Abstract
As has been suggested by Shahabuddeen, “[t]he state of international criminal law was meager at the time of the establishment of the ICTY”. This comes to no surprise as the ICTY has been the only international criminal tribunal established since the IMT at Nuremberg and the IMTFE at Tokyo. Despite some considerable work in the field by the ILC, there has been no enforcement of international criminal law on the international plane, with only occasional cases held on the domestic level. The rather “poor” state of international criminal law in the 1990s was highlighted by the International Committee of the Red Cross, which concluded in 1993 that “the notion of war crimes is limited to situations of international armed conflict.” The newly established international criminal tribunals were therefore faced with seemingly insurmountable difficulties when tasked with delivering criminal judgments on the horrendous atrocities that occurred in the 1990s in Rwanda and the former Yugoslavia. Due to the scarcity of available legal material it is understandable that judges must have felt that they were “thrown in at the deep end”, lacking the tools necessary to fulfill their task of applying norms that are “beyond doubt part of customary international law”. Moreover, international criminal tribunals deal with large-scale atrocities that are exposed to public expectations and pressure. From this perspective, it is perfectly understandable that international criminal judges are tempted not only to adjudicate upon the existing law—thereby acting in conformity with fundamental principles of criminal law—but also to adjudicate upon the law as it should be, mixing de lege ferenda with de lege lata. In these difficult surroundings the question arises of the role given to judges: the application of law as it is, or the creation of law.
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Notes
- 1.
M. Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise, in Darcy, Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (2010), 187.
- 2.
See e.g. Israeli Supreme Court, Eichmann Case, 277; French Court de Cassation, Barbie Case, 125. See in that regard also ECtHR, Kononov v. Latvia, Application No. 36376/04, Judgment, 17 May 2010, para 208.
- 3.
Preliminary Remarks of the ICRC, 25 March 1993 as cited by C. Greenwood, The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia, 2 Max Planck Yearbook of United Nations Law (1998), 131.
- 4.
See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc S/25704), para 34 (SG Report on ICTY).
- 5.
In its Custom Study the ICRC also concluded that “[i]t appears that international courts and tribunals on occasion conclude that a rule of customary international law exists when that rule is a desirable one for international peace and security or for the protection of the human person, provided that there is no important contrary opinio juris.” See J.-M. Henckaerts, Customary International Humanitarian Law (2005) (ICRC Custom Study), Vol. I: Rules, xlii.
- 6.
A position contrary to a legislative role of judges has been taken by Judge Li in his separate opinion to ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 13, determining that the ICTY Appeals Chamber in that decision acted under “an unwarranted assumption of legislative power which has never been given to this Tribunal by any authority.”
- 7.
C. de Secondat, Baron de Montesquieu, De l’Esprit des lois. Livre XI, Chapitre 6 (1748), Chapitre 6.
- 8.
R. Y. Jennings, General Course on Principles of International Law, 121 Recueil des Cours (1967), 341.
- 9.
R. Y. Jennings, The Judiciary, National and International and the Development of International Law, 45 International Comparative Law Quarterly (1996), 3: “Judges, whether national or international, are not empowered to make new laws. Of course we all know that interpretation does, and indeed should, have a creative element in adapting rules to new situations and needs, and therefore also in developing it even to an extent that might be regarded as changing it. Nevertheless, the principle that judges are not empowered to make new law is a basic principle of the process of adjudication. Any modification and development must be seen to be within the parameters of permissible interpretation. For otherwise judges lose their ultimate source of authority.”
- 10.
ICJ, South West Africa Cases (Ethiopia and Libera v. South Africa), Judgment, 18 July 1966, ICJ Reports (1966), paras 49–50.
- 11.
C.f. D. Robinson, The Identity Crisis of International Criminal Law, 21 Leiden Journal of International Law (2008), 944f; see also A. Nollkaemper, The Legitimacy of International Law in the Case Law of the International Criminal Tribunal for the Former Yugoslavia, in Vandamme/Reestman (eds.), Ambiguity in the Rule of Law (2001), 18, characterizing the approach of the ICTY to the determination of law as “quintessentially teleological”.
- 12.
As demanded by the SG Report on ICTY (supra note 4), para 34 and affirmed by the jurisprudence of the ICTY: see for instance, Tadić Appeals Chamber Judgment, para 662, Blaškić Appeals Judgment, para. 114; ICTY, Delalić Trial Judgment, paras. 415–18.
- 13.
T. Meron, Editorial Comment, Revival of Customary Humanitarian Law, 99 American Journal of International Law (2005), 825.
- 14.
ICTY, Delalić Appeals Judgment, para 173 (emphasis added); see also Aleksovski Appeals Judgment, para 126.
- 15.
ICTY, Ojdanić Appeals Chamber Decision, para 38 (emphasis added).
- 16.
M. Shahabuddeen, International Criminal Justice at the Yugoslav Tribunal, A Judge’s Recollection (2012), 72–73, referring to the ECtHR, X Ltd and Y v. the United Kingdom, Application No 8710/79, Judgment, 7 May 1982, para 9 and ECtHR, CR v. the United Kingdom, para 34; see also M. Shahabuddeen, Does the Principle of Legality Stand in the Way of Progressive Development of Law?, 2 Journal of International Criminal Justice (2004), 1007ff. A similar position is taken by A. Cassese International Criminal Law (2008), 45f, who considers that an “evolutive adaptation” of international criminal law is permissible if it is in line with “the essence of the offence”, it confirms to fundamental principles of ICL, and is reasonably foreseeable.
- 17.
See ECtHR, CR v. the United Kingdom, para 41, note, however, that the ECtHR seemingly also referred to the malum in se argument referring to the “manifest debasing character of rape” (para 42); see also ECtHR, SW v. the United Kingdom, Application No. 20166/92, Judgment, 22 November 1995, para 43; These two cases before the ECtHR, both dealing with the question of marital immunity for rape, were considered on the same day by a single chamber. K. S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009), 222–3, is critical of these cases of the ECtHR as it overly broadens the concept of foreseeability.
- 18.
See the references in supra note above.
- 19.
Meron (supra note 13), 826, rightly criticized such a generous interpretation of progressive development of ICL demonstrating that there is a “difference between removing personal immunity for liability for an obviously criminal act and extrapolating from it a theory of evolution and ex post facto application of criminal liability for acts that were not unlawful at the time of their commission.”
- 20.
ECtHR, CR v. the United Kingdom, paras 39–40. Even the husband admitted that if not for the marital immunity his acts constituted the crime of rape, of which he could be convicted.
- 21.
ECtHR, CR v. the United Kingdom, para 41.
- 22.
See further A. Cassese, International Criminal Law (2013), 32.
- 23.
Jennings (supra note 8), 341.
- 24.
ICTY, Ojdanić Appeals Chamber Decision, para 38.
- 25.
See Sect. 3.10, The Guarantees of the Nullum Crimen Sine Lege Principle in International Criminal Law: The Principle of Nullum Crimen Sine Iure.
- 26.
ICTY, Delalić Trial Judgment, para 601: “the Prosecution is bound in law to prove the case alleged against the accused beyond a reasonable doubt. At the conclusion of the case the accused is entitled to the benefit of the doubt as to whether the offence has been proved.”
- 27.
ICTY, Stakić Trial Judgment, para 416: “The Trial Chamber explicitly distances itself from the Defence submission that the principle in dubio pro reo should apply as a principle for the interpretation of the substantive criminal law of the Statute. As this principle is applicable to findings of fact and not of law, the Trial Chamber has not taken it into account in its interpretation of the law.” See also the partially dissenting and separate opinion and declaration of Judge Schomburg to Prosecutor v. Limaj et al, IT-03-66-A, Appeals Chamber, Judgment, 27 September 2007, paras 15ff.
- 28.
ICTY, Delalić Trial Judgment, para 413; Declaration of Judge Shahabuddeen to Limaj Appeals Judgment, paras 2ff; see also G. Mettraux, International Crimes and the ad hoc Tribunals (2005), 226, proposing “the application of the general principle of criminal law that where there is a doubt in the interpretation of the law, that doubt should always be interpreted in favour of the accused (in dubio pro reo)”. Due to conflicting jurisprudence in that regard Robinson (supra note 11), 934 (footnote 37), considers that it is yet undecided in ICL whether the principle can be used for both questions of fact and of law.
- 29.
Partially dissenting and separate opinion and declaration of Judge Schomburg to Limaj Appeals Judgment, para 20 (emphasis added).
- 30.
Meron (supra note 13), 823 calling such a solution ‘outcome conservatism’.
- 31.
ECCC, Pre-Trial Chamber, Public Decision on Appeals by Nuon Chea and Ieng Thirith against the Closing Order, para 144, holding it necessary to include an armed conflict nexus requirement to crimes against humanity therewith an individual before the ECCC could be convicted for crimes against humanity. However, in subsequent decisions both the Trial Chambers and the Appeals Chamber have denied that such ambiguity existed and did not require an armed nexus requirement to crimes against humanity under customary international law; see ECCC, Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement from the Definition of Crimes Against Humanity, Trial Chamber, Case No. 002/10-09-2007/ECCC/TC, 26 October 2011 (ECCC Trial Chamber Decision Armed Conflict Nexus Requirement); see also Duch Trial Judgment, para 291; Duch Appeals Judgment, paras 106ff.
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Rauter, T. (2017). The Role of Judges When Determining Customary International Law. In: Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege. Springer, Cham. https://doi.org/10.1007/978-3-319-64477-6_5
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