ON INTERPRETATION OF INTERNATIONAL CRIMINAL LAW PROVISIONS BETWEEN CONCEPTS AND TRADITIONS Dr Michał Królikowski, University of Warsaw

CHARAKTER AND RULES OF ICL  INTERNATIONAL CRIMINAL LAW (STRICT SENSE)  Core crimes under the jurisdiction of international tribunals  Individual criminal liability for commission  TRANSNATIONAL CRIMINAL LAW  Crimes of international concern (treaty crimes)  Transnational interest in co-operation with regard to those crimes  EUROPEAN CRIMINAL LAW  NATIONAL LAW ON INTERNATIONAL CRIMES AND CO-OPERATION

INTERNATIONAL CRIMINAL LAW IN THE STRICT SENSE  Core crimes based on definitions recognized under international law (genocide, crimes against humanity, war crimes and aggression, special case for torture)  Individual criminal responsibility directly imposed and executed by international rules  Universal jurisdiction over the offender  Protection of international or the most fundamental values and interests

THE CRUCIAL POINTS  Penal rules on the conditions on which individual may be held criminally liable for his (international) crime are expressed in public international rules  Preconditions of criminal liability and description of sources on public international law are products of different legal traditions  Judges come from different legal traditions (tension between continental and common-law legal reasoning)

BASIC ANTINOMIES  Reconstruction of sources and principles of interpretation of international criminal law provisions should follow the theory of public international law (Viena Convention of Treaties: literal interpretation, teleological interpretation and contextual interpretation – understood either as a systemic or value-oriented method of interpretation).  The aim of individual criminal liability introduces limitations on how the basics for liability should look like and how they need to interpreted (n.c.s.l., strict construction of crimes, ban on analogy creating the basics for liability, predicatibility and legal certainty expressed the most directly in the mistake of law excuse).

BASIC FRAMEWORK OF THE SOURCES OF INTERNATIONAL LAW  Art. 38 sec. 1 of the International Court of Justice states, that basic sources of PIL are: International treaties providing the rules explicitly recognized by parties; International custom being the evidence of existing common practice recognized as a law; general principles of the law ‘recognized by civilized nations’; as subsidiary means – case law and doctrinal positions.

PIL SOURCES -- continued  Lack of hierarchy between sources and coherence in the system  Possibility to identify so-called peremptory norms (jus cogens), but legal consequences of them are clear only in treaty regime  Problem of legality principle when statute is adopted after commission of the crime  The responsive content of the statutory rules  The role of customary law (but problem with predictability to the offender)

Criminal Liability Objection towards PIL framework  Problem of legality principle when statute is adopted after commission of the crime  The responsive content of the statutory rules  The role of customary law (but problem with predictability to the offender)

Sources recognised by the International Criminal Court Statute  In the first place, ICC Statute, Elements of Crimes and its Rules of Procedure and Evidence;  In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;  Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of the State that would normally exercise jurisdiction over the crime, provided that these principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

Dispersed system of criminal unlawfulness  Most of the ICL provisions were expressed in peremptory customary norms to which obligations erga omnes are related. The reconstruction of them requires understanding the common relations between custom and treaties, and between custom and case law.  Treaty and statutory rules introducing principles of liability are very fragmentary, so the burden was imposed on ‘general principles’.  Problem of the level of activity of the courts in declaring the general principles.

GENERAL PRINCIPLES  ‘General principles of the law recognized by civilized nations’ (art. 38(1)(c) of ICJ) contrasted with ‘General principles of the law derived from national laws of legal systems of the world’ (art. 21(1)(c) of ICC)  General principles of ICL recognized explicitly in international law framework (n.c.s.l. versus victors justice)  General principles of PIL  Generalizations made on comparative analises (ICTY Furundzija rape exaple)

Next antinomies  A Court may apply principles and rules of law as interpretes in its previous decisions (art. 21(2) ICC) – so-called ‘soft approach to precedents’ (not ‘shall’)  The definition of crime shall be strictly construed and shall not be extended by analogy (art. 22(2) ICC)  Two criminal law traditions in assessing limits of prohibited behaviour (continental and common-law). They merge on two levels:  while discovering the content of the rules, especially general principles of the ICL  while serving as a judge with regard to obligation to follow the written law

ICTY in Aleksowsky (IT-95-14/1-A, 24 March 2000)  Courts shall rely on reasoning adopted in former judgments, but under extraordinary circumstances they can give up with that line of argumentation.  The need for criminal liability of the offender requires that the compromise need to be made between legal certainty, stability and predictability of the execution of the ICL with material justice (transgressing formal definition for the sake of doing justice).  What shall be followed is not the solution expressed in former judgement, but ‘legal principle, being ratio decidendi, is the point, which you need refer to’. But the obligation to obey the way of reasoning exists only in similar cases.  Why? Artificial reason may be more effective in vaqueness of the law reconstructed from different aources that formal clarity. While there is clear rule formality in n.c.s.l. should be decisive.

Examples  ‘In every legal system, both continental and common-law, when the meaning of the statutory words is beyond doubts, judge is obliged to follow that wording’. In the case court dealt with the concept of ‘body and health grave harm’ and – as declared – based on ‘plain, ordinary meaning of the words (sic!)’ he accepted that it was related also to mental suffering [ICTY, Delalić Trial Chamber, IT-96-21, 16 Nov ]  In another case court was looking for the definition of the rape (empty definition in the statute). After assessing that there is no clear in the major legal system whether forced oral sex is understood as a rape it found basic for punishing the offender for rape crime based on ‘intransgressible principle of human dignity’[ICTY, Furundzija Trial Chamber, IT-95-17, 10 Dec. 1998]

FINAL ISSUES  Is n.c.s.l. principle (strict interpretation and prihibition of analogy) part of core limit of the interpretation of international criminal law provisions? (example: problem of crimes committed by the omission)  Is there an obligation in the process of interpretation to force the compliance of the ICC statutory provisions to customary rules?  ‘Nothing … shall be interpreted as limiting or prejudicing in any way existing and developing rules of IL for other purposes than this Statute’ (art. 10 ICC)  N.c.s.l. ‘shall not affect the characterization of any conduct as a criminal under international law independently of this Statute’ (art. 22(3) ICC)  Part of the definition of war crimes: ‘other serious violations of the laws and custom aplicable in international armed conflict, within the established framework of international law…’ (art. 8(2)(b)(e) ICC