towards bringing forth direct effects within States.3 Simultaneously, States have increasingly become responsive towards the values and norms of international law as a whole. Specifically, prevailing international human rights movement have necessitated the domestic legal systems and foreign policy to be aligned with ICL, to demonstrate State commitment in protecting against serious human rights violations on their own citizens, and willingness to punish the worst individual offenders of ICL norms.4 The creation of the International Criminal Court (hereinafter: ‘ICC’) is the best example of this shifting phenomenon. The ongoing developments in the field of ICL go beyond the traditional domestic governing function and emphasize the apparent desire to enhance the status quo. The idea follows an underlying concept of a commonality of inherent human values. Followed by other international orientated developments, aimed at promoting the interest of individuals at an international level, ICL is to be regarded as a precursor of an international legal order depending less on traditional, sovereignty-based state cooperation, and more on shared international values and enforceable rights under international law.5 Currently however, the debate has renewed concerning this principle of national sovereignty, specifically within the field of ICL. As several States have stated to reinforce their national sovereignty by (threatening with) withdrawing from the ICC6, the question arises whether the idea of
individual criminal responsibility within international law is still found desirable by the States creating it.
1.1 | Establishment of International Criminal Law
Originally, ICL is a composite of three different branches of law: international humanitarian law, human rights law and domestic criminal law.7 Where fundamental principles in criminal and humanitarian law construct the idea of liberal criminal justice, underpinning a system of personal legality, culpability and fair classification8, international human rights is mainly focused on alleged
3 Slaughter AM and Burke-White W “The Future of International Law is Domestic (or, The European Way of Law)”
(2006) 47 (2) Harvard Journal of International Law 327-352, 328.
4 Drumbl MA “Collective Violence and Individual Punishment: The Criminality of Mass Atrocity” (2004-2005) 99 (2)
Northwestern University Law Review 538-611, 546 and Schabas WA “Sentencing by International Tribunals: A Human Rights Approach” (1997) 7 Duke Journal of Comparative and International Law 461-518, 515.
5 Johnson D, Pete S and Du Plessis M Jurisprudence: A South African Perspective (2001) Butterworths, Durban 34-35. 6 Reuters Institute, “Philippines informs U.N. of ICC withdrawal, court regrets move”, March 16, 2018 (accessed 16 July
2018) available online at: https://www.reuters.com/article/us-philippines-duterte-icc-un/philippines-informs-u-n-of-icc-withdrawal-court-regrets-move-idUSKCN1GS0Y5
7 A. Cassese, International Criminal Law (2nd edn, 2008), at 36 ff.
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victimhood and state responsibility.9 In practice, this means a favorable attitude towards the strict
construction of statutes and codes from a criminal justice perspective, while object and purpose of human rights law is normally adjured to guarantee that “harms are recognized and remedied, and that, over time, there is progressively greater realization or respect for human dignity and freedom”10, thus justifying typically broad or widened interpretations of crimes. This tension,
between protection and prosecution, also known as the “sword and shield” of ICL, is particularly interesting when analyzed in light of different legal doctrines, through which the codification of ICL was desired to provide balance between these two opposite objectives. Moreover, the establishment of the ICC as a permanent international court can also be seen as to follow this same motive.
1.1.1 | The Statute of Rome
After the International Law Commission (the “Commission”) was called upon by the General Assembly to work on the ICC, one of its Working Groups delivered a report concerning a general bases for the ICC to proceed upon.11 At this point, the Working Group left the decision on the substantive definitions to the jurisdiction of the Court itself and made no attempt at defining the proposed crimes in the Statute.12 In this regard, it was presumed that both the treaties and the
customary international law at hand would be incorporated in the final Statute rather than exclusively codified.13 The exact wording of the Commission after the approval of the 1994 Draft stated
concerning the crimes within its jurisdiction:
“The Statute is primarily an adjectival and procedural instrument. It is not its function to define new crimes. Nor is it the function of the Statute authoritatively to codify crimes under general international law. With respect to certain of these crimes, this is the purpose of the Draft Code of Crimes against the Peace and Security of Mankind, although the Draft Code is not intended to deal with all crimes under general international law. To do so would require a substantive legislative effort.
9 Danner, A.M., and Martinez, J.S., ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the
Development of International Criminal Law’, 93 California L Rev (2005) 87-89.
10 Idem, 89.
11 Report of the Working Group on a draft statute for an international criminal court, in Report of the International Law
Commission on the work of its forty-fifth session, U.N. GAOR, 48th Sess., Supp. No. 10, at 106-07, U.N. Doc. A/48/10
(1993).
12 Sadat, L.N., ‘Custom, Codification and Some Thoughts about the Relationship between the Two: Article 10 of the ICC
Statute’, 49 DePaul L Rev 909 (2000) pp. 912-13.
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Accordingly, the Commission has listed the four crimes without further specification…”14
Following from the text, it can be concluded that the Commission was reluctant in engaging to create some kind of International Criminal Code as part of the establishment of the ICC. Not only had the Commission already presented several different versions of a Draft Code of Crimes, which had never been met with quite the recognition due to political strife15, it also had to deal with the fact that the jurisdiction ratione materiae as initially perceived in its 1994 draft was much broader than the final Statute. In consideration of both these hurdles, it was thus imaginably inefficient to pursue any far-reaching definitions at this point.16 In the end, it was generally agreed upon that the crimes within the jurisdiction of the proposed Court would have to be fully defined in its Statute rather than only mentioned.17 A Preparatory Committee was established by the General Assembly to deal with these issues and was required to “prepare a widely acceptable consolidated text of a convention for an international criminal court…”18
1.2 | Issues and Development
The main issues following, consisted of the fact that governments were thus confronted with the establishment of an ICC that would have jurisdiction over crimes that were yet to be determined in substance.19 There seemed to be an overarching feeling of violating the nullum crimen, nullum poena
sine lege principle if the included crimes were not defined sufficiently by the Court in advance. The
problems with drafting seemed both of technical as of political nature, especially since governments of States involved were to determine the content through negotiation, during which severe differences in content as well as interpretation emerged.20 Since the established international criminal rules were formed by States who participated in the process, the delegates’ views were influenced by their national and regional interpretation of crimes, impeding the chances for consensus. Even though there were some statutes already in place providing and international criminal jurisdictional
14 Draft Statute for an International Criminal Court, in Report of the International Law Commission on the works of its
forty-sixth session, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994).
15 Thirteenth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, U.N. GAOR, 50th Sess., at
5, U.N. Doc. A/CN.4/466 (1995).
16 Bassiouni, M.C. “The Statute of the International Criminal Court: A Documentary History” 17 (1998).
17 Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, at
para. 57, U.N. Doc. A/50.22 (1995).
18 U.N. GOAR 50/46, 50th Sess., at 2, U.N. Doc. A/Res/50/46 (1995).
19 Sadat Wexler, L., First Committee Report on Jurisdiction, Definition of Crimes and Complementarity, 13 Nouvelles
Études Pénales 275, 166-67 (1997).
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base, such as for the ICTY and ICTR, the included in their statutes crimes only concerned an exclusive application to a specific geographical region and conflict, and had no explicit general base for future application.21 In addition, like the Rome Statute of the ICC, it factually only applied to the Ad Hoc Tribunals themselves and had no intention of being identified an authoritative constitution of ICL. The search for consensus was probably challenged even more by different States following different approaches when it comes to establishing and determining (international) criminal standards.
1.2.1 | Future Prospects
It could be, and is by some, argued that many provisions incorporated in the Rome Statute might restrict currently existing legal norms.22 The main concern derives from the idea that the process of treaty making in ICL might, instead of improving the possibility to induce international justice, produce legal definitions of crimes that could be considered “lowest common denominators” within the international community, or as scholar Alain Pellet once phrased it, not developing fast enough to compete with the human spirit.23
21 Cryer, R., et all. ‘An Introduction to International Criminal Law and Procedure’, 3rd edition (Cambridge, 2014), p.
127.
22 Pellet, A.,“Applicable Law”, in Antonio Cassese, Paola Gaeta and John Jones (eds.), The Rome Statute of the
International Criminal Court (OUP, 2022) 1051-1084, at 1059.
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2 | Theoretical Background
2.1 | Defining International Criminal Law
Since international law generally governs the duties and rights of States24, its relationship with
criminal law, which concerns prohibitions of individuals typically, is challenging. Especially following that any violations of individuals are punitory by these same States.25 Two main elements
are to consider in this relationship. First, the establishment and ongoing development of the concept of ICL, enforceable through international institutions with jurisdiction and direct focus on individuals, is a relatively new phenomenon. It was only in the 1990s that substantive ad hoc International Tribunals were established for Rwanda and the Former Yugoslavia, seen as a landmark in the unfolding of ICL.26 As was affirmed during the Tadiç case in the International Criminal Tribunal for the former Yugoslavia (ICTY):
“A state-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach … international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings.”27
Since there is a clear form of proliferation of the enforcement of ICL through international tribunals, the existence of international crimes as such is presupposed. However, formulating a clear definition of international crimes has proved to be another challenge.28 The definition followed for the purpose of this paper will be that an ‘international crime’ refers to breaches of international law that are placed under the jurisdiction of international tribunals and courts. Within this category, two main types of crimes can be found: I) crimes for which States, parties to numerous treaties, are obliged to criminalize in their own national laws29, and II) the ‘core’ crimes found under articles 5-8 of the Rome Statute of the ICC30 This differentiation is however mainly jurisdictional in nature, since they
are all considered as threatening or breaching the values protected under general international law.31
24 Jennings, R., Watts, A. (eds.), Oppenheim’s International Law, 9th edition (London, 1994), pp. 5-7. 25 Williams, G. ‘The Definition of Crime’ (1995) 8 Current Legal Problems, pp. 107.
26 Simonovic, I., ‘The Role of the ICTY in the Development of International Criminal Adjudication’ (1999), 23 Fordham International Law Journal, pp. 440-441.
27 Tadiç, ICTY A. Ch., 2 October 1995, par. 97.
28 See e.g. Schwarzenberger, G., ‘The Problem of an International Criminal Law’ (1950) 3 Current Legal Problem, pp.
263. or Bassiouni, M.C., ‘International Crimes: The Ratione Materiae of International Criminal Law’, International
Criminal Law, 3rd edition (Leiden, 2008) Vol. I, 129, pp. 134-135.
29 These include among others the crimes of piracy, torture, slavery, drug trafficking and terrorism.
30 These articles include the ‘core’ international crimes of genocide, crimes against humanity, war crimes and the crime
of aggression. Article 5-8 Rome Statute of the International Criminal Court (International Criminal Court [ICC]) 2187 UNTS 3, UN Reg No I-38544, UN Doc A/CONF.183/9.
31 Preamble Rome Statute of the International Criminal Court (International Criminal Court [ICC]) 2187 UNTS 3, UN
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Second, as ICL is in essence a lex speciali of general international law, its applicable sources are equivalent.32 The special nature and place of ICL and international crimes within the legal
landscape however, finds its roots in the fact that although the sources used are international in nature, the consequences following are criminal.33 As the crimes have their characteristic basis within the international sphere and are regarded to threaten or violate the values protected under general international law by the international community - a vision emphasized in the Rome Statute accordingly34 - its overall nature remains international and therefore binds it to the compatible sources.
2.2 | Sources
Within the international legal order, the accepted authoritative provision on the general sources of international law is considered to be Article 38(1) Statute of the International Court of Justice.35 In paragraph 2.2.1 this definitive provision will be elaborated on further. Differently, the ICC accommodates its own set of sources, which are comparable but barely equal to those laid down for the ICJ.36 These will be discussed in paragraph 2.2.2, after which elements of both will be
highlighted and discussed more thoroughly in the following paragraphs.
2.2.1 | Article 38(1) Statute of the International Court of Justice
Since the ICJ statute is an indispensable part of the Charter of the United Nations (UN), it makes the ICJ the primary judicial organ concerned with international law in this framework. Its provision reads:
“The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations;
32 Cryer, supra note 21, at 8. 33 Cassese, supra note 7, at 38.
34 Rome Statute of the International Criminal Court (International Criminal Court [ICC]) 2187 UNTS 3, UN Reg No
I-38544, UN Doc A/CONF.183/9, Preamble paragraphs 3 and 4.
35 Statute of the International Court of Justice (United Nations [UN]) 33 UNTS 993, UKTS 67 (1946) Cmd 7015, 3
Bevans 1179, 59 Stat 1055, 145 BSP 832, TS No 993, Chapter II (Competence of the Court) Article 38.
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d. subject to the provision of Article 5937, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.”38
The above specified sources by the ICJ generally function within the framework of sovereign States constituting the international legal order. Sub (a) concerns those treaties to which the States before the Court are parties, since treaties can only be considered binding and applicable to them. Sub (b) is specifically dedicated to recognize the source of custom under international law and adjudication before the ICJ. Furthermore, ‘general principles’ (c) can also be applicable as an autonomous source, but only if they are not (yet) understood as being customary law. This transformation from general principles to general custom normally happens through the codification of conventions proposed by the States themselves.39 Furthermore, the relationship between the actors in the field of international adjudication is remarkably different, possibly affecting the sources suitable to use. Before the ICC f.e. - the Prosecutor, Judges, the accused and the victims – composes a very different relationship than between legally equal States before the ICJ, and consists more parallel to the proceedings of criminal prosecution before national courts.40
2.2.2 | Article 21 Rome Statute of the International Criminal Court
Article 21 of the Statute of the ICC concerns the applicable law available for the Court to use in its judgements. Its provision reads:
1. The Court shall apply:
a. In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
b. In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;
c. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not
37 Article 59 specifies: ‘‘The decision of the Court has no binding force except between the parties and in respect of that
particular dispute.’’
38 Statute ICJ, supra note 35, article 38(1).
39 Degan, V.-D. (2005), On the Sources of International Criminal Law, Chinese Journal of International Law, 45-83, p.
49.
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inconsistent with this Statute and with international law and internationally recognized norms and standards.
2. The Court may apply principles and rules of law as interpreted in its previous decisions.
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 grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
In hierarchical order, this article in the Statute sets out the different sources of law to be applied by the ICC, which include the Rome Statute itself and the attached Elements of Crimes, as well as ‘applicable treaties and the general principles and rules of international law’.41 Contrary to article 38
of the ICJ however, even though they seem to be rather homogenous in character, article 22 Rome Statute does not mention customary rules of law explicitly as any of the possibly applicable legal rules before the Court. What is noticeable as well, is article 21(3), which seems to create a ‘super-legality.’42 As a super-legal norm, it could be said that the interpretation of international crimes
within the Statute requires implicit consistency with human rights in all circumstances. 43
Furthermore, it seems like, following the hierarchy presented in article 21, applicable sources of law for other purposes than the protection of the accused’s rights have been given little thought in terms of their relationship between the Rome Statute and international human rights.44 It could be seen as if article 21 was established in clear concurrence with the principle of legality – which will be elaborated in paragraph 2.2.4. – and an intended ambition to limit the judicial discretion regarding the application and interpretation of the Rome Statute.45
41 ICC Statute, supra note 34, article 21(1). 42 Pellet, supra note 22, at 1051.
43 Grover, L., “A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of
the International Criminal Court”, EJIL (2010), Vol. 21 no. 3, pp. 543-583 at 559.
44 Verhoeven, J., ‘Article 21 of the Rome Statute and the Ambiguities of Applicable Law’, 33 Netherlands Yrbk Int’l L(2002) 3, at 17.
45 Gallant, ‘Individual Human Rights in a New International Organization: The Rome Statute of the International
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2.2.3 | Customary International Law
Customary international law is the body of international law deriving from State practice in combination with opinio juris46. The latter refers to the idea that States comply with certain practice following a sense of obligation rather than any strategic, economic or other interest. The former, state practice, comprises official acts of States including normative, physical, judicial and diplomatic conduct. 47 Furthermore, although considerably controversial, the official practice of other international entities such as the United Nations, European Union and the International Committee of the Red Cross, is classified as state practice by some international courts and tribunals as well.48 Notwithstanding the exact terms of the definition, an important feature of customary international law remains that it is unwritten law and therefore difficult to establish, even so more in the case of ICL. It is for this reason that the institutions using it have often used written documents, like treaties and resolutions, to provide evidence for its existence.49
The concept of customary international law has relevance in international criminal proceedings mainly because, either statutes of tribunals and courts refer to custom as a source within its jurisdiction, or lacunae exist in the applicable legal provisions. In the latter instances, the institutions will have to fill the gaps left in its founding statute according to customary rules. In light of the ICC, this requires some further explaining. First of all, although article 21 of its Statute does not provide for custom as a source of law to be used, the ICC only has jurisdiction over those crimes listed in the Statute and committed only after its entry into force, meaning more lacunae could actually become apparent as time passes, gaps where custom might provide assistance.50 Furthermore, the Statute of the ICC refers very detailed to the law of individual criminal responsibility and the elements of crimes. It thus follows that its judges will be less likely to refer to custom in determining the definition of crimes, or the application of individual criminal responsibility. The general intent of the Statute adopted seems to have been under-inclusive of crimes following customary international law, rather than over-inclusive.51 Second, even though the concept of precedent is precluded from the Statute of the ICC, it seems likely that a similar rule to
46 Cryer, supra note 21, at 10.
47 Cassese, A., et al.,(2011) International Criminal Law: Cases and Commentary, New York: Oxford University Press.,
pp. 5.
48 Ibid. 49 Ibid.
50 ICC Statute, supra note 34, article 21.
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stare decisis 52 will progressively establish in practice to ensure the uniformity of legal interpretation.53
Within the earlier established ad hoc criminal tribunals, the usage of custom in adjudicated cases differs. AS Theodor Meron (President of the ICTY) stated: “customary international law now comes up in almost every international court and tribunal. [But] … it is in the international criminal tribunals … that the jurisprudence on customary law has been most rich.”54
2.2.4 | General Principles of International (Criminal) Law
As a mentioned source of international law in article 38(1) (c) ICJ, general principles of international law form an integral part of the international legal construction. Their specific role however, can be explained in different ways. In the first place, they form the basis of any legal relationship between States in the international realm. In the absence of general principles, no legal order would properly function. Secondly, on the other hand, general principles are understood as a resort for Judges who find themselves in situations of lacunae.55 Even though, as mentioned before, the application of analogy is prohibited for criminal judges, there is some limited space for general principles to be applied in this way. This is demonstrated for example in article 21(1)(c) of the Rome Statute, which provides for this limited application and to which article 31(3) afterwards refers, elaborating on the issue of exclusion of criminal responsibility.56 However, for the purpose of researching the role of general principles in ICL, it seems of a bigger importance to elaborate on the former interpretation, the broad concept as international legal basis. It is in this context that the impact of general principles in ICL is often overshadowed.57
Prior to the existence of its current form in ICL, general principles arose at a national level.58 Originally as guarantees to protect citizens against arbitrariness of judges and therefore allegedly constituting a part of human rights already since its incorporation in the Magna Charta in 1215.59 However, even until the establishment and entry into force of the ICC, a sufficient codification of general principles remained of secondary importance.60 Today, Part 3 of the ICC Statute includes
52 The legal principle of determining points in litigation according to precedent. 53 Cassese, supra note 45, at 6.
54 Meron, T., The Making of International Criminal Justice: A View from the Bench (Oxford, 2011), pp. 29. 55 Danner and Martinez, supra note 9, at 89.
56 ICC Statute, supra note 34, article 31. 57 Danner and Martinez, supra note 9, at 89. 58 Degan, supra note 39, at 54.
59 Article 39, Magna Charta libertatum (1215). Available online at:
http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39
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provisions concerning ‘general principles of criminal law’, forming the heart of an independent set of general principles of ICL. They are shaped on both international custom and ‘general principles of law recognized by civilized nations’ as mentioned in article 38(1) (b) and (c) ICJ.61 It is important to realize that this has proven to be particularly difficult due to the fact that determination of law and norm creation in the field of general principles develops together with largely similar parallel existing domestic legal principles. General legal principles derived from domestic legal systems might, in certain situations, even be suitable for the regulation of international issues.62 All national legal systems have unwritten and written rules regarding general principles of criminal law, spurring lawyers to read ICL provisions initially within the context of acquainted doctrine and terminology.63 This is seen in Part 3 of the ICC Statute as well, where most provisions are an ‘unsystematic conglomeration from a variety of legal traditions’64, and where elements often can be trailed back to
domestic legal systems.
2.2.5 | Nullum crimen nulla poena sine lege
Included in Part 3 of the ICC Statute is one of the most important principles in criminal law, the
nullum crimen nulla poena sine lege, also known as the principle of legality that guarantees the
rights of individuals in proceedings before courts.65 It has obtained an important status in criminal
law and is also important in the human rights context of the right to a fair trial, a reflection of which can also be seen in the permitted use of sources in international law. Considering the sources provided in article 38(1) ICJ and article 21 ICC however, a clear difference between inter-state and intra-state proceedings, or civil and criminal can be distinguished. It is generally accepted that the sources mentioned in article 38(1) ICJ do not contain a certain hierarchy of importance.66 However, in criminal procedures, both national and international, following the important status of the principle of legality, written sources have a preference over unwritten ones. For example, where the judges of the ICJ can possibly resort to all sources of international law – as defined in article 38(1) ICJ – in order to come to a final judgment, the ICC cannot.67 It follows not only from the difference in proceeding parties before the courts, but simultaneously from a different objective concerning the
61 Statute ICJ, supra note 35, article 38(1)(b) and (c).
62 Raimondo, F., (2008) General Principles of Law in the Decisions of International Criminal Courts and Tribunals
Leiden: Brill Publishers, pp. 8.
63 Werle, and Jeßberger, supra note 57, at 166.
64 A. Eser, ‘“Defences” in Strafverfahren wegen Kriegsverbrechen’, in K. Schmoller (ed.), Festschrift Triffterer(1996),
755, at 775 (translated from German).
65 ICC Statute, supra note 34, articles 22 and 23. 66 Degan, supra note 39, at 51.
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provided jurisdiction. Judges at the ICJ are obliged to identify all possibly relevant legal rules applicable to the disputes brought before them, by which they tend to avoid the possibility of a non
liquet68 or gap in the law. Criminal judges on the other hand are strictly prohibited to resort to other sources than those explicitly provided, even if this could contribute to improve existing legal imperfections.69
2.2.5.1 | Specificity and Non-retroactivity
The principle of nullum crimen sine lege includes the underlying elements of non-retroactivity and specificity.70 Its intention is to ensure the clear publication of laws, providing insight for people whether or not their future behavior would be deemed acceptable and legal.71 The principle of non-retroactivity, specifically focusses on the prohibition of the existence of criminal liability for conduct that was not (yet) deemed illegal at the moment of execution. The principle aims at safeguarding persons against arbitrary decision-making by authorities and is known as being far-reaching, due to the advancement of international law.72 The prohibition of retroactivity was expressed by Justice Robertson as: “In every case, the question is whether the defendant, at the time of conduct which was not clearly outlawed by national law in the place of its commission, could have ascertained through competent legal advice that it was contrary to international criminal law.”73
As for specificity, the principle of legality requires the definitions of (international) crimes to be precise and sufficiently clear. In this regard, Justice Robertson mentioned in 2004 that: “The requisite clarity will not necessarily be found in there having been previous successful prosecutions in respect of similar conduct, since there has to be a first prosecution for every crime and we are in the early stages of international criminal law enforcement.”74 The European Court of Human Rights (ECHR) defined that the principle of specificity permits courts to use judicial interpretation to clarify rules on a case-by-case basis.75 The Court formulated two tests, of accessibility and foreseeability, to
68 Non liquet literally means “it’s not clear” in Roman and today applies to situations where there is a gap in the law
(lacuna).
69 For example, they are prohibited to use any form of analogy, form new rules of custom or apply rules of positive
criminal law retrospectively.
70 Cryer, supra note 21, at 18.
71 See generally Gallant, K., The Principle of Legality in International and Comparative Law: Theory and Doctrine
(Cambridge: Cambridge University Press, 2009).
72 Spiga, V., “Non-retroactivity of Criminal Law: A New Chapter in the Hissène Habré Saga”, 1 Journal of International Criminal Justice, 9, 1 March 2011, pp. 5–23.
73 Prosecutor v. Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)
SCSL-2004-14-AR72(E)(31 May 2004), Dissenting Opinion of Justice Robertson, para. 13
74 Ibid.
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evaluate whether a violation of the principle of legality exists.76 According to the ECHR, the law in
question can both be written or unwritten. In principle, the tests of foreseeability and accessibility are satisfied “where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.”77As shown from the wording of the Court, the tests do not require all offences defined in detail.
As stressed by Alain Pellet as well, the ECHR and Justice Robertson both seem to follow the presumption that it is difficult for the drafters of the Rome Statute to imagine all cruel and inhumane crimes possibly coming into existence in the future, or providing an exhaustive list of them. Open-ended crimes with a lingering specific definition are thus not a violation of the principle of specificity, if sufficiently foreseeable and accessible for the perpetrator. With regards to the prohibition of retroactivity, these open-ended crimes78 only suffice where perpetrators have foreseen or should have known that their conduct would be a comparable or even worse crime than those currently formulated.79
2.3 | Defining International Crimes
Defining which offences can be qualified as constituting international crimes under the jurisdiction of international courts and tribunals, requires an understanding of their establishing process. It has to be noted, that for the purpose of this paper, only the international crimes as established by articles 6-8 of the Rome Statute of the ICC will be included. As stated in article 5(1) of the Rome Statute, the Court has jurisdiction over ‘the most serious crimes of international concern.’80 Different than the
establishing Statutes of other international tribunals, the ICC follows detailed descriptions of these crimes, of which the definitions are ‘strictly construed and shall not be extended by analogy.’81
Following the general principles of ICL discussed earlier, this is not surprising. Aside from the general principles of defenses and liability, the specific definitions of crimes are further elaborated on in the Elements of Crimes and are to be used concerning the application and interpretation of the existing provisions.82
76 Kokkinakis v. Greece, ECtHR, para. 52; Baranowski v Poland, (Judgment), ECtHR Application No. 28358/95 (First
Section) (28 March 2000), para. 55
77 SW v. the UK, ECtHR, supra note 75, para. 35.
78 For example: “other inhumane acts” in article 7(1)(k) Rome Statute of the ICC.
79 Prosecutor v. Hadžihasanović et al. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, IT-01-47-AR72, 16 July 2003, para. 34; Prosecutor v. Milan Milutinovic et al., ICTY-99-37-AR72, 21 May 2003, para 38.
80 ICC Statute, supra note 34, article 5(1). 81 Idem, article 22(2).
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2.3.1 | Subjective Justice vs. Strict Legality
Within the field of ICL, two main doctrines for the determination and application of crimes can be found. The substantive justice doctrine, which fundamentally aims at punishing and prohibiting any behavior that is harmful with regards to the well-being of mankind or causes danger to it, whether or not this conduct is already been criminalized legally at the moment of acting.83 Its preeminent interest is to defend society against any abnormal conduct likely to induce damage or jeopardize the constructed legal system.84 In this way, it favors the society as a whole over the individual when considering the definition of criminal conduct. The doctrine of substantive justice was applied within the international legal system for a long period of time, mainly because States were not yet prepared to enter in any treaty that would lay down criminal rules, neither had the rules of custom evolved enough in this area to state that any treaty would simply codify these existing rules of ICL.85 Consequently, the international community relied on substantive justice, were new and exceptionally serious forms of criminal behavior to arise in the international realm. On this notion, the French Judge H. Donnedieux de Vabres even stated that it was not contrary to justice to punish those crimes even if the relevant conduct was not strictly criminalized at the time of its commission. According to him, substantive justice aims specifically at punishing conduct that harms the society severely and is regarded revolting by all members of the community, even if this conduct was not (yet) prohibited (legally) at the time of performance:86
“In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation to sovereignty, but is a general principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring States without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.”
Following this principle, Judge B.V.A. Röling emphasized that in domestic legal systems, the nullum
crimen sine lege principle “is not a principle of justice but a rule of policy” which was “valid only if
expressly adopted, so as to protect citizens against arbitrariness of courts […] as well as arbitrariness of legislators […] the prohibition of ex post facto law is an expression of political wisdom, not necessarily applicable in present international relations. This maxim of liberty may, if circumstances
83 Cassese, A. International Criminal Law, 3rd ed. Oxford: Oxford University Press. pp 27 84 Ibid.
85 Ibid.
86 International Military Tribunal, judgment of 1 October 1946, in The Trial of German Major War Criminals.
Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22nd August ,1946 to 1st October 1946), par. 39.
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necessitate it, be disregarded even by powers victorious in a war fought for freedom” (at 1059).87 He
furthermore argues that there exist different classes of criminal offenses and states that: “Crime in international law is applied to concepts with different meanings. Apart from those indicated above [war crimes], it can also indicate acts comparable to political crimes in domestic law, where the decisive element is the danger rather than the guilt, where the criminal is considered an enemy rather than a villain and where the punishment emphasized the political measure rather than the judicial retribution”.88 Judge Röling concluded that these classes of crimes, of which he considered crimes against peace an example, were to be punished because of the specific dangerous character of the individual conducting them. He thus addressed security considerations as a key factor in the consideration of types of crimes and their possibility of adjudication.89
The other doctrine, strict legality, or formal justice, follows a different path and considers that an individual may only and exclusively be held criminally liable if his conduct was regarded a criminal offence at the time of performance under the applicable law.90 Originally, this idea stems from the knightly and baronial class, opposing the arbitrary power of their rulers, and was found explicitly in article 39 of the Magna Charta of 1215.91 The main intention of the doctrine is thus restraining the power of the ruler and safeguarding the legislators’ and judiciary’s rights and privileges, protecting the individual against the power of the majority.92 Currently, this principle is
upheld by most democratic civil law countries as an overarching basic legal principle, which, contrary to the substantive justice doctrine, favors the rights of the accused over the society as a whole (favor rei vs. favor societatis).93 However, in certain common law States, there is still a
tendency to follow a more qualified approach of the strict legality principle since judge-made law is strongly embedded in its legal systems and sometimes even prevails.94 On the international legal level, the strict legality doctrine has gained territory mainly due to two factors: 1) States have ratified a number of new important international human rights treaties which have incorporated the nullum
crimen sine lege principle as one of their fundamental human rights and a legal standard before any
national court95, and 2) the gradual expansion of the international criminal legal network through the
87 Dissenting Opinion in the Tokyo Trial (Araki and others), at 1059. 88 Idem, at 1060.
89 Ibid.
90 Cassese, supra note 83, at 28.
91 Article 39, Magna Charta libertatum (1215). Available online at:
http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39
92 F. von Listz, ‘The Rationale for the Nullum Crimen Principle’, 5 Journal of International Criminal Justice 4 (2007) pp.
1009-13.
93 Cassese, supra note 83, at 28. 94 Ibid.
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criminalization of certain individual conduct in bilateral treaties and by the power of growing case law from the existing international tribunals and courts.96 Specifically, this growing amount of case
law contributed to the crystallization of existing customary rules or specified and clarified certain defenses and elements of crimes. Consequently, the fundamental concept of the strict legality doctrine was incorporated later in article 22 of the Rome Statute: 97“A person shall not be criminally responsible under this Statute unless the conduct in question constitutes at the time it takes place, a crime within the jurisdiction of the Court”.
Following from these developments, it can be concluded that the strict legality doctrine is thus currently warranted as complying with international law and the adopted perspective of the international community as a whole on the matter.98 What crimes are within the jurisdiction of the Court precisely, allegedly providing criminal responsibility as mentioned in article 22, are elaborated on in the Elements of Crimes document to the Rome Statute.
2.3.2 | Rome Statute: Elements of Crimes
Unlike the ad hoc Tribunals and their Statutes, as previously discussed, article 21 of the Rome Statute lists a specific hierarchical order regarding the sources to use by the Court, would the incorporated Elements of Crimes fail to resolve the legal issue at hand. In character, the Elements of Crimes constitute a non-treaty document, setting out both the mental and material elements of the crimes within the Court’s jurisdiction. The Elements of Crimes must be ‘consistent’ with the wording and purpose of the Statute and shall ‘assist’ the Court in applying and interpreting articles 6-8.99 It can thus be said that, according to the Statute itself, the Elements are the key explanatory source for the Court in cases of uncertainty and vagueness.
In this regard, Article 21 of the Rome Statute of the ICC mandates the Court to use, ‘where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’.100 Although not explicitly
mentioned and highly debatable, according to Alain Pellet, this provision is to be seen as including the application of customary international law as a source as well.101 Following the definitions of both stricto sensu, establishing international criminal responsibility under international law as a whole, and the establishment of criminal tribunals ex post facto, the source of customary
96 UN Secretary-General’s Report on the Security for the Establishment of the Tribunal (S/25704), § 29. 97 See UN Secretary-General supra note 64; and Article 22 ICC Rome Statute, supra note 29.
98 See, amongst other: ICTY, AC, Tadic Interlocutory Appeal 1995, §92; Hadzihasanvic, Alagic and Kubura, Decision on Interluctory Appeal Challenging Jurisdiction in Relation to Command Responsibility, AJ, §§32-6.
99 ICC Statute, supra note 34, article 9(3) and (1). 100 ICC Statute, supra note 34, article 21.
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international law has traditionally been an essential aid regarding the interpretation of international crimes and serves to fill gaps in the existing statutes of the international tribunals.102 Furthermore,
article 31(2) of the Vienna Convention on the Law of Treaties underlines the idea that the relationship between custom and treaties is entangled and complex, in which the former must be taken into account when interpreting the latter where applicable and relevant.103
However, at the same time, some of the articles in the Rome Statute also seem to contradict the authoritative character of the Elements of Crimes. Article 10 provides that “Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for the purposes other than the Statute”104 and article 22(3) continues with emphasizing that the
application of the principle of legality “shall not affect the characterization of any conduct as criminal under international law independent of this Statute”.105 Reading these provisions carefully and taking into account the opening statements of article 6-8 “For the purpose of this Statute” might give the impression that there are also definitions of crimes in ICL separate from the Rome Statute and the Statutes of the ad hoc Tribunals and thus outside the scope of any international jurisdictional entity.
2.4 | Conclusion
The definition, and thus the application of ICL and its crimes, seems to differ not only between regions and domestic spheres, also between the international institutions, sources used and their application concerning the definitions of the crimes to be prosecuted. Finding consensus on the concept of ‘international crimes’ is proven to be extremely challenging. Identifying which sources and definitions to use when adjudicating procedures has thus become an ambitious process. In the next chapter, the theory discussed previous will be analyzed with regards to the question what specific role customary international law plays, following the path of substantive justice versus strict legality. Ultimately, there seems to be a difference between the criminal legality constructed within the Rome Statute and that outside its boundaries, which is both logical and inevitable considering that States might decide to improve the substantial purport of the laws of humanity and war, beyond what is currently codified in the Rome Statute as a collection of promises.106
102 Cassese, supra note 7; Kreβ, C., ‘Nullum crimen, nula poena sine lege’, in R. Wolfrum (ed.) Max Planck Encyclopedia Public Int’l L, paras. 10-11.
103 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p.
331, article 31(2).
104 ICC Statute, supra note 34, article 10. 105 ICC Statute, supra note 34, article 22(3). 106 Sadat, supra note 12, at 912.
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3 | Analysis
Customary international law can be seen as both the product and source of the development of ICL. As customary international law is established by state practice and opinio juris, it follows the tendencies in and characteristics of the international community as a whole and the developing criminal norms and values. Not only do these tendencies and characteristics change over time, also within regions there could be a significant difference in attitude towards certain definitions and interpretations of law. Reflecting on ICL, as it is an overarching concept formed by all these national differentiating components, custom is found to play a considerable role in its formation and evolution. However, due to controversy between doctrines in justice and their specific use in the development of ICL, this role may be difficult to define. In further examination of this role, customary law as a source of ICL will be reviewed on its compliance, within both the substantive justice and strict legality doctrine, with two of the main elements found in the nullum crimen sine
lege principle: specificity and non-retroactivity.107
3.1 | The Principle of Specificity and Custom
Under this general principle of (international) law, specificity, there is an obligation to define criminal rules and provisions as detailed as possible, both the mental and objective elements, so that those potentially concerning them are aware of the prohibited and allowed behavior in advance. The aim is thus to provide foreseeability of the possible consequences, and any breach or compliance with these rules is then done in full knowledge of their scope.108 The principle is also emphasized in the Rome Statute as component of the nullum crimen sine lege principle.109
As generally acknowledged by the international community, ICL has a function of imposing individual criminal liability on persons for those acts that are considered forbidden. This idea opens the question what specific behavior is deemed to fall under these premises of “forbidden conduct” and whether they can be qualified as falling within the scope of an international crime. The ICL context in which this qualification takes place, as Cassese describes, has only recently shifted from applying the doctrine of substantive justice to now applying that of strict legality.110 As for the object
of this paper, that also means a change in the role of customary international criminal.
107 Cassese, supra note 83, at 28. 108 Idem, at 30.
109 ICC Statute, supra note 34, articles 22 and 23. 110 Idem, at 144.
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3.1.1 | Substantive Justice
As laid out in the chapter before, different from national law where the rule of specificity in legal provisions is predominant, ICL consists of many different sources of law which do not all determine their essential elements in detail. It could be said that it therefore deviates from the principle of legality, or the so-called nullum crimen sine lege doctrine, requiring clear and detailed terms of the elements of crimes. The principle aims to guarantee the rights of the alleged perpetrator, as it lays down the prohibited conduct in explicit and transparent terms, leaving the accused well informed on his position in trial. On the other hand, it can also be argued that this principle restricts the courts possibilities of applying its jurisdictional discretion. Cassese uses the Burgholz111 as an example of
this challenge, in which the appointed Judge-Advocate stated:
“It may well be that no particular concrete law can be pointed to as having been broken, and you remember what Defence Counsel Dr Meyer-Labastille said yesterday on the principle of ‘no punishment without pre-existing law’. That principle I agree with but to this extent, that I do not regard it as limiting punishment of persons who have been outraged human decency in their conduct.”
In other words, his view was that whether the act in question broke a concrete law or not was of secondary importance had the person concerned, ‘outraged human decency in their conduct’. As the substantive justice doctrine builds on the presumption that society must be protected against any conduct that could seriously harm it, or jeopardize its general well-being, the overarching belief and qualification about what is criminal lies, theoretically, with the experience of the possible victim.
This time in history, it was thus accepted in some courts that, under certain conditions, the principle of nullum crimen sine lege would not protect the defendant by a certain level of specificity. Following this line of argumentation, customary international rules could, under specific circumstances, be regarded as sufficient legal standards implying individual responsibility. The focus concerned, with the punishment of harm done in a broad sense, as being in the interest of the society as a whole, following the core idea of the substantive justice doctrine, could qualify customary rules as providing the legal standards for those crimes not specified (fully) in written laws. It could be read from the ICTYs Hadzihasanovic112 case that indeed, the principle of nullum crimen sine lege does not necessitate the existence and precise determination of all aspects of a crime. The Chamber states
111 Ibid.
112 Hadzihasanvic, Alagic and Kubura, Decision on Interluctory Appeal Challenging Jurisdiction in Relation to Command Responsibility, supra note 79, par. 32-36.
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that ‘the emphasis on conduct, rather than on the specific description of the offence in the substantive criminal law, is of primary relevance.’113
Since the criminal principle of nullum crimen sine lege also corresponds with several articles laid down in International Human Rights Law114, this area of law might provide further insights in the compatibility of customary criminal law with the principle of specificity. In particular, the International Covenant on Civil and Political Rights was mentioned by the Secretary-General in its report to which the ICTY draft was added.115 It can be argued that article 15(2) of this Covenant includes that an act can be regarded as criminal or illegal when considered as such by the community of States as being essentially so.116 What the threshold for this argument consists of is not explained; however it must be clear that it is not enough for an act to be regarded as simply immoral.117 Would this be the case, then the threshold for specificity would already be met with proof that the specific act of the alleged perpetrator corresponds to the intrinsic criminality of the charged crime, even though not meeting its specific detailed requirements.
In essence, this idea of an act being regarded as criminal or illegal by the community of States is also found in the principle of opinio juris, which together with state practice, forms new customary international law. This seems to be coherent with that brought forward in Delalic,118 in which the Appeals Chamber stated that the acts concerned, “were wrongful and shock the conscience of civilized people, and thus are, in language or article 15(2) of the ICCPR “criminal according to the
general principles of law recognized by the community of nations”.119 The test used did not entail the
specificity of the crimes in terms of written language or detailed definitions exclusively. It questioned whether or not the act was recognized, within the international community as a whole, as being criminal following the essence of the crime laid out in the current legal provisions and included a similar scope. Furthermore, the fact that the ICTY underlines that the acts “were wrongful and shock the conscience of civilized people” refers to the central idea within the substantive justice doctrine that it aims to prosecute those who harm the society as a whole.
113 Idem, par. 62.
114 See for example ECHR, article 7; ICCPR, article 14.
115 Shahabuddeen, M. ‘Des the Principle of Legality Stand in the Way of Progressive Development of Law?’ Journal of International Criminal Justice 2, 4 (2004), 1007-1017, p. 1010.
116 Idem, at 1011. 117 Ibid.
118 Prosecutor v. Delalic et al, IT-96-21-A, Judgement, 20 February 2001, paras. 222-241 (“Celebici Appeal Judgment”),
paras. 311-318.
