The Fundamental Rules of the International Legal Order

Tomuschat, Christian; Thouvenin, Jean-Marc

doi:10.1163/ej.9789004149816.i-472

Cited by 71 publications

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“…This principle is completely reliable at domestic level but cannot be easily generalized to the international level. The significance of this principle is more at the international level (Thouvenin, and Tomuschat, 2006).…”

Section: Legality Principle In Positive Law and In Ad Hoc Criminal Courtsmentioning

confidence: 99%

Principle of Legality and Its Relation with Customary Law in International Criminal Law

Barzegarzadeh¹,

Karveh²,

Raisi³

2015

MJSS

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Article 38 of the Statute of the International Court of Justice(ICJ) is considered to be the provider of a list of reliable sources for international law. Paragraph (1) (b) of the Article introduces customary law as the general practice of States members of the international community recognized as law(opinio juris). Therefore, each argument regarding customary international law as a main formal source, should be in line with the requirements of the mentioned Article. Although, before the Statute became binding, the concepts stated in this Article were already enforceable, the concepts may not have the same meaning in modern international criminal law whose main objective to prosecute and punish individual criminals committing humanitarian and human rights violations. The main objective of the present article is to demonstrate the extent the requirements of the establishment of custom in Article 38, i.e State practice and opinio juris, is applicable to criminal customary law. To do this the statutes of international criminal tribunals for former Yugoslavia(ICTY) and Rwanda(ICTR), human rights documents and the case law of the international criminal tribunals are examined. It seems that Article 38 of the Statute cannot be strictly applied to international customary law in criminal cases particularly when it comes to the application of the principle of legality or nullum crimen, nulla poena sine praevia lege poenali as a defence in criminal prosecutions.

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Section: Legality Principle In Positive Law and In Ad Hoc Criminal Courtsmentioning

confidence: 99%