SOURCES OF INTERNATIONAL CRIMINAL LAW

ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this all along the completion of my
project report. Whatever I have done is only due to such guidance and I would never forget to
thank them. I am thankful to and fortunate enough to get constant encouragement, support
and guidance throughout the completion.
I am very much thankful to Ms. Nidhi Singh for her support and guidance, without which I
would not have been able to accomplish this project work.
I am thankful to my department, University Institute of Legal Studies, Panjab University,
Chandigarh, for providing such an expansive library which provided me all the relevant
material required for this project.
I also express my gratitude to the library staff for their help in the searching of the books and
whatever other help I needed.
I am also thankful to my friends who helped me in collection of material.
Lastly and most importantly, I would like to thank my parents and the almighty for moral
support and constant supervision.

AMANINDER JEET KAUR

INTERNATIONAL CRIMINAL LAW Page 1

 SOURCES OF INTERNATIONAL CRIMINAL LAW

TABLE OF CONTENTS

TABLE OF CASES ................................................................................................................................ 3

1. INTERNATIONAL CRIMINAL LAW: AN INTRODUCTION ............................................. 4
2. SOURCES OF INTERNATIONAL CRIMINAL LAW ........................................................... 7
3. ADOPTION OF THE STATUTE OF INTERNATIONAL CRIMINAL COURT ................. 9
4. OTHER SOURCES OF INTERNATIONAL CRIMINAL LAW........................................... 12
4.1 TREATIES.................................................................................................................................... 12
4.2 CUSTOMARY INTERNATIONAL LAW .................................................................................. 13
4.3 GENERAL PRINCIPLES OF LAW ............................................................................................ 15
4.4 JUDICIAL DECISIONS AND LEARNED WRITINGS ............................................................. 16
5. CONCLUSION ........................................................................................................................... 18
6. BIBLIOGRAPHY ....................................................................................................................... 19

INTERNATIONAL CRIMINAL LAW Page 2

 SOURCES OF INTERNATIONAL CRIMINAL LAW

TABLE OF CASES
1. Erdemovic´case ............................................................................................................................... 15
2. Furundžija ....................................................................................................................................... 15
3. Galic´ case ........................................................................................................................................ 13
4. Kordic´ and Čerkez......................................................................................................................... 13
5. Tadic case........................................................................................................................................... 4

INTERNATIONAL CRIMINAL LAW Page 3

 SOURCES OF INTERNATIONAL CRIMINAL LAW

1. INTERNATIONAL CRIMINAL LAW: AN INTRODUCTION

International law typically governs the rights and responsibilities of States; 1 criminal law,
conversely, is paradigmatically concerned with prohibitions addressed to individuals,
violations of which are subject to penal sanction by a State.2 The development of a body of
international criminal law which imposes responsibilities directly on individuals and punishes
violations through international mechanisms is relatively recent. Although there are historical
precursors and precedents of and in international criminal law, it was not until the 1990s,
with the establishment of the ad hoc Tribunals for the former Yugoslavia and Rwanda, that it
could be said that an international criminal law regime had evolved. This is a relatively new
body of law, which is not yet uniform, nor are its courts universal. International criminal law
developed from various sources. War crimes originate from the ‘laws and customs of war’,
which accord certain protections to individuals in armed conflicts. Genocide and crimes
against humanity evolved to protect persons from what are now often termed gross human
rights abuses, including those committed by their own governments. With the possible
exception of the crime of aggression with its focus on inter-State conflict, the concern of
international criminal law is now with individuals and with their protection from wide-scale
atrocities. As was said by the Appeal Chamber in the Tadic case3 in the International
Criminal Tribunal for the former Yugoslavia (ICTY):
A State-sovereignty-oriented approach has been gradually supplanted by a human-being
oriented approach . . . International law, while of course duly safeguarding the legitimate
interests of States, must gradually turn to the protection of human beings . . .

The meaning of the phrase ‘international criminal law’ depends on its use, but there is a
plethora of definitions, not all of which are consistent. In 1950, the most dedicated chronicler
of the uses of ‘international criminal law’, Georg Schwarzenberger, described six different
meanings that have been attributed to that term;
(a) In the sense of territorial scope of municipal criminal law- it covers those cases when
criminal jurisdiction is exercised by a state either within in its own territory or in
places assimilated in it;

1
Oppenheim’s International Law (9th edn, London, 1994) 5–7.
2
Glanville Williams, ‘The Definition of Crime’ (1955) 8 Current Legal Problems 107.
3
IT-94-1-A

INTERNATIONAL CRIMINAL LAW Page 4

 SOURCES OF INTERNATIONAL CRIMINAL LAW

(b) In the sense of internationally prescribed municipal criminal law- this is based on
treaties and international customary laws and covers cases such as piracy and slave
trading;
(c) In the sense of internationally authorised municipal criminal law- it is an extension of
the earlier category and covers cases such as piracy Jure Gentium and war crimes;
(d) In the sense of municipal criminal law common to civilized nations- it covers cases
such as forgery of foreign currency;
(e) In the sense of international co-operation in the administration of justice; and
(f) In the material sense of the term, all of which related to international law, criminal
law and their interrelationship, but none of which referred to any existing body of
international law which directly created criminal prohibitions addressed to
individuals.
Schwarzenberger believed that no such law existed at the time. ‘An international crime’, he
said in reference to the question of the status of aggression, ‘presupposes the existence of an
international criminal law. Such a branch of international law does not exist.’ Cherif
Bassiouni,4 on the other hand (and writing almost half a century later), listed twenty-five
categories of international crimes, being crimes which affect a significant international
interest or consist of egregious conduct offending commonly shared values, which involve
more than the State because of differences of nationality of victims or perpetrators or the
means employed, or which concern a lesser protected interest which cannot be defended
without international criminalization. His categories include, as well as the more familiar
ones, traffic in obscene materials, falsification and counterfeiting, damage to submarine
cables and unlawful interference with mail. Different meanings of international criminal law
have their own utility for their different purposes and there is no necessary reason to decide
upon one meaning as the ‘right’ one.
International criminal law in the material sense of the term can exist only when some pre-
conditions are satisfied namely, (a) some external authority to enforce sanctions of
international criminal law; (b) a code of criminal law; (c) an international criminal court; and
(d) State as well as individuals should be amenable to international criminal responsibility.
International criminal law also shares common roots with international humanitarian law, the
body of law designed to protect victims of armed conflict. Large areas of international
humanitarian law are now criminalized as war crimes. Thus, international humanitarian law

4
M. Cherif Bassiouni (ed.), International Criminal Law, 3rd edn (Leiden, 2008) vol. I, 129, 134–5.

INTERNATIONAL CRIMINAL LAW Page 5

 SOURCES OF INTERNATIONAL CRIMINAL LAW

serves as a point of reference in understanding and interpreting the corresponding war crimes
provisions. As with human rights norms, care must be taken before transposing all
humanitarian law standards directly into international criminal law; the latter has distinct
principles of interpretation.
The two bodies of law that make up international criminal law (international law and criminal
law) are compatible, although the relationship between the two can be fractious. International
criminal law should be appraised from the standpoints of both bodies of law. Its sources are
those of international law, but its consequences are penal. As a body of international law it
requires an understanding of the sources and interpretation of international law. But it is also
criminal law and as such needs substantive provisions that are clear and exact rather than the
often more imprecise formulations of international law. Further, the relevant international
courts and tribunals require methods and procedures proper to a criminal court, with due
regard to the rights of the accused at all stages of the investigation and court procedures. At a
more abstract level, the sophisticated philosophical analyses of the appropriate ambit of
criminal liability that have been developed at the domestic level ought to be borne in mind
whenever international crimes or their principles of liability are being appraised.5 Certain
fundamental principles of national criminal law systems have now become entrenched in
international law, and more particularly, in human rights law. One aspect of human rights law
with a close analogue in criminal law theory is the prohibition of retroactive criminal
prohibitions and penalties (sometimes referred to together as the principle of legality or
nullum crimen, nulla poena, sine lege). Due to the relative imprecision of the nature and
content of international law, the principle has greater prominence in international than in
national courts.

5
Claus Kreß, ‘The Crime of Genocide Under International Law’ (2006) 6 ICLR 461.

INTERNATIONAL CRIMINAL LAW Page 6

 SOURCES OF INTERNATIONAL CRIMINAL LAW

2. SOURCES OF INTERNATIONAL CRIMINAL LAW

As international criminal law is a subset of international law, its sources are those of
international law. These are usually considered to be those enumerated in Article 38(1) (a)-
(d) of the Statute of the International Court of Justice, in other words, treaty law, customary
law, general principles of law and, as a subsidiary means of determining the law, judicial
decisions and the writings of the most qualified publicists.6 As will be seen, all of these have
been used by the ad hoc tribunals. They are available for use by national courts in so far as
the relevant national system concerned will allow. The ICC statute contains its own set of
sources for the ICC to apply, which are analogous, although by no means identical, to those
in the ICJ statute.7 The five sources of ICL roughly correlate with the classic expression of
the sources of international law contained in Article 38(1) of the Statute of International
Court of Justice (ICJ):

(a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.

General
Principles of
Law
Customary
Judicial
International
Decisions
Law

Treaty-based Sources of Learned

International
Law Criminal Law writings

6
Dapo Akande, ‘Sources of International Criminal Law’ in Antonio Cassese et al. (eds.), The Oxford
Companion to International Criminal Justice 41.
7
Art. 21 of the ICC Statute.

INTERNATIONAL CRIMINAL LAW Page 7

 SOURCES OF INTERNATIONAL CRIMINAL LAW

At the ICC, the Rome Statute, Elements of Crimes and Rules of Procedure and Evidence
provide the primary sources of law. Treaties and principles and rules of international law are
applied once the primary sources have been utilised, and finally, general principles of law,
including relevant and appropriate national laws are considered.

The sources of law can sometimes overlap and have a dynamic relationship. For example, a
treaty can reflect, become or influence the development of customary international law and
vice versa. A judgment of an international court may influence the development of treaty and
customary international law. Generally, international criminal law, in addition to their own
governing instruments (which may include treaties).

The relevance and importance of these sources in national criminal jurisdiction differs
between countries. For example, in some jurisdictions, the direct source of international
criminal law is national legislation incorporating ICL. In this instance, treaty and customary
international law cannot be used as a direct source. Conversely, some courts can apply treaty
law but not customary international law, while in others; custom can be applied as well.
Moreover, even if national legislation is the direct source of the applicable law, international
criminal law treaties, commentaries on them and international judicial decisions are often
used as aids to interpret the national law and are sometimes considered persuasive (not
binding) precedent.

Different courts may apply these sources in different ways. For example:

 National courts may not find it necessary to refer directly to international law sources
when the content and meaning of the applicable national laws (including incorporated
or otherwise applicable international law) are unambiguous.
 National legislation and judicial decisions can be evidence of customary international
law- but they are not directly applied by international courts. Indeed, the ICTY
Appeals Chamber has held that “domestic judicial views or approaches should be
handled with the greatest caution at the international level, lest one should fail to
make due allowance for the unique characteristics of international criminal
proceedings”.

INTERNATIONAL CRIMINAL LAW Page 8

 SOURCES OF INTERNATIONAL CRIMINAL LAW

3. ADOPTION OF THE STATUTE OF INTERNATIONAL

CRIMINAL COURT

The General Assembly, in its resolution 44/39 of 4 December, 1989, requested the
International Law Commission to address the question of establishing an International
Criminal Court. Through its resolution 45/41 of 28 November, 1990 and 45/54 of 9
December, 1991, the Assembly invited the Commission to consider further and analyse the
issues concerning the question of an international criminal jurisdiction, including the question
of establishing an International Criminal Court. Further, in resolutions 47/33 of 25
November, 1992 and 48/31 of 9 December, 1993, the General Assembly requested the
Commission to elaborate the draft statute for such a Court as a matter of priority.

The International Law Commission considered the question of establishing an International

Criminal Court from its forty-second session to its forty-sixth session in 1994. At the latter
session, the commission completed a draft statute for an International Criminal Court, which
was submitted with General Assembly.

The General Assembly, on its part, passed resolution 51/207 on 17th December, 1996 through
which it decided to hold a diplomatic conference of plenipotentiaries in 1998 with a view to
finalizing and adopting a convention on the establishment of an International Criminal Court.
In its resolution 52/160 of 15th December, 1997, the General Assembly accepted the offer of
Italy to act as host to the conference and decided to hold the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an International Criminal Court in
Rome from 15 June to 17 July, 1998. On 17 July, 1998, the conference adopted the statute
known as the Rome Statute of the International Criminal Court. The Rome Statute for
International Criminal Court entered into force on April 11, 2002. On that date ten nations
ratified the statute thus making a total of 66 state parties to the treaty. Article 126 of the
Rome Statute required the ratification of 60 nations for the statute to come into force. Besides
the Preamble, there are 128 Articles in the statute which are divided into the following 13
parts:

(i) Establishment of the Court;

(ii) Jurisdiction, Admissibility and Applicable law;
(iii) General principles of Criminal law;
(iv) Compensation and Administration of the Court;

INTERNATIONAL CRIMINAL LAW Page 9

 SOURCES OF INTERNATIONAL CRIMINAL LAW

(v) Investigation and Prosecution;

(vi) The trial;
(vii) The penalties;
(viii) Appeal and revision;
(ix) International Cooperation and Judicial Assistance;
(x) Enforcement;
(xi) Assembly of States parties;
(xii) Financing; and
(xiii) Final clause.

The Rome Conference or the U.N. Diplomatic Conference of plenipotentiaries on the

establishment of International Criminal Court was attended by 162 countries. Besides
adopting the statute, the Conference, through a resolution in its Part F (of Annex. 1)
established the preparatory commission for the International Criminal Court to prepare the
proposals for practical arrangements for the establishment and coming into operation of the
Court.8

According to Article 126 of the Statute, the Statute shall enter into force on the first day of
the month after the 60th day following the date of deposit of the 60th instrument of ratification
acceptance, approval or accession with the Secretary General of the United Nations. For each
State ratifying, accepting, approving or acceding to the statute after the deposit of the 60th
instrument of ratification, acceptance, approval or accession, the statute shall enter into force
on the first day of the month after the 60th day following the deposit by such state of its
instrument of ratification, acceptance, approval or accession.

According to Article 21 of the statute:

(1) The Court shall apply:

(a) In the first place, this statute elements of crime and its Rules of Procedure and
Evidence.
(b) In the second place, where appropriate, applicable treaties and the principles and
rules of international law, including the established principles of international law,
including the established principles of the international law of armed conflict.

8
Part F Annex. I of U.N. Doc. A/Cont./83/10, 17 July, 1998.

INTERNATIONAL CRIMINAL LAW Page 10

 SOURCES OF INTERNATIONAL CRIMINAL LAW

(c) Failing that, general principles of law derived by 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 the statute and with international law and internationally
recognized norms and standards.
(2) The Court may apply principles and rules of law as interpreted in its previous
decisions.
(3) The application and interpretation of law pursuant to this Article must be consistent
with internationally recognized human rights, and be without any adverse distinction
founded on grounds such as gender as defined in Article 7, paragraph 3, age, race,
colour, language, religion, or belief, political or other opinion, national, ethnic or
social origin, wealth, birth or other status.

INTERNATIONAL CRIMINAL LAW Page 11

 SOURCES OF INTERNATIONAL CRIMINAL LAW

4. OTHER SOURCES OF INTERNATIONAL CRIMINAL LAW

4.1 TREATIES
Treaty-based sources of international criminal law, either directly or as an aid to
interpretation, include the 1907 Hague Regulations, the 1949 Geneva Conventions (and their
additional protocols) and the 1948 Genocide Convention. They form the basis for many of
the crimes within the jurisdiction of the ad hoc tribunals and the ICC. The Statute of ICC,
which sets out the definitions of crimes within the jurisdiction of the ICC, is, of course, itself
a treaty. Security Council resolutions 827(2003) and 955(2004), which set up the ICTY and
ICTR respectively, were adopted by the Security Council pursuant to its powers under
Chapter VII of the UN Charter, and thus find their binding force in Article 25 of the Charter.
Depending on the jurisdiction, in-force treaties that have been ratified (or acceded to) by the
relevant state can be a direct source of applicable law. In jurisdictions where treaties cannot
be a direct source of law, they often can serve as aids to interpretation of other applicable
law. In some jurisdictions, treaty law is the main source of ICL. For example, the Rome
Statute of the ICC is a treaty and a primary source of law for that court. However, at the
ICTY and ICTR, treaty law is less important than custom as a direct source (although some
of the crimes in their Statutes are copied verbatim from treaties, for example, the Genocide
Convention).
The source of their binding nature is therefore a treaty. The Statutes of the tribunals have had
an important effect on the substance of international criminal law both directly, as applied by
the Tribunals, and indirectly as a source for other international criminal law instruments; the
influence of the ICC Statute has so far largely been through its impact on national legislation.
It has been suggested that treaties might not suffice to place liability directly on individuals
and as such cannot be a direct source of international criminal law. Such arguments run up
against long-standing practice in international humanitarian law, which has been to apply to
individuals the ‘laws and customs of war’ as found in the relevant treaties, as well as a
customary law. As the Permanent Court of International Justice noted over eighty years ago,
treaties can operate directly on individuals, if that is the intent of the drafters. The
International Committee for the Red Cross and Red Crescent (ICRC) study on customary
humanitarian law reports that ‘the vast majority of practice does not limit the concept of war
crimes to violations of customary international law. Almost all military manuals and criminal
codes refer to violations of both customary law and applicable treaty law.’ That does not
mean that every provision of the Geneva Conventions, for example, imposes direct criminal

INTERNATIONAL CRIMINAL LAW Page 12

 SOURCES OF INTERNATIONAL CRIMINAL LAW

responsibility on individuals. Breach of some of them, for example those regarding the finest
details of the treatment of detainees, would probably not constitute a war crime.
It is only those treaties or provisions of a treaty which are intended to apply directly to an
individual that can give rise to criminal responsibility. The ‘suppression conventions’, for
example, which require States to criminalize conduct such as drug trafficking, hijacking and
terror bombing are not generally regarded as creating individual criminal responsibility of
themselves; the conduct covered by those treaties will be incorporated in national law by
whatever constitutional method is used by the State concerned. Further, if a court is to apply
the terms of a treaty directly to an individual, it will be necessary to show that the prohibited
conduct has taken place in the territory of a State party to the treaty or is otherwise subject to
the law of such a party. The practice of the ICTY has been, with occasional deviations, to
accept that treaties may suffice to found criminal liability. This began with the Tadic9
decision of 1995 and the position was reasserted in the Kordic´ and Čerkez10 appeal. In the
Galic´ case11 the ICTY Appeals Chamber noted that the position of the Tribunal is that
treaties suffice for criminal responsibility, although ‘in practice the International Tribunal
always ascertains that the relevant provision is also declaratory of custom’. This is to adopt a
‘belt and braces’ approach rather than to require a customary basis for war crimes. The
proposition that treaties may found international criminal liability is inherent in the Statute of
the ICTR, which criminalizes violations of Additional Protocol II (not all of which was at the
time considered customary).12

4.2 CUSTOMARY INTERNATIONAL LAW

The ICTY has accepted that when its Statute does not regulate a matter, customary
international law, and general principles, ought to be referred to. Customary international
law, that body of law which derives from the practice of States accompanied by opinio juris
(the belief that what is done is required by or in accordance with law), has the disadvantage
of all unwritten law in that it may be difficult to ascertain its content. This is not always the
case, however, when the customary law originates with a treaty or other written instrument,
for example a General Assembly resolution, which is accepted as reflecting custom, or has
been recognized by a court as such. Nevertheless the use of customary international law in

9
IT-94-1-A
10
IT-95-14/2-A
11
IT-98-29
12
ICTR Statute, Article 4, Report of the Secretary-General Pursuant to Paragraph 5 of Security Council
Resolution 955 (1994) S/1995/134, para. 12.

INTERNATIONAL CRIMINAL LAW Page 13

 SOURCES OF INTERNATIONAL CRIMINAL LAW

international criminal law has sometimes been criticized on the basis that it may be too vague
to found criminal liability or, even, that no law that is unwritten should suffice to found
criminal liability. Suffice it to say for the moment that this was not the position of the
Nuremberg or Tokyo IMTs, nor is it that of the ad hoc Tribunals.
In general, and depending on the circumstances, evidence of state practice and opinion juris
may include:
 Diplomatic correspondence;
 Official policy statements and press releases by governments;
 Executive decisions and practices;
 Opinions of government legal advisors;
 Military manuals;
 Comments on draft statements on international law by the International Law
Commission;
 Authoritative commentaries on treaties;
 National legislation;
 National and international judicial decisions;
 Contents of treaties; and
 The practice of international organizations and their organs, including, for example,
UN General Assembly and Security Council resolutions relating to legal questions.

HIERARCHY BETWEEN THE TREATY LAW, CUSTOMS AND JUS COGENS

Generally, there is no hierarchy between treaty law and custom. Where a rule derived from
one source conflicts with a rule derived from the other, rules of interpretation such as lex
posterior derogate priori ( a later law repeals an earlier law), lex posterior generalis non
derogate prior speciali (a later general law does not repeal an earlier special law) and lex
specialis derogate legi generali ( a special law prevails over a general law) are used for
resolution. As general principles of law are used to fill gaps in treaty and customary law, it is
subordinate to treaty and customary law.
Neither custom nor treaty law may conflict with jus cogens, i.e. peremptory norms of general
international law. As jus cogens reflect the fundamental principles from where there can be
no derogation, treaty law and customary law must always be interpreted consistently with
norms that have attained this peremptory status. Examples of jus cogens are the prohibition of
genocide and torture.

INTERNATIONAL CRIMINAL LAW Page 14

 SOURCES OF INTERNATIONAL CRIMINAL LAW

4.3 GENERAL PRINCIPLES OF LAW

The ICTY has resorted to general principles of law to assist it in its search for applicable
rules of international law. Owing to the differences between international trials and trials at
the national level, the ICTY has been chary of uncritical reliance on general principles taken
from domestic legal systems and a contextual application of them to international trials. That
said, the ICTY and ICTR have both resorted to national laws to assist them in determining
the relevant international law through this source. As was said in the Furundžija13 decision,
however, care must be taken when using such legislation, not to look simply to one of the
major legal systems of the world, as ‘international courts must draw upon the general
concepts and legal institutions common to all the major legal systems of the world’. In
relation to criminal law, general principles of law are not ideal. After all they are, by their
nature, general, and thus tend to be a last resort. Also, as the Erdemovic´case14 showed, at
times there simply is no general enough principle to apply.

As regards the ICC, it is to apply, where the first two categories of law do not provide an
answer:
. . . 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 [the]
Statute and with international law and internationally recognized norms and standards.15
1. Nullum crimen sine lege:- A person shall not be criminally responsible under this
Statute unless the conduct in question constitutes, at the time it takes place, a
crime within the jurisdiction of the Court. The definition of a crime shall be
strictly construed and shall not be extended by analogy. In case of ambiguity, the
definition shall be interpreted in favour of the person being investigated,
prosecuted or convicted.16
2. Nulla poena sine lege;- A person convicted by the Court may be punished, only
in accordance with this statute.17

13
IT-95-17/1-T
14
IT-96-22-A
15
Art. 21(1)(c) of the ICC Statute. This and all other sources of law available to the ICC are qualified by Art.
21(3) which requires application and interpretation of the law to be consistent with internationally recognized
human rights, and without adverse discrimination.
16
Article 22.
17
Article 23.

INTERNATIONAL CRIMINAL LAW Page 15

 SOURCES OF INTERNATIONAL CRIMINAL LAW

3. Non-retroactively ratione personal:- No person shall be responsible under this

statute for conduct prior to the entry into force of the statute. In the event of a
change in the law applicable to a given case prior to final judgment, the law more
favourable to the person being investigated, prosecuted or convicted shall apply.18
4. Individual Criminal responsibility:- Article 25 of the Statute which deals with
individual criminal responsibility provides the following:
(1) The Court shall have jurisdiction over natural persons pursuant to this statute.
(2) A person who commits a crime within the jurisdiction of the Court shall be
individually responsible and liable for punishment in accordance with this Statute.
(3) In accordance with this statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if the person;
(a) Commits such a crime; whether as an individual, jointly with another or through
another person, regardless of whether that other person is responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or
is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission, including providing the means for its
commission;
(d) In any other way contributes to the commission or attempted commission of such
a crime by a group of persons acting with a common purpose.
(e) In respect of the crime of genocide, directly and publicly incites others to commit
genocide.
(4) No provision in this statute relating to individual responsibility shall affect the
responsibility of states under international law.

4.4 JUDICIAL DECISIONS AND LEARNED WRITINGS

The ICTY and ICTR refer to and generally follow their earlier jurisprudence, although they
are not always bound to do so. Trial chambers are not obligated to follow their decisions of
other trial chambers, but they must follow the decisions of the appeal chamber. The appeals
chamber may depart from its own prior decisions, but only in exceptional situations when it is
in the interest of justice to do so.

18
Article 24.

INTERNATIONAL CRIMINAL LAW Page 16

 SOURCES OF INTERNATIONAL CRIMINAL LAW

The ICC may also apply ‘principles and rules of law as interpreted in its previous decisions’.
The ICC is not, however, bound by its previous decisions; it has no equivalent to the common
law principle of stare decisis. The ICTY has frequently had recourse to judicial decisions for
determining issues of law, and has constructed a system of precedents for dealing with its
own jurisprudence. The ICTY and ICTR have had reference to domestic, as well as
international, case law. Domestic case law is a major material source of evidence about
international criminal law. However, a caveat must be entered in this regard. The assertions
of international law in domestic cases can be affected by local idiosyncrasies. These can arise
from the domestic statutes that are being evaluated or applied, or from a court seeing
international criminal law through a distinctly national lens.
Finally, although the writings of scholars are not, in themselves, sources of international
criminal law, it is possible to have recourse to the views of scholars, which at times, have
been highly influential. However, care must always be taken to ensure that the statements
relied on are accurate statements of the law as it stands, rather than a statement of how the
author would like the law to be; this is important, not least because of the nullum crimen sine
lege principle. Also, selection of scholars from only one, or a limited set of, legal tradition(s)
can lead to a skewed view of what an inclusive approach to international criminal law would
require.

INTERNATIONAL CRIMINAL LAW Page 17

 SOURCES OF INTERNATIONAL CRIMINAL LAW

5. CONCLUSION
Treaties or conventions are the most concrete forms of international law. Governments, as
agents of the sovereign states they represent, contract when they sign and ratify treaties or
international conventions to be bound by mutual agreement to the terms of these documents.
Treaties, customs and general principles are stated as the three primary sources; and judicial
decisions and scholarly writings are expressly designated as the subsidiary sources of
international criminal law. Another important source of international law is customary
practice. Over times such customary international law often becomes codified later in treaties
or conventions. The relationship between treaties and international customs is complex. They
co-exist, develop each other and sometimes clash. If there is a clash between a customary rule
and provision of a treaty then, because they are of equal authority (except when the
customary rule involved is of a jus cogens nature) whereupon being superior it will prevail,
the one that is identified as being the lex specialis will prevail. The lex specialis will be
determined contextually.

INTERNATIONAL CRIMINAL LAW Page 18

 SOURCES OF INTERNATIONAL CRIMINAL LAW

6. BIBLIOGRAPHY
 STATUTES

1. ICC Statute
2. ICTR Statute
3. Statute of International Court of Justice.

 BOOKS

1. Claus Kreß, ‘The Crime of Genocide Under International Law’ (2006) 6 ICLR 461 ........... 4
2. Dapo Akande, ‘Sources of International Criminal Law’ in Antonio Cassese et al. (eds.),
The Oxford Companion to International Criminal Justice .
3. Glanville Williams, ‘The Definition of Crime’ (1955) 8 Current Legal Problems 107
4. M. Cherif Bassiouni (ed.), International Criminal Law, 3rd edn (Leiden, 2008) vol. I, 129,
134–5.
5. Oppenheim’s International Law (9th edn, London, 1994) 5–7.

INTERNATIONAL CRIMINAL LAW Page 19