Abstract
Through the analysis of the ICC’s procedural jurisprudence related to Article 21(1)(c) of the ICC Statute, this article examines how the ICC has used domestic laws. To fill a legal gap in its instruments, the ICC “shall apply […] 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” (Article 21(1)(c)). The ICC has not directly applied specific domestic laws. Instead, it has used domestic procedural legal sources to derive general principles of law as a subsidiary applicable legal source and mainly when the ICC’s Judges are trying to fill legal gaps in the ICC’s legal instruments based on comparative law approaches. Thus, the present article shows how outdated the idea of domestic law as a fact has become, and the variety of functions domestic law plays currently in international courts and for international adjudicators.
1 Introduction: General Framework
The procedure of the International Criminal Court (ICC) combines and adapts many elements from domestic legal traditions: common law with its adversarial approach to criminal procedure, and civil law with its inquisitorial model. The “adversarial” and “inquisitorial” dichotomy is primarily employed as this article examines procedural law and because some civil law countries have adopted adversarial proceedings. The adversarial tradition presents passive judges, strict evidentiary rules, and dominant parties.1 The inquisitorial tradition has elements such as active judges, more relaxed evidentiary rules, and less dominant parties.2 While international criminal procedure has been traditionally or predominantly adversarial-oriented,3 ICC procedure has incorporated many inquisitorial elements.4 Yet, ICC procedure remains predominantly adversarial in diverse aspects.5 This mixture of adversarial and inquisitorial elements and their adaptation to the ICC mandate have led to mixed aspects in international criminal procedure.6 In fact, most authors consider ICC procedure as unique or mixed.7
This article aims to contribute towards the scholarship on Article 21(1)(c) (“Applicable law”) of the ICC Statute, which concerns General Principles of Law Derived from National Laws (GPLDNL) worldwide as subsidiary applicable law, thus, it arguably constitutes the most recent academic piece examining the ICC’s procedural practice on the said normative provision. The innovative features of the present article are included in the following four paragraphs.
Academics have studied how the ICC makes international (criminal) law8 or how domestic legal traditions have influenced ICC procedure9 and/or some authors have examined partially or indirectly how the ICC has engaged with domestic law in general.10 However, there is much less specific analysis of how the ICC has used domestic procedural law.
In light of this Symposium, the main research question of this article is how the ICC has used or engaged with domestic legal sources. It shows how outdated has become the idea of domestic law as a fact, that is, the Permanent Court of International Justice (PCIJ)’s classic position,11 and what variety of functions domestic law plays in international (criminal) courts, in particular the gap-filling function. This research question has been underexplored or (partially) neglected in the academic literature.
To answer this question, this article analyses the ICC’s procedural practice when using or dealing with domestic legal sources, focusing on general principles of law derived by the ICC from national laws worldwide as subsidiary applicable law (Article 21(1)(c)). The focus on procedural law is an additional feature distinguishing the present piece from generalist publications on Article 21(1)(c).
This article aims to show how comparative domestic law may become part of the law that is applicable by the ICC, which (recent) literature has not properly examined concerning the ICC’s procedural practice on Article 21(1)(c). Engagement with domestic law herein means the ICC’s use of domestic law sources of diverse systems worldwide to derive a general legal principle as a subsidiary applicable legal source under Article 21(1)(c). The broader context of Article 21(1)(c) as an interpretative tool to fill normative gaps is also taken into account herein, whereas it has not necessarily been considered by other publications.
The ICC’s procedural practice on Article 21(1)(c) has engaged with domestic legal sources, reflecting comparative perspectives. When the ICC instruments (ICC Statute, Rules of Procedure and Evidence (ICC Rules), etc.) and/or applicable treaties/customary international law rules provide no legal answer, the ICC under Article 21(1)(c) “shall apply […] 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”.12 Thus, the ICC Statute does not enable the ICC to apply directly or automatically a specific domestic law. The ICC’s procedural practice shows that the ICC has not directly applied a specific domestic law.13 Yet, the ICC’s procedural practice demonstrates that domestic laws from different legal traditions play an important role in the ICC’s adjudicatory practice. When necessary, the ICC has used legal sources from both the adversarial and inquisitorial models to derive and apply general legal principles in deciding procedural matters.
As its procedural practice evidences,14 the ICC normally adopts a comparative approach to national laws to distil and apply GPLDNL rather than to directly apply specific domestic laws. Such an exercise is especially important to further develop international criminal procedure largely based on principles and common rules from both the adversarial and inquisitorial models but adapted to the ICC’s mandate. Where the ICC Statute/ICC instruments have provided no answer to a procedural problem or, to some extent, such an answer was (very) ambiguous, the ICC has paid close attention to national legal sources to derive applicable general principles of law.15 Overall, the ICC has thus relied on general principles found in diverse domestic legal traditions.
Therefore, the ICC’s procedural practice as it relates to Article 21(1)(c) has engaged with domestic law concerning procedural matters. Unlike areas such as international investment law, the ICC’s procedural law and practice show that the ICC does not directly apply national laws. Under Article 21(1)(c), however, the ICC has conducted comparative surveys of domestic legal sources to derive general legal principles common to domestic legal systems worldwide and apply them as a subsidiary legal source. The ICC’s procedural practice arguably shows that international adjudicatory bodies are not merely limited to finding domestic law passively by only treating it as fact but, instead, these bodies can creatively engage with national legal sources within the limits and nature of their respective mandates.16 To a greater or lesser extent, international adjudicatory bodies have treated domestic law as law rather than only fact,17 despite the traditional maxim of treating domestic law as fact.18
Thus, the ICC has considered legal sources beyond the procedural law contained in the ICC instruments. This judicial exercise complements and is consistent with the ICC procedural framework that combines and adapts different national legal traditions. Concerning how international adjudicators engage with domestic law, the ICC’s procedural practice relating to Article 21(1)(c) has primarily done so through comparative law methods to a varying degree. Moreover, this article via an analysis of the ICC’s procedural practice on Article 21(1)(c) can contribute to demonstrating one hypothesis of the present special issue: domestic law has multiple functions in relation to international adjudication. The comparative law literature has recognized three main reasons or functions for which judges refer to the laws of other jurisdictions: a gap-filling function (praeter legem); for an interpretation of the law (secundum legem); and for correcting the law (contra legem).19 The ICC’s procedural practice related to Article 21(1)(c) has arguably followed the comparative law methodology, primarily corresponding to the gap-filling function. Thus, this article mainly focuses on that function.
This article does not examine all instances of the ICC’s engagement with GPLDNL. Instead, it focuses on specific instances of ICC practice (see, especially, the examples in Section 5). First, this article focuses on the ICC’s procedural practice; in other words, the use of GPLDNL concerning its substantive law practice is not examined. Second, while consideration of all instances of the ICC’s procedural practice engaging with GPLDNL could provide more solid bases for conclusions, the seven examples examined in detail are representative of the relevant practice. Thus, the conclusions are based on a strong representative sampling of the said procedural practice. Third, by focusing on seven examples rather than covering all the instances of ICC procedural practice, this article presents and discusses exactly how the ICC has invoked and used GPLDNL in procedural matters rather than just providing superficial references to all procedural instances. Finally, due to the theme of this Symposium and the maximum length allowed, it is necessary to zoom into examples that best reflect the aims of the Symposium.
Additionally, the examples of the ICC’s procedural practice examined in depth here were selected for analysis based on twofold criteria. First, they are highly relevant concerning the main objectives and research questions of the Symposium. Moreover, this corresponds to the article’s main research question. Secondly, the examples selected have in common, inter alia, and to a greater or lesser extent, the scenario whereby the ICC Judges comprehensively discussed national legal sources to try to derive general principles of law rather than just including marginal references to general principles of law. This explains why other authors have also discussed most of these examples.
Section 2 analyses the broader context of GPLDNL as an interpretative tool at the ICC, namely, alongside other judicial gap-filling tools (e.g., implied powers and the Regulations of the Court (RoC)). Through an examination of the ICC’s jurisprudence, normative provisions, and doctrine, Section 3 discusses the key bases of adjudication of domestic legal sources under Article 21(1)(c). Section 4 studies how the ICC’s procedural practice has used Article 21(1)(c) to derive/distil general legal principles. Section 5 provides examples of how the ICC has used national legal sources to distil applicable general legal principles in procedural issues. Section 6 provides an overall analysis.
2 The Broader Context of the GPLDNL at the ICC
While this article focuses on the specific role of Article 21(1)(c) in procedural law-making, this section looks at the use of GPLDNL as an interpretative tool more generally. This means including considerations on using GPLDNL in the context of or vis-à-vis the ICC’s inherent powers and RoC, which may enrich the analysis of how procedural gap-filling is achieved at the ICC. Due to the (still) underdeveloped character of certain areas of international criminal procedure, alongside the aforementioned other two means, general principles can play an important role for interpretation and gap-filling purposes, avoiding a non liquet or assisting in interpretation, which contributes towards further developing the ICC’s procedural law.20
Unlike at the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the Assembly of States Parties to the ICC Statute (instead of the ICC Judges) has been the main body responsible for the crafting and evolution of the ICC Rules. While State control over amendments to the ICC Rules has aimed to constrain judicial creativity, there is still room for judicial gap-filling on procedural questions. Although Article 21(1)(c) in procedural matters has received relatively limited use, it constitutes a useful tool for fulfilling the gap-filling function.
The ICC’s practice demonstrates that other procedural gap-filling methods have been invoked; first of all, procedural gap-filling via the use of “inherent powers”. Yet, since the ICC’s procedural normative regime is much more elaborate than that of the ICTY/ICTR, general principles of law in the context of and/or besides judicial inherent powers have been applied less often by the ICC.21 Compared to the use of general principles of law in the context of the ICTY’s/ICTR’s inherent powers,22 the ICC has not been as “creative” as the ICTY/ICTR.23 Besides the frequent judicial amendment of the ICTY/ICTR Rules, the constant reference to their inherent powers by these tribunals constituted a factor relied on by the ICC States Parties to adopt well-detailed Rules.24
Whereas the use of inherent powers occurs when the judicial bench considers it necessary to exercise a power that the respective international court’s normative framework does not explicitly establish,25 the identification of the specific source of such power has usually been elusive or has simply been regarded as a result of the judicial function.26 Invoking inherent powers normally has been linked with an identifiable general principle of law.27 Nevertheless, such powers are equivalent to an ethereal and open-ended source of procedural rules, which demand that reliance on inherent powers should be balanced against the interests of justice and the right of the accused to avoid judicial arbitrariness.28
The above-mentioned considerations have determined that the ICC’s procedural practice, as compared to the ICTY’s/ICTR’s practice, generally has been reluctant to apply inherent powers to fill procedural gaps.29 For instance, the ICC has temporarily discontinued proceedings on abuse of process grounds, relying not on its inherent powers but, instead, referring to interpreting the ICC’s normative framework consistently with international human rights law under Article 21(3).30
As another example, a Trial Chamber (TCh) determined that the ICC only can restrictively invoke inherent powers in its proceedings “governed by an extensive legal framework of instruments in which the States Parties have spelt out the powers of the Court to a great detail”.31 Finally, on whether a Trial Chamber can compel witnesses to appear before the Court, the ICC Appeals Chamber (ACh) dismissed the use of implied powers, which the Trial Chamber had regarded to be a general principle,32 or the use of references to principles of (customary) international criminal procedural law because the “Court’s legal framework provides for a conclusive legal basis […] pursuant to article 21(1) […] recourse to other sources of law is possible only if there is a lacuna in the Statute or Rules”.33
Conversely, e.g., a Pre-Trial Chamber (PTCh) invoked its inherent power to inform the Security Council concerning the lack of cooperation of States not Parties to the ICC Statute, but it provided no further analysis.34 Moreover, the Trial Chamber in Ruto and Sang used implied powers subsidiarily and supportively for the subpoena ordering the appearance of witnesses before the ICC.35 As commented on above, however, the Appeals Chamber found it to be incorrect.
However, the Trial Chamber in Ruto and Sang stated that GPLDNL under Article 21(1)(c), especially from States connected to the case, constitute a basis for compelling the appearance of a witness for criminal trial purposes before an (international) criminal court,36 noting the importance of the International Court of Justice (ICJ)’s judgments on incidental/implied powers.37 The Chamber considered that the implied powers of international organizations is a general principle of international law,38 and such powers were codified in Article 4(1) of the ICC Statute “out of abundance of caution”.39 Furthermore, the implied powers doctrine was invoked concerning a Trial Chamber’s decision on defence applications for judgments of acquittal (Judge Eboe-Osuji’s reasons) that ended up terminating the Ruto and Sang case.40
Finally, regarding procedural matters and the ICC’s jurisdiction, Pre-Trial Chamber I found that there is an international law principle whereby any international court is empowered to determine the extent of its jurisdiction: la compétence de la compétence.41 The Chamber invoked the case law of the ICJ and other international adjudicative bodies, such as the ICTY, Inter-American Court of Human Rights, and Special Tribunal for Lebanon.42 However, Judge Perrin de Brichambaut’s partial dissent found that a lacuna in this case does not “warrant recourse to the principle of la compétence de la compétence” due to the subsidiary nature of the sources contained in Article 21(1)(b)/(c).43
As mentioned above, other procedural gap-filling means have been implemented via the drafting of, the augmentation of, and/or amendments to the RoC, for which the ICC Judges are exclusively responsible. Thus, the ICC States Parties did not necessarily envisage the level of procedural relevance later obtained by the RoC. Under Article 52 of the ICC Statute, “The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning”. These Regulations exploited the lack of a clear demarcation of what is a rule needed for the ICC’s routine internal work, incorporating a good deal of provisions that could have been part of the Rules of Procedure and Evidence.44 The Appeals Chamber found that the RoC included several key provisions affecting the rights of the accused, including those about detention and the scope of legal assistance financed by the ICC.45
In ICC practice, Regulation 55 crafted by the judiciary to grant itself the power to “modify the legal characterization of the facts” has been regarded as the most controversial because the Trial Chamber is provided with the power to adjust the Prosecution’s case substantially.46 By invoking Regulation 55, the Trial Chamber, for example, recharacterized the type of armed conflict,47 which the Appeals Chamber however rejected based on the silence of Regulation 55 about the judiciary’s power to change the legal characterization proprio motu.48 In another case, the Trial Chamber (through Regulation 55) sought to recharacterize the criminal liability mode in a late stage (deliberations stage),49 prompting a dissenting vote.50 Some commentators have criticized Regulation 55 for being ultra vires and inconsistent with the ICC Statute.51
Although the rule-making power of ICC Judges is confined to the Regulations, they still maintain their capacity to develop procedural rules as they are the main actors entrusted with the interpretation and application of norms, in addition to the detailed Rules being subject to judicial interpretation and application.52 While the drafters of the ICC Statute intentionally left procedural law-making to the States Parties leading to what has been regarded as an insufficiently dynamic procedural law,53 the constructive ambiguity of several procedural provisions underlies how important it is that the ICC Judges fill procedural gaps soundly.54
3 GPLDNL as Subsidiary Applicable Law at the ICC
Article 21(1)(c) enables the ICC to apply, in a subsidiary manner, general legal principles derived by the Court from domestic legal systems worldwide. Under Article 21, the ICC shall apply such general legal principles when the ICC instruments (Article 21(1)(a)) and applicable international treaties, international law principles, and customary international rules (Article 21(1)(b)) fail to provide an answer. In this situation and under Article 21(1)(c), the ICC:
shall apply […] 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 inconsistent with this Statute and with international law and internationally recognized norms and standards.
As certain commentators have remarked,55 the ICC has established that the application of Article 21(1)(b)/(c) is subject to the existence of a gap in the ICC Statute/ICC instruments: “whether the Statute and Rules of Procedure and Evidence leave room for its application within the framework of the Court’s process”.56 In rejecting a Prosecutor’s motion about the existence of a lacuna concerning the right to appeal against first-instance judicial decisions, the Appeals Chamber has indicated that “No gap is noticeable in the Statute with regard to the power claimed in the sense of an objective not being given effect to by its provisions. The lacuna postulated by the Prosecutor is inexistent”.57 Bitti has suggested that a gap in the ICC Statute and ICC instruments may be an “objective” that can be inferred from the ICC Statute’s context or object and purpose and that “an objective which would not be given effect by the express provisions of the Statute or the Rules, thus obliging the judge to resort to the second or third source of law – in that order – to give effect to that objective”.58 Thus, Article 21(1)(c) as a subsidiary legal source cannot be employed just to incorporate additional procedural features to those included in the ICC Statute and ICC Rules.59
Importantly, the ICC has determined that:
according to article 21(l)(a) […] the Court must apply ‘in the first place’ the Statute, the Elements of Crimes and the Rules […] those other sources of law provided for in paragraphs (l)(b) and (l)(c) of article 21 […] can only be applied when the following two conditions are met: (i) there is a lacuna in the written law contained in the Statute, the Elements of Crimes and the Rules; and (ii) such lacuna cannot be filled by the application of the criteria provided for in articles 31 and 32 of the Vienna Convention on the Law of the Treaties and article 21(3).60
Under Article 21(1)(c), thus, GPLDNL are a subsidiary legal source applicable by the ICC61 based on comparative law.62 Due to their subsidiary nature, these principles play primarily an important gap-filling function in the ICC and other international/hybrid criminal tribunals’ (ICTs) jurisprudence as well as, to some extent, serving an interpretative function.63 Certain scholars64 indicate (and some of the ICC practice65 arguably suggests) that the sources listed in Article 21 are helpful to the ICC when interpreting its Statute in practice. Additionally, Article 21(1)(c) and Article 21(1) as a whole contain a method of establishing general principles of law. Powderly has remarked that: “Article 21(1) appears to institute a predetermined, mechanical approach to the resolution of statutory gaps” that differs from “Article 38 of the Statute of the ICJ, which merely establishes the sources of law and not their means of interpretation or application”.66
The reference to “the national laws of States that would normally exercise jurisdiction over the crime” contained in Article 21(1)(c) constituted a compromise formula between two positions during the negotiation and adoption of the ICC Statute.67 While most States argued that “general principles” should be entirely separated from any reference to a specific national system, a substantial minority sustained that the ICC should apply domestic laws directly.68 In principle, it may be difficult to think of a case where it could be “appropriate” for the ICC to rely on one specific national law to the exclusion of all others.69
Indeed, the ICC has been generally reluctant to use or engage with the national law of the State that would normally exercise jurisdiction.70 For instance, the Appeals Chamber in Muthaura et al., a Kenya-related case, rejected the defendants’ request for an oral hearing based on Kenyan law.71 The Chamber noted that: i) Article 21(1)(c) grants the ICC the “power to apply general principles of law, derived from national laws, but not to apply national laws directly”; ii) Article 21(1)(c) is a subsidiary legal source to resort to if Article 21(1)(a)/(b) legal sources “do not regulate the issue at hand”; and iii) the words “as appropriate” included in Article 21(1)(c) indicate that this provision vests the ICC “with discretion to derive such general principles also from the national laws of States that would normally exercise jurisdiction over the crime, but does not require the Court to do so”.72 In Bemba et al. (Situation in the Democratic Republic of Congo (DRC)), the Appeals Chamber reaffirmed that although the ICC under Article 21(1)(c) “can apply (exclusively as a subsidiary source of law) ‘general principles derived by the Court from national laws of legal systems of the world’ no particular national law constitutes part of the applicable law under article 21”.73
The ICTY/ICTR Statutes contain no provision like Article 21(1)(c). However, these ICTs have invoked domestic legal sources to distil general legal principles to mainly fill gaps in their instruments in the same manner as it has been done by the ICC.74 Overall, the application of GPLDNL at the ICC has been less flexible than that at the ICTY/ICTR because of the very detailed and numerous procedural rules contained in the ICC Statute/ICC Rules.75
In some instances, the ICC has engaged or interacted with a specific State’s procedural law. Although this form of engagement with domestic law exceeds this article’s scope, it is discussed briefly herein through two examples to contrast it with the Article 21(1)(c) jurisprudence. Under Article 93(1)(l) of the ICC Statute, ICC States Parties shall provide “Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court”.76 In Ruto and Sang, the Chamber analysed “Whether a request to Kenya to compel the appearance of a witness is prohibited by Kenyan law or by the Rome Statute operating as part of the laws of Kenya”,77 which meant that the ICC examined Kenya’s International Crimes Act and Kenya’s Constitution.78 However, the ICC did not apply these national legal sources.79 In Lubanga, the Pre-Trial Chamber invoked Article 69(8) of the ICC Statute, under which “[w]hen deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State’s national law”,80 to note that a Congolese court’s decision was based not on international human rights treaties but instead on a violation of the Congolese Criminal Procedure Code.81 Yet, the Court did not apply national Congolese legal sources.
Thus, these two examples may illustrate the ICC’s incidental jurisdiction, namely, the resolution of the main international law question over which the ICC has jurisdiction requires an assessment of a preliminary or incidental question ruled by domestic law.82 Nonetheless, the ICC cannot apply directly national (procedural) law.83
Applicable law at the ICC
Citation: The Law & Practice of International Courts and Tribunals 23, 1 (2024) ; 10.1163/15718034-bja10109
4 Deriving General Principles of Law from National Laws at the ICC
While some authors directly relate Article 21(1)(c) of the ICC Statute to Article 38(1)(c) of the ICJ Statute (“general principles of law recognized by civilized nations”),84 most scholars (such as Cassese) have mainly situated Article 21(1)(c) in the comparative law context.85 As Schabas notes, Article 21(1)(c) constitutes an “invitation to consult comparative criminal law as a subsidiary source of norms”, including “national practice as a source of general principles”.86 Article 21(1)(c) lays down that “general principles of law” cannot be inconsistent with international law and, thus, Article 21(1)(c)’s “general principles of law” stem from comparative law and their coherence is precisely tested in light of international law.87 Article 21(1)(c)’s “principles” would not logically encompass Article 38(1)(c)’s “general principles”.88 Unlike the ICJ, the ICC is a criminal court and, hence, it also relies on comparative criminal law. The ICTY actually differentiated “general principles of international criminal law”/“general principles of international law” from “principles of criminal law common to the major legal systems of the world”,89 which respectively correspond to Article 21(1)(b)’s “principles” and Article 21(1)(c)’s “general principles of law”. Hence, Article 21(1)(c) arguably refers to “general principles” mainly in the context of comparative criminal law.
Article 21(1)(c) explicitly mentions “national laws of States that would normally exercise jurisdiction over the crime” and requires that the said “general principles of law” be consistent with the ICC Statute and international law. National jurisprudence can be considered as a subsidiary legal source to distil a general principle of law from national legal sources and/or demonstrate the existence of a general principle of law derived from national systems, provided that such jurisprudence is consistent with the ICC Statute and international law.90
To establish a “general principle of law”, the ICC, other international (criminal) tribunals, and international adjudicative bodies should not refer to only one or a few national systems, but they must draw upon general concepts and legal institutions common to them, pinpointing “the basic notions they share”.91 Thus, mechanical or automatic importations from national law into the ICC should be avoided.
In agreement with Raimondo, Article 21(1)(c) contains four requirements or conditions for applying GPLDNL.92 These conditions arguably provide important methodological guidelines on how the ICC should interpret and apply Article 21(1)(c).93 The first requirement comprises subsidiarity, namely, Article 21(1)(c) applies only when Article 21(1)(a)/(b) legal sources fail to provide the answer, namely, GPLDNL are mainly designed to be gap-fillers.94 Additionally, the ICC arguably may to some extent use them for strengthening legal reasoning and interpretation of ICC instruments95 if those instruments’ provisions are (very) ambiguous. A second condition consists of abstraction, namely, the ICC needs to abstract or derive principles from national legal rules rather than apply specific national legal rules, which corresponds to the traditional methodology for determining GPLDNL.96 As, mutatis mutandis, the ICC has proceeded (as will be illustrated later), the ICTY used national law to identify general principles via two sequential steps: abstracting legal rules from national systems to derive an underlying principle; and comparing domestic legal systems to verify that the generality of nations recognised the principle identified in the first step.97
Third, one can refer to the requirement of representativeness, namely, the legal principle in question needs to be generally recognised in domestic legal systems worldwide to be a general principle of law “derived from national laws of the legal systems of the world”.98 Yet, regarding methodological guidance for the ICC’s criteria to select national laws, the only reference is “as appropriate, the national laws of States that would normally exercise jurisdiction over the crime”. Similar to the ICC’s procedural practice on Article 21(1)(c) (as also illustrated later), the ICTY/ICTR mainly invoked domestic legal sources from the same group of a few common law and civil law countries in order to distil general principles.99 Not all the world’s legal systems have to accept an applicable general principle of law;100 however, there is a need for evidence demonstrating that a representative majority, including the world’s main legal systems, applies such a principle.101 This requires the ICC Judges to conduct a comparative law analysis, while at the same time maintaining a broad discretion to select the specific national laws to consider in such an analysis.102 Finally, a fourth requirement would be consistency, namely, GPLDNL worldwide must be compatible with the ICC Statute, international law, and internationally recognised standards/norms,103 which Article 21(1)(c) lays down in fine.
The ICC Appeals Chamber has emphasised that the “Court may only base its determinations on its own sources of law under article 21 of the Statute, which do not include national laws”.104 As the Chamber has found, although the ICC can under Article 21(1)(c) “apply (exclusively as a subsidiary source of law) ‘general principles derived by the Court from national laws of legal systems of the world’, no particular national law constitutes part of the applicable law under article 21”.105 In turn, the Pre-Trial Chamber determined that:
national case law can only constitute a subsidiary source of law before this Court, insofar as it shows the existence of a general principle of law that can be derived from ‘national laws of legal systems of the world’ and is not inconsistent with the Statute and with international law and internationally recognized norms and standards.106
ICC Chambers have remarked that: “the Court is not bound by the decisions of national courts on evidentiary matters”;107 Article 21(1)(c) does not authorize the application of national laws directly;108 and Article 21(1)(c) only gives the ICC discretion “to derive such general principles also from the national laws of States that would normally exercise jurisdiction over the crime, but does not require the Court to do so”.109 Trial Chamber V(a) adopted a broader approach by stating that “general principles of international law – including those derived from national laws, pursuant to article 21(1)(c) […] – offer a basis to place an ICC-TCh in an analogous position as a domestic criminal court”.110 Nevertheless, in concordance with Bitti, such affirmation is at odds with the situation whereby “the drafters of the Statute were not willing to place the ICC in an analogous position to national courts”.111 Thus, Article 21(1)(c) applies if the ICC Statute/ICC instruments present a gap.112 Unlike what Trial Chamber V(a) stated,113 Article 21(1)(c), namely GPLDNL, should not overall be applied simply to “augment” the ICC Statute.
The ICC Appeals Chamber has remarked that the “Court has its own legal framework”, which in principle “cannot be replaced by the practice of other courts and tribunals”.114 The Chamber once criticized the Prosecutor’s direct and automatic reliance on jurisprudence from only one domestic jurisdiction (United States) and found that the Prosecutor should have argued that: “article 21(1)(c) […] is applicable in the current circumstances”; and “the case law presented should be interpreted as founding a general principle of law ‘derived by the Court from national laws of legal systems of the world’ within the meaning of that article”.115 As Bitti highlighted, such a finding by the Appeals Chamber evidences that external legal sources such as general legal principles derived by the ICC from national laws, including domestic laws of States that would normally exercise jurisdiction (ICC Statute, Article 21(1)(c)), have been used subsidiarily by ICC Chambers.116
By invoking Article 21(1)(c), the Pre-Trial Chamber has observed that, when Article 21(1)(a) (ICC instruments) and 21(1)(b) (relevant international treaties, international custom, etc.) are not applicable, the Court “shall apply general principles of law derived by the Court from national laws”, but the Chamber added that this does not mean that the ICC is “bound by the decisions of national courts on evidentiary matters”.117 The Chamber found that a national court’s decision adopted under domestic law, which determined the unlawfulness of the search and seizure of evidence carried out by domestic authorities and later handed in to the ICC, “cannot be considered binding on the Court”.118
Former ICC Judge Fulford in a separate opinion remarked that, even if the national and ICC provisions “mirror each other in their formulation”, the application of a national statutory interpretation would be dangerous due to (very) different overall contexts.119 When determining the existence of a GPLDNL, the ICC has considered whether the practice corresponding to different countries is consistent.120 The ICC has pointed out that this becomes apparent when one national practice, among the domestic practices invoked, is seemingly opposed to the other ones.121 In a concurring opinion, former ICC Judge Van den Wyngaert remarked that “considering its universalist mission, the Court should refrain from relying on particular national models, however sophisticated they may be”.122
There has been some ICC procedural practice, such as that on trials in absentia at the ICC, in which ICC Chambers conducted a comparative analytical survey of national legal sources from adversarial and inquisitorial national systems mainly for interpretative purposes of applicable ICC Statute provisions (especially Article 63(1)).123 However, the Chambers did not indicate that they were (also) distilling an applicable general principle of law from national legal sources under Article 21(1)(c).
In commenting on Article 21(1)(c), Powderly noted that national laws cannot automatically be applied at the ICC.124 As he also highlights, general principles of law derived by the ICC from domestic practices, including “national laws of States that would normally exercise jurisdiction”, must be consistent with the ICC instruments, which “serves not only to reinforce the textual primacy of the Statute, Rules of Procedure and Evidence, and the Elements of Crimes, but also protects against a liberal invocation of paragraph (c) for creative purposes”.125 Moreover, scenarios in which “it would be ‘appropriate’ to rely on the national law of a specific state to the exclusion of all others” are uncommon at the ICC.126
When identifying a GPLDNL worldwide under Article 21(1)(c), the ICC Chambers have remarked the importance of referring to national systems corresponding to both common law and civil law.127 Regarding issues that clearly divide the adversarial and inquisitorial models/traditions, however, it may be very difficult to derive a general principle without affecting one tradition or without conducting a hegemonic or majoritarian exercise by favouring one or the other tradition, particularly the adversarial model that has traditionally prevailed at most ICTs.128 In finding GPLDNL, ICTs such as the ICC tend to be “biased” towards liberal criminal justice systems.129 This and issues of accessibility to sources and language result in the over-representation of certain national systems (mainly those of Europe and North America) when the ICC has to identify GPLDNL.130 Furthermore, a general principle of procedural law applicable to all nations may be a stretch.131 As Mégret remarks, however, ICTs such as the ICC “could, in certain circumstances, draw on more directly relevant domestic models in an effort to make international criminal law more directly fathomable locally”, particularly when selecting the interpretation that is more familiar to the accused.132
5 Domestic Legal Sources in the ICC Procedural Practice on Article 21(1)(c): Examples
This section provides examples of how the ICC has engaged with national laws/national legal sources concerning procedural matters under Article 21(1)(c). The first example corresponds to the judicial powers of ICC Judges. Due to a normative lacuna in the ICC Statute, the Prosecutor in the DRC Situation referred to Article 21(1)(c) to invoke a GPLDNL.133 This principle would entail the judicial review of decisions of hierarchically subordinate courts not permitting or disallowing an appeal.134 The Appeals Chamber examined domestic legal sources invoked by the Prosecutor: fourteen civil law countries, five common law countries, and three countries labelled as Islamic law systems.135 The Chamber found that: i) there were no uniform domestic rules across the civil law world; ii) comparisons between the common law systems invoked and ICC procedure were misleading concerning this specific procedural issue; and iii) there were no uniform rules among the other three national systems cited.136 Thus, the Chamber concluded that there is “nothing in the nature of a general principle of law […] entailing the review of decisions of hierarchically subordinate courts disallowing or not permitting an appeal”.137
The second example, also corresponding to judicial powers, concerns whether ICC Chambers can stay proceedings in cases of abuse of process. The ICC Appeals Chamber in Lubanga examined national legal sources from both adversarial and inquisitorial national systems, mainly concerning the potential existence of a legal gap in the ICC’s legal instruments and the feasibility of deriving a general principle of law that could be applicable as a subsidiary legal source under Article 21(1)(c).138 The Chamber considered that the doctrine of abuse of process is a principle present in many common law countries.139 It invoked the English Court of Appeal’s jurisprudence to remark that a stay of proceedings is a discretionary judicial power.140 Based on the jurisprudence of adversarial national systems (England and Wales, New Zealand, the United States, Canada, South Africa, Australia, Cyprus), the Chamber also found that a court has inherent jurisdiction to stay/dismiss a prosecution to prevent an abuse of process, and the respect for fair proceedings justifies the non-exercise of jurisdiction.141 Regarding inquisitorial national systems, the Chamber determined that the abuse of process doctrine as known in the English system “finds no application in the Romano-Germanic systems of law”.142 By invoking the jurisprudence of French courts and the German Constitutional Court, it noted that the rule male captus bene detentus (wrongly captured, properly detained) has been well received in France and Germany.143 Nevertheless, the Chamber invoked German jurisprudence to remark that the said rule is mitigated “where serious violations of the fundamental rights of the accused or international law are involved”.144
A third example concerns whether ICC Judges have the power to subpoena (summon) witnesses from a specific country. By relying on provisions of the ICC Statute, implied powers of international courts, and customary international criminal procedural law, Trial Chamber V(a) in Ruto and Sang preliminarily stated that the ICC can subpoena witnesses from Kenya to compel their testimony and related Kenya’s cooperation.145 The Chamber verified this preliminary conclusion by invoking a general legal principle derived from domestic laws under Article 21(1)(c), finding that “[s]ubpoena powers are an undoubted element of general principles of national law in the administration of criminal justice”.146 It invoked the accepted practice in international and national criminal procedural law to emphasise that any international/domestic criminal court has the “power to subpoena witnesses to appear for testimony”.147 It also considered that GPLDNL may “augment” the provisions of the ICC Statute/ICC instruments.148 However, as mentioned, this point is inconsistent with the ICC’s practice on Article 21(1)(c).
The fourth example concerns evidence admissibility. In Lubanga, a Congolese court dismissed items seized by Congolese authorities in the presence of an investigator from the ICC Office of the Prosecutor during a search because this national court found that such search breached the Congolese Criminal Procedure Code.149 ICC Pre-Trial Chamber I observed that, where Article 21(1)(a)/(b) of the ICC Statute does not apply ICC instruments, international treaties, etc., the ICC shall apply GPLDNL (Article 21(1)(c)).150 Yet, the Chamber remarked that national courts’ decisions on evidence do not bind the ICC and, thus, “that a Congolese court has ruled on the unlawfulness of the search and seizure conducted by the national authorities cannot be considered binding on the Court”.151
The fifth example involves witness proofing, which is the substantive preparation or coaching of witnesses before testimony. The ICC has examined national legal sources to determine whether a general principle of law allowing witness proofing can be derived from national legal systems worldwide under Article 21(1)(c). ICC Chambers have responded negatively to this question. Some scholars have criticised such rejection.152 However, most authors have welcomed it,153 based, inter alia, on the fact that a general principle allowing witness proofing could not be distilled from national laws corresponding to both adversarial and inquisitorial domestic systems.154 Instead, the ICC Chambers have accepted witness familiarisation with the courtroom and ICC procedure.
Since the first two tiers of applicable law (Article 21(1)(a), (b)) at the ICC have failed to provide an answer on the admissibility of witness proofing, in Lubanga, Pre-Trial Chamber I examined, as a subsidiary legal source, the third tier of applicable law at the ICC: GPLDNL (Article 21(1)(c)).155 The Chamber first invoked the jurisprudence of the Court of Appeal of England and Wales to explain the practice of witness familiarisation with judicial proceedings.156 It noted that the ICC Prosecutor’s definition of witness proofing was basically a witness’s rehearsal of his/her testimony.157 The Chamber examined whether the witness proofing components, as defined by the Prosecutor, can be considered part of the ICC’s applicable law under, inter alia, Article 21(1)(c).158 In answering the question of whether the Prosecutor’s definition of witness proofing can, under Article 21(1)(c), be encompassed by worldwide GPLDNL “including, as appropriate, the national laws of the […] the DRC […], the Chamber first observes that the Prosecution does not submit that such a practice is consistent with the DRC criminal procedure”.159
By invoking diverse domestic legal systems, the Chamber importantly remarked that national approaches to witness proofing vary widely.160 It found that the Prosecutor’s definition of witness proofing would be unethical or even unlawful in Brazil, Spain, France, Belgium, Germany, Scotland, Ghana, England and Wales, Australia, etc., while it is well-accepted in other domestic jurisdictions, such as the United States.161 The Chamber found that, unlike witness familiarisation, witness coaching/witness proofing “would be a direct breach of the very same standards, included in article 705 of the Code of Conduct of the Bar Council of England and Wales, that the Prosecution has expressly undertaken to be bound by”.162 Therefore, the Chamber denied witness proofing admissibility because: it is unethical/unlawful in several domestic jurisdictions; and it is not embraced by GPLDNL worldwide.163
Trial Chamber I noted in Lubanga that witness proofing must be settled by reference to Article 21’s applicable law sources.164 Under the subsidiary application of Article 21(1)(c), the Chamber invoked the domestic practices of Australia (New South Wales), United States (Los Angeles), Chile, and England and Wales to document and support the acceptance of witness familiarisation in national systems.165 It also examined the national practices of Australia, Canada, England and Wales, and the United States, invoked by the Prosecutor to demonstrate the existence of witness proofing across countries.166 The Chamber found that although they “provide some examples of the permissibility of contact between counsel and witnesses before trial”, “most do not directly deal with the substance of what that contact should entail”.167 Additionally, it remarked that, although Australian and Canadian practices seemingly support engaging in a sort of question/answer session with the witness before his/her testimony, “coaching witnesses or putting suggestions to them would not be permissible”.168 Thus, the Trial Chamber found that: i) no general principle of law allowing witness proofing can be derived from national legal systems worldwide; ii) the partial acceptance of witness proofing in some common law systems provides no sufficient basis to conclude that a general legal principle based on an established practice of domestic legal systems exists; and iii) the Prosecutor’s submissions made no reference to national jurisprudence from civil law countries.169
The last two examples correspond to the admissibility of trials in absentia at the ICC. First, Judge Eboe-Osuji’s single dissenting opinion in Kenyatta (2013) should be considered. Despite being a single opinion, it merits consideration due to its relevance concerning Article 21(1)(c). This contrasts with the lack of Article 21(1)(c)-related analysis in the Trial Chamber’s majority decision.170 In his dissenting opinion, Judge Eboe-Osuji remarked that trials in absentia are normally permitted in many civil law jurisdictions such as France, Italy, and Switzerland and common law national systems including England and Wales, the United States, Canada, Australia, and New Zealand.171 He thoroughly examined legal sources from adversarial national systems: i) national criminal procedure laws of Scotland, the United States, Canada, etc.; ii) jurisprudence of the highest/high courts of the United Kingdom, Australia, the United States, and New Zealand; and iii) soft-law sources of the American Law Institute.172 He found that a number of adversarial jurisdictions recognize trial in absentia discretion with regard to an absconding accused person and the judges “enjoy a clear discretion to commence and conclude the trial in the absence of the accused”.173 He concluded that the principal legal systems of the world recognize trial in absentia discretion for an absconding accused, and that such discretion constitutes a principle of international law under Article 38(1)(c) of the ICJ Statute; moreover, it applies at the ICC under Article 21(1)(c) of the ICC Statute that requires the ICC to apply general principles of law if they are consistent with the ICC Statute or international law.174
Finally, the Appeals Chamber in Gbagbo and Blé-Goudé (2020) followed Judge Eboe-Osuji’s above-examined single opinion. The Appeals Chamber considered that neither the normative framework of the ICC nor general principles of law prohibit “[t]he continuance of proceedings without the physical presence of the accused in cases of wilful absence”; and, if “the right to a fair trial is scrupulously respected, particularly by ensuring proper representation of counsel such proceedings are permissible in the realms of both international and domestic law”.175
Although the Appeals Chamber did not explicitly invoke Article 21(1)(c), it referred to “general principles of law” and some national legal sources.176 It relied, inter alia, on cases against Zaire, Italy, and Bulgaria before supranational human rights bodies177 in addition to the jurisprudence of the United Kingdom’s House of Lords and the findings of the Law Commission of New Zealand178 to conclude that: “At the national level, both the common law systems and continental European legal systems alike permit the trial of persons who wilfully abscond from their trial in circumstances of contumacy”.179 The range of national practices invoked by the Appeals Chamber to distil a general principle of law is, however, arguably limited. Some scholars such as Wheeler have criticized the Appeals Chamber’s quoted inference as “state practice with regard to this issue is far from uniform, making it impossible to conclude that a general principle of law exists”.180
6 Overall Analysis
The above-examined ICC general practice and specific examples on procedural matters show that the ICC has used domestic legal sources to derive or identify applicable general legal principles common to national legal traditions worldwide. Under Article 21(1)(c), general principles of law distilled by the ICC from several domestic legal sources have been used as an applicable subsidiary legal source. This has occurred when the ICC instruments (mainly the ICC Statute and ICC Rules) and other international law sources (treaties, etc.) applicable by the ICC provided no legal answer and, to some extent, when such an answer was (very) ambiguous or the Court needed to verify preliminary findings.
The ICC has clarified that it cannot directly apply the domestic law of a specific country. However, when there is a lacuna in its core legal instruments, the ICC can apply GPLDNL worldwide as a subsidiary source under Article 21(1)(c). In this sense, the ICC has arguably treated domestic law as applicable law via comparative approaches. Furthermore, the ICC’s procedural practice related to Article 21(1)(c) plausibly confronts the PCIJ’s traditional maxim whereby, under international law, “municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures”.181 Indeed, scholars like Jenks and Crawford criticized this formulation by the PCIJ.182 Authors such as Kolb, Dupuy and Hepburn have remarked that diverse international courts/international adjudicators have treated to a greater or lesser extent domestic law as law in varied situations and within their respective mandates.183 As Shaw has noted, national law at international courts “may also be utilised as […] part of any relevant applicable law”.184
The ICC has conducted comparative law surveys and analyses of domestic legal sources corresponding to the two major procedural models: adversarial and inquisitorial. The ICC practice arguably illustrates that international adjudicators can draw on diverse sources of information concerning domestic law, mainly parties’ filings and, complementarily, international adjudicators’ own research, arguably under the jura novit curia principle.185 In most of the procedural examples considered, however, the ICC should have expanded the universe of domestic legal sources examined. The ICC should have considered (additional) national legal sources corresponding to countries that predominantly adopted the inquisitorial model or have examined these sources as much as it did with adversarial national legal sources. Moreover, the ICC should have gone beyond the legal sources of the same group of countries, i.e., usually developed countries. As Raimondo suggested, equitable geographic distribution should guide the process of distilling general principles of law as a manifestation of an international community rather than “an oligarchic international society”, which will enhance the legitimacy of the said source.186
Yet, the ICC has combined references to national normative provisions (statutes, acts, etc.) with other national sources such as domestic jurisprudence. Scholars have remarked that it is important that international adjudicatory bodies consider national case law when these bodies engage with domestic legal systems.187
Crucially, the ICC has not mechanically extrapolated domestic procedural laws or national legal sources. Under Article 21(1)(c), instead, the ICC has endeavoured to distil applicable legal principles that are common to the legal systems of the world from national legal sources. It has correctly guaranteed its full procedural autonomy and flexibility to handle procedural issues without being constrained by one specific national legal system. Such pluralism in international criminal procedure is seemingly unavoidable.188 As part of the construction of a (more) pluralist international criminal law and procedure, comparative law is necessary and its necessity comes from international (criminal) sources, including that general principles of law are (largely) based on domestic law.189 Comparative law contributes to incorporating national law into international criminal procedure via a hybridization or cross-fertilization between national law and international law, helping to clarify general principles of law.190 Comparative law may help to implement the principle of complementarity and harmonize domestic criminal law.191
Nonetheless, even the adapted presence or use of national procedural principles and rules in the ICC’s law and practice can partially be criticised. First, the ICC has normally preferred the application of the procedural jurisprudence of other ICTs to the direct application of procedural principles and/or rules common to national legal traditions.192 Second, the extrapolation, combination, and adaptation of national procedural principles and rules in the ICC’s law and practice present the disadvantage of decontextualizing those domestic principles and rules. National sources were originally thought to work together in a (specific) adversarial or inquisitorial domestic system. Thus, the extrapolation and juxtaposition of procedural principles and rules that originally stemmed from adversarial or inquisitorial systems can be criticised because of tensions and inconsistencies in the complex amalgamation of ICC procedure. Third, the selective use of national legal sources by the ICC may be perceived as “cherry-picking” when choosing national laws or other domestic legal sources from only some countries at the expense of others in the process of deriving general principles of law from national legal systems under Article 21(1)(c). Diverse issues such as accessibility to sources and language have also contributed to the over-representation of certain national systems, mainly developed countries.193
Furthermore, the ICC has not considered “the national laws of States that would normally exercise jurisdiction over the crime”, such as the DRC194 or Kenya,195 when it has examined diverse national laws to derive GPLDNL in cases related to the said States. The ICC in one instance vaguely referred to “as appropriate, the national laws of the Democratic Republic of the Congo” as part of its analysis of Article 21(1)(c), only observing that “the Prosecution does not submit that such a practice [witness proofing] is consistent with the DRC criminal procedure”.196 Nevertheless, the Chamber did not (explicitly) include the DRC’s national law as such in its comparative analytical survey of national laws to distil a general principle of law. Therefore, the ICC procedural practice has largely neglected the above-quoted part of Article 21(1)(c). In some of the ICC procedural practice examined, the ICC had some engagement with the national laws/legal sources of the respective State but, as stated earlier, it was for purposes of the interpretation of specific provisions of the ICC Statute that refer to national laws and/or as an incidental matter rather than as part of the process of distilling a general principle of law under Article 21(1)(c).197
For, inter alia, legitimacy purposes, the ICC’s comparative law survey should include the procedural law of the country that would have exercised jurisdiction over the accused.198 Article 21(1)(c) actually indicates so. As Pellet has pointed out, although this part of Article 21(1)(c) might be questioned, “it can be accepted that the specificity of criminal law and the requirements of the nullum crimen principle justify this directive to the Court”.199 In similar fashion to Mégret,200 Pellet stated that, since the ICC is unable to comparatively and systematically study the national laws of all the States worldwide, “it seems legitimate that it gives priority to the legal systems with which the defendant is familiar – given that it has a wide discretionary power in this respect (‘as appropriate’)”.201
In certain situations, the ICC could especially consider more directly relevant national models to make its procedure more understandable locally.202 This may also relate to discussions on the international-vs.-local ownership of the ICC/ICTs as well as the impact and legacy of these institutions, which underlie the legitimacy crisis of the ICC/ICTs.203
Overall, the ICC has correctly restrained itself from a direct application of GPLDNL in ICC procedural matters. Nor has the ICC found itself bound by any domestic judgment. The latter exemplifies that rulings of domestic courts are not res judicata decisions binding on international courts.204
Methodologically speaking, the ICC has in general identified and compared representative examples of national legal sources of both adversarial and inquisitorial traditions to conclude subsequently whether there is a GPLDNL. To an important extent, the ICC’s use of national laws to distil and apply general principles of law may reflect that international law and domestic law are “increasingly interlinked” in international adjudication.205 In certain cases and concerning a specific procedural matter, the ICC could not derive a general legal principle from both adversarial and inquisitorial domestic systems, which shows the difficulties of distilling general principles of law common to diverse legal traditions into procedural issues.
Accordingly, the ICC has overall used domestic legal sources to identify a general principle of law that is common to national legal systems from the adversarial and inquisitorial models as a subsidiary applicable legal source under Article 21(1)(c). In this process, the ICC has examined national laws/legal sources: i) mainly when trying to fill some normative gaps in the ICC’s legal instruments, especially the ICC Statute and ICC Rules (praeter legem); and, to some extent, ii) when interpreting normative provisions of ICC instruments in case of ambiguity (secundum legem). Thus, the Court has used domestic legal sources in its Article 21(1)(c) procedural practice primarily to fill legal gaps. The examples considered illustrate this. Thus, the examined ICC procedural practice fits into the function(s) for which judges invoke the laws of other jurisdictions.206 These functions correspond to the comparative law approach.
In a broader context, GPLDNL at the ICC may be considered as an interpretative tool which, alongside other means such as implied powers and the judicial crafting of the RoC, aims at meeting the intrinsically crucial gap-filling function of the general principles. While the ICC has not invoked its implied powers as much as the ICTY/ICTR did in procedural matters, there have been some instances of the ICC’s procedural practice in which this has happened. As illustrated, in those instances, the judiciary’s invocation of the said powers has been conducted with(-out) additionally referring to general principles of law. On the other hand, the unexpected procedural importance acquired by the RoC enables us to approach the general principles as one among other interpretative mechanisms at an ICC Judge’s disposal to handle complex procedural matters, in particular when the ICC normative framework presents gaps.
7 Conclusion
The ICC procedural practice on Article 21(1)(c) has engaged with domestic laws/legal sources via comparative approaches and methodologies to a greater or lesser extent. Under Article 21(1)(c), the ICC has arguably used or engaged with domestic legal sources as applicable law indirectly. Under Article 21(1)(c), the ICC has hence not applied directly rules from a specific domestic law/legal source but, instead, it has used domestic legal sources to derive a general legal principle common to national legal traditions corresponding to both the adversarial and inquisitorial models in procedural matters. In this sense, the ICC has arguably applied comparative law as a subsidiary legal source.
When the ICC derives the said general legal principle, the ICC has applied it as a subsidiary legal source. Such a process of distilling general principles of law from national legal sources occurs when the ICC could not find an answer in its own instruments and/or, to some extent, when such answer was (very) ambiguous or when the ICC needed to confirm a preliminary conclusion or interpretation. Thus, the ICC has used domestic procedural legal sources (primarily laws and, partially, jurisprudence) to derive general legal principles mainly when ICC Judges try to fill gaps in the ICC’s legal instruments (praeter legem).
Hence, the ICC procedural practice related to Article 21(1)(c) primarily illustrates the gap-filling function of the comparative law approach. Moreover, such judicial practice arguably contributes to demonstrating how outdated the idea of domestic law as a fact (the PCIJ’s take on the issue) has become and the variety of functions domestic law plays in international courts and tribunals today. In a broader context, Article 21(1)(c) can be regarded as a judicial interpretative tool aimed at primarily filling normative gaps, alongside other mechanisms such as reliance on the ICC’s implied powers or RoC moulded by ICC Judges.
From a critical perspective and as a tool to address important aspects of the legitimacy crisis of international criminal justice, the ICC should increasingly and wisely use domestic procedural legal sources, particularly to distil general legal principles common to diverse national legal systems worldwide, including from those States that would normally exercise jurisdiction and without limiting comparative law surveys to only a few States. Compared to other ICTs, this is particularly important with regard to the ICC due to its (quasi-)global and permanent character and mandate, and amidst its protracted legitimacy crisis.
Miriam Damaška, The Faces of Justice and State Authority (1986), at 3; George Cole et al., Major Criminal Justice Systems (2nd edition, 1987).
Damaška, supra note 1, at 3; John Merryman, The Civil Law Tradition (2nd edition, 1985).
Salvatore Zappala, “Comparative Models and the Enduring Relevance of the Accusatorial- Inquisitorial Dichotomy”, in G. Sluiter et al. (eds.), International Criminal Procedure (2013), 44, 53; Kai Ambos, Treatise on International Criminal Law-Volume-III (2016), at 334–445; Fausto Pocar and Linda Carter, “The Challenge of Shaping Procedures in International Criminal Courts”, in L. Carter and F. Pocar (eds.), International Criminal Procedure – The Interface of Civil Law and Common Law Legal Systems (2013), 1–33.
Antonio Cassese, “The Statute of the International Criminal Court”, 10 EJIL (1999) 144, 168; Kai Ambos, “International Criminal Procedure: ‘Adversarial’, ‘Inquisitorial’ or ‘Mixed’”, 3 International Criminal Law Review (ICLR) (2003), 1–35; Zappala, supra note 3, 50.
Zappala, supra note 3, 50; Pocar and Carter, supra note 3, 13.
Ambos, supra note 4; Pocar and Carter, supra note 3, at 32.
See Claus Kreß, “The Procedural Law of the International Criminal Court in Outline”, 1 Journal of International Criminal Justice (JICJ) (2003), 603, 605; Zappala, supra note 3, 49–52.
E.g., Carsten Stahn (ed.), The Law and Practice of the International Criminal Court (2015).
E.g., Carter and Pocar, supra note 3.
E.g., Gilbert Bitti, “Article 21 and the Hierarchy of Sources of Law before the ICC”, in Stahn, supra note 8; Fabian Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (2008).
Certain German Interests in Polish Upper Silesia (Germany v. Poland), P.C.I.J. Series A, No. 7 (1926), at 19.
Emphasis added.
E.g., Muthaura et al., ICC-01/09-02/11-421, Decision on the “Request to Make Oral Submissions on Jurisdiction under Rule 156(3)”, ACh, 1 May 2012, para. 11.
E.g., Lubanga, ICC-01/04-01/06-772, Judgment on the Appeal of Lubanga against the Decision on the Defence Challenge to the Jurisdiction of the Court, ACh, 14 December 2006, paras. 28–33; Ruto and Sang, ICC-01/09-01/11-777, Decision on Ruto’s Request for Excusal from Continuous Presence at Trial, TCh-V(a), 18 June 2013, paras. 74–75.
E.g., ibid.; Katanga et al., ICC-01/04-01/07-717, Decision on the confirmation of charges, PTCh-I, 30 September 2008, para. 91.
See Jarrod Hepburn, “Domestic Law in International Adjudication”, in H. Ruiz-Fabri (ed.), Max Planck Encyclopedia of International Procedural Law (2019).
Ibid., para. 70.
German Interests, supra note 11, 19.
John Reitz, “How to Do Comparative Law”, 46 American Journal of Comparative Law (1998) 617, 624.
Neha Jain, “Judicial Lawmaking and General Principles of Law in International Criminal Law”, 57 Harvard International Law Journal (2016) 111, 116.
See Fabian Raimondo, “General Principles of Law, Judicial Creativity, and the Development of International Criminal Law”, in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (2020), 46.
E.g., Tadić, IT-94-1-A-AR77, Appeals Chamber Judgment on Allegation of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, para. 12.
Raimondo, supra note 21, 46.
Joseph Powderly, Judges and the Making of International Criminal Law (2020), 329.
Ibid., 325; Kanyabashi, ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber, Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, 17.
Powderly, supra note 24, 325; Paola Gaeta, “Inherent Powers of International Courts and Tribunals”, in L. Chand Vohrah et al. (eds.), Man’s Inhumanity to Man (2003), 364–371.
Kupreškić, IT-95-16-T, Trial Judgment, 14 January 2000, para. 521.
Powderly, supra note 24, 326.
Ibid., 340; Ondřej Svaček, “Applicable Law, Interpretation, Inherent and Implied Powers – Brief Rendezvous with the ICC”, 7 Czech Yearbook of Public & Private International Law (2016) 342, 369.
See Lubanga, supra note 14, paras. 36–39; Lubanga, ICC-01/04-01/06-1401, Decision on the Consequence of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, TCh-I, 13 June 2008.
Banda, ICC-02/05-03/09-410, Decision on the defence request for a temporary stay of proceedings, TCh-IV, 26 October 2012, para. 78.
Ruto and Sang, ICC-01/09-01/11-1274-Corr2, Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, TCh-V(a), 17 April 2014, paras. 104–108.
Ruto et al., ICC-01/09-01/11-1598, Judgment on the Appeals against “Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation”, ACh, 9 October 2014, para. 105.
Harun and Kushyab, ICC-02/05-01/07-57, Decision informing the United Nations Security Council about the lack of cooperation by Sudan, PTCh-I, 25 May 2010, p. 6.
Ruto and Sang, supra note 32, paras. 67–110.
Ibid., paras. 65–66.
Ibid., para. 67.
Ibid., para. 77.
Ibid., para. 83.
Ruto and Sang, ICC-01/09-01/11-2027-Red-Corr, Decision on Defence Applications for Judgments of Acquittal, TCh-V(a), Reasons of Judge Eboe-Osuji, 5 April 2016, para. 191.
Situation in Myanmar/Bangladesh, ICC-RoC46(3)-01/18-37, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3)”, PTCh-I, 6 September 2019, para. 29.
Ibid., paras. 29–32.
Partially Dissenting Opinion of Judge Perrin de Brichambaut, ICC-RoC46(3)-01/18-37-Anx, 6 September 2019, para. 29.
Powderly, supra note 24, 343.
Lubanga, ICC-01/04-01/06-2205, Judgment on the Appeals Against the “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts May be Subject to Change in Accordance with Regulation 55(2)”, ACh, 8 December 2009, para. 69.
Powderly, supra note 24, 343.
Lubanga, ICC-01/04-01/06-2049, Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2), TCh-I, 14 July 2009.
Lubanga, supra note 45, para. 77.
Katanga and Ngudjolo Chui, ICC-01/04-01/07-3319-tENG/FRA, Decision on the Implementation of Regulation 55 and Severing the Charges Against the Accused, TC-II, 21 November 2012.
Dissenting Opinion of Judge Christine Van den Wyngaert, 21 November 2012, para. 7.
E.g., Kevin Heller, “‘A Stick to Hit the Accused With’ – The Legal Recharacterization of Facts under Regulation 55”, in Stahn supra note 8, 981.
Powderly, supra note 24, 345–346.
Göran Sluiter, “Procedural Lawmaking at the International Criminal Tribunals”, in Darcy and Powderly, supra note 21, 321.
Powderly, supra note 24, 346.
E.g., Bitti, supra note 10, 425; William Schabas, The International Criminal Court – A Commentary on the Rome Statute (2nd edition, 2016), 518.
Lubanga, supra note 14, para. 34.
ICC, Situation in the DRC, ICC-01/04-168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber-I’s Decision Denying Leave to Appeal, ACh, 13 July 2006, para. 39. See also Ruto et al., ICC-01/09-01/11-1598, Judgment on the Appeals of Ruto and Sang against “Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation”, ACh, 9 October 2014, para. 105.
Bitti, supra note 10, 426.
Ibid.
Al-Bashir, ICC-02/05-01/09-3, Decision on the Prosecution’s Application for a Warrant of Arrest against Al-Bashir, PTCh-I, 4 March 2009, para. 126. See also, DRC Situation, supra note 57, paras. 22–24, 33–42; Lubanga, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, PTCh-I, 29 January 2007, para. 69; Ruto et al., ICC-01/09-01/11-373, Decision on the Confirmation of Charges, PTCh-II, 23 January 2012, para. 289; Katanga and Ngudjolo-Chui, supra note 15, para. 508.
Raimondo, supra note 10, 177–179.
Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (3rd edition, 2013), 15; Schabas, supra note 55, 525.
Raimondo, supra note 10, 178–179.
Schabas, supra note 55, 515; Margaret deGuzman, “Article 21”, in K. Ambos (ed.), Rome Statute of the International Criminal Court – Article-by-Article Commentary (2022), 1129, 1133.
E.g., Ntaganda, ICC-01/04-02/06-1962, Judgment on the Appeal of Ntaganda against the “Second Decision on the Defence’s Challenge to the Jurisdiction of the Court”, ACh, 15 June 2017, paras. 53–54.
Joseph Powderly, “The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function – Reflections on Sources of Law and Interpretative Technique”, in Stahn, supra note 8, 473.
UN Doc. A/CONF.183/C.1/WGAL/L.2, 11 July 1998; Schabas, supra note 55, 514–515.
DeGuzman, supra note 64, 1141.
Powderly, supra note 66, 482.
DeGuzman, supra note 64, 1142.
Muthaura et al., supra note 13, para. 11.
Ibid.
Bemba et al., ICC-01/05-01/13-2275-Red, Judgment on the Appeals of Jean-Pierre Bemba et al. against “Judgment pursuant to Article 74”, ACh, 8 March 2018, para. 291.
E.g., Tadic, IT-94-1-T, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, TCh-II, 10 August 1995, paras. 22, 39–42. See also International Law Association (ILA), The Use of Domestic Law Principles in the Development of International Law (2018), para. 39.
Gilbert Bitti, “Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC”, in G. Sluiter and C. Stahn (eds.), The Emerging Practice of the International Criminal Court (2009), 295–296. See also Powderly, supra note 66, 473.
Emphasis added.
Ruto and Sang, supra note 32, para. 59.
Ibid., paras. 162–179.
Ibid., paras. 151–179.
Emphasis added.
Lubanga, supra note 27, para. 72.
See Robert Kolb, The International Court of Justice (2013), 354; Hepburn, supra note 16, paras. 6–8.
See Harmen Van-der-Wilt, “National Law – A Small but Neat Utensil in the Toolbox of International Criminal Tribunals”, 10 ICLR (2010) 209, 216.
E.g., Raimondo, supra note 10, 150.
E.g., Cassese and Gaeta, supra note 62, 15; Powderly, supra note 66, 483; Schabas, supra note 55, 525; Juan-Pablo Pérez-León-Acevedo, “Reparations Principles at the International Criminal Court”, in Mads Andenas et al., General Principles and the Coherence of International Law (Brill ,2019), 333–335.
Schabas, supra note 55, 525.
Ibid., 520.
Ibid.
Furundžija, IT-95-17/1, Trial Judgment, TCh, 10 December 1998, para. 177.
See Katanga and Ngudjolo-Chui, ICC-01/04-01/07-322, Decision Revoking the Prohibition of Contact and Communication between Katanga and Ngudjolo-Chui, PTCh-I, 13 March 2008, at 12.
Furundžija, supra note 89, para. 178.
Raimondo, supra note 10, 156–158.
Similarly, see also Powderly, supra note 66, 473.
Raimondo, supra note 10, 157.
Ibid.
Ibid.
Ibid., 175–183. See also Van-der-Wilt, supra note 83, 213–214.
Raimondo, supra note 10, 157.
Ibid., 181–183; ILA, supra note 74, para. 42.
DeGuzman, supra note 64, 1143.
Alexander Heinze, International Criminal Procedure and Disclosure (2014), 48–50.
DeGuzman, supra note 64, 1143.
Raimondo, supra note 10, 158.
Bemba et al., supra note 73, para. 291.
Ibid.
Katanga and Ngudjolo-Chui, supra note 90, 12.
Lubanga, supra note 27, para. 69; Katanga and Ngudjolo-Chui, supra note 15, para. 91.
Muthaura et al., supra note 13, para. 11.
Ibid.
Ruto and Sang, supra note 32, para. 65.
Bitti, supra note 10, 432.
Ibid.
See Ruto and Sang, supra note 32, para. 91.
Muthaura et al., ICC-01/09-01/11-365, Judgment on the Appeal of the Prosecutor against “Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence”, ACh, 10 November 2011, para. 62. See also Ruto and Sang, ICC-01/09-01/11-1123, Decision on the Prosecutor’s Appeal against “Decision on the Prosecution’s Request to Amend the Updated Document Containing the Charges”, ACh, 13 December 2013, paras. 28, 32.
Muthaura et al., supra note 114, para. 62.
Bitti, supra note 10, 433.
Lubanga, supra note 60, para. 69.
Ibid.
Lubanga, ICC-01/04-01/06-2842, Judgment, Separate Opinion of Judge Fulford, 14 March 2012, para. 10.
Banda, ICC-02/05-03/09-252, Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Request to Invalidate the Appointment of Counsel to the Defence”, ACh, 11 November 2011, para. 33.
Ibid.
Ngudjolo-Chui, ICC-01/04-02/12-4, Judgment-Concurring Opinion of Judge Van-den- Wyngaert, TCh-II, 18 December 2012, para. 5.
See Ruto and Sang, supra note 14, paras. 34–53, 74–75; Gbagbo and Blé-Goudé, ICC-02/11-01/15-1355-Red, Decision on Counsel for Gbagbo’s Request for Reconsideration of the Judgment on the Prosecutor’s Appeal and on the Review of the Conditions on the Release of Gbagbo and Blé-Goudé, ACh, 28 May 2020, para. 70.
Powderly, supra note 66, 483.
Ibid.
Ibid.
E.g., Lubanga, ICC-01/04-01/06-1049, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, TCh-I, 30 November 2007, para. 41; Bemba et al., Decision on Witness Preparation and Familiarisation, ICC-01/05-01/13-1252, TCh-III, 15 September 2015, para. 20.
Frédéric Mégret, “The Sources of International Criminal Procedure”, in Sluiter et al., supra note 3, 71–72.
Ibid., 72.
Ibid.
Ibid., 71.
Ibid., 73.
DRC Situation, supra note 57, paras. 21–22.
Ibid.
Ibid., paras. 21–31.
Ibid., paras. 26–31.
Ibid., para. 32.
Lubanga, supra note 14, paras. 26–35.
Ibid., para. 26.
Ibid., para. 28.
Ibid., para. 29.
Ibid., para. 33.
Ibid.
Ibid.
Ruto and Sang, supra note 32, paras. 63–91, 94–101.
Ibid., para. 91.
Ibid., para. 92.
Ibid., para. 91.
Lubanga, supra note 27, para. 63.
Ibid., para. 69.
Ibid.
See Ruben Karemaker et al., “Witness Proofing in International Criminal Tribunals”, 21 Leiden Journal of International Law (LJIL) (2008), 683–698.
See Kai Ambos, “‘Witness proofing’ before the ICC – Neither Legally Admissible nor Necessary”, in Stahn and Sluiter, supra note 75, 599–614; Wayne Jordash, “The Practice of ‘Witness Proofing’ in International Criminal Tribunals”, 22 LJIL (2009), 501–523; Sergey Vasiliev, “Proofing the Ban on ‘Witness Proofing’”, 20 Criminal Law Forum (2009), 193–261.
See especially Ambos, supra note 153, 606, 612.
Lubanga, ICC-01/04-01/06-679, Decision on the Practices of Witness Familiarisation and Witness Proofing, PTCh-I, 9 November 2006, paras. 7–18.
Ibid., para. 19.
Ibid., paras. 17, 40.
Ibid., p. 9 and para. 28,
Ibid., para. 35.
Ibid., para. 36.
Ibid., para. 37.
Ibid., para. 40.
Ibid., paras. 41–42.
Lubanga, supra note 127, para. 38.
Ibid., para. 29 and fn. 52.
Ibid., paras. 9–10.
Ibid., para. 40.
Ibid.
Ibid., para. 41.
See Kenyatta, ICC-01/09-02/11-863, Decision on the Prosecution’s Motion for Reconsideration of the Decision Excusing Kenyatta from Continuous Presence at Trial, TCh-V(B), 26 November 2013.
Kenyatta, ICC-01/09-02/11-863-Anx-Corr, Dissenting Opinion of Judge Eboe-Osuji, 27 November 2013, paras. 122, 128.
Ibid., paras. 136–181.
Ibid., para. 182.
Ibid., para. 188.
Gbagbo and Blé-Goudé, supra note 123, para. 70.
See ibid.
UN Human Rights Committee, Mbenge v. Zaire, Communication 16/1977, Merits, 25 March 1983, para. 14.1; ECtHR, Sejdovic v. Italy, Application 56581/00, Judgment, 1 March 2006, paras. 82–83, 86–88; ECtHR, Demebukov v. Bulgaria, Application 68020/01, Judgment, 28 February 2008, para. 45; ECtHR, Atanasova v. Bulgaria, Application 52009/07, Judgment, 26 January 2017, para. 52.
House of Lords, R v. Jones, 20 February 2002, [2002] UKHL 5, [2003] 1 AC 1; Law Commission of New Zealand, “Discussion Document – Proceeding in the Absence of the Defendant”, 2009, para. 28.
Gbagbo and Blé-Goudé, supra note 123, para. 70.
Caleb Wheeler, “Shifting Priorities – Are Attitudes Changing at the International Criminal Court about Trials in absentia?”, 21 ICLR (2021) 97, 119.
German Interests, supra note 11, at 19.
Clarence Jenks, The Prospects of International Adjudication (1964), 548, 552; Hepburn, supra note 16, paras. 11–20; James Crawford, Brownlie’s Principles of Public International Law (9th edition, 2019), 49.
Kolb, supra note 82, at 350; Pierre-Marie Dupuy, “International Law and Domestic (Municipal) Law”, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2011), para. 31; Hepburn, supra note 16, paras. 11–20.
Malcolm Shaw, International Law (9th edition, 2020), 117.
Hepburn, supra note 16, para. 71; Rüdiger Wolfrum and Mirka Möldner, “International Courts and Tribunals, Evidence”, in Wolfrum, supra note 183, para. 22.
Raimondo, supra note 10, 59.
S. Bhuiyan, National Law in WTO Law (2007), 223–225; Hepburn, supra note 16, para. 70.
Alexander Greenwalt, “The Pluralism of International Criminal Law”, 86 Indiana Journal of International Law (2011) 1063, 1068.
See Mireille Delmas-Marty, “The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law”, 1 JICJ (2003) 13, 16.
Ibid.
Mireille Delmas-Marty, “Comparative Criminal Law as a Necessary Tool for the Application of International Criminal Law”, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), 97.
Greenwalt, supra note 188, 1078.
Mégret, supra note 128, 72.
E.g., DRC Situation, supra note 57; Lubanga, supra note 17.
E.g., Ruto and Sang, supra note 32; Kenyatta, supra note 167.
Lubanga, supra note 155, para. 35.
Ruto and Sang, supra note 32, paras. 151–179; Ruto and Sang, supra note 14, paras. 51, 81–84.
Yuval Shany, “Seeking Domestic Help – The Role of Domestic Criminal Law in Legitimizing the Work of International Criminal Tribunals”, 11 JICJ (2013) 5, 14; Mirjan Damaška, “Should National and International Justice be Subjected to the Same Evaluative Framework?”, in Sluiter et al., supra note 3, 1422.
Alain Pellet, “Revisiting the Sources of Applicable Law before the ICC”, in M. deGuzman and D. Amann (eds.), Arcs of Justice (2018), 243.
Mégret, supra note 128, 73.
Pellet, supra note 199, 243.
Mégret, supra note 128, 73.
See, generally, Stahn, supra note 8; Charles Jalloh and Ilias Bantekas, “Introduction”, in C. Jalloh and I. Bantekas (eds.) The International Criminal Court and Africa (2017); Milena Sterio and Michael Scharf (eds.), The Legacy of Ad Hoc Tribunals in International Criminal Law (2019); Kirsten Ainley et al., “Symposium on Resilience and the Impacts of Hybrid Courts”, 33 LJIL (2020), 969–1046.
Hepburn, supra note 16, paras. 37–38.
Wolfrum and Möldner, supra note 185, para. 22.
See Reitz, supra note 19, 624.