Article 21, Applicable Law

COMMENTARY ON THE ROME STATUTE OF THE ICC, Otto Triffterer, ed., Hart Publishing, 2008

Posted: 18 Sep 2008

See all articles by Margaret M. deGuzman

Margaret M. deGuzman

Temple University - James E. Beasley School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: May 1, 2008

Abstract

As the international community set out to create a permanent international criminal court, one of its pivotal challenges was to identify the applicable law. The well-established principle that defendants must have prior notice of the content of criminal law (nullum crimen sine lege), along with a desire to curtail the discretion afforded international judges, motivated the drafters of the Rome Statute of the ICC to include a substantial amount of detail in that document and in the accompanying Elements of Crime and Rules of Procedure and Evidence. Nonetheless, the drafters recognized the inevitability of lacunae in the nascent body of international criminal law and sought to guide the judges in determining the applicable law when these primary sources proved inadequate.

This book chapter analyzes the Rome Statute's article 21, which sets forth the law applicable to cases before the ICC. The chapter reviews the provision's legislative history and highlights the challenges the Court will likely face as it begins to interpret and apply article 21. In particular, the Court will have to determine whether article 21 empowers it to identify principles that are neither derived from national laws nor part of customary international law, including, for example, natural law principles. Furthermore, the Court will face the difficult task of deciding when it is appropriate to reference the national laws of the State or States that would normally exercise jurisdiction over a particular crime. Article 21's reference to such laws reflects an awkward compromise between States favoring the direct application of relevant national laws and States preferring that the ICC apply only international law. How the Court resolves these and other questions raised in this chapter will have significant implications for the development of international criminal law and procedure.

Keywords: Article 21, International Criminal Court, International Criminal Law, Applicable Law

Suggested Citation

deGuzman, Margaret M., Article 21, Applicable Law (May 1, 2008). COMMENTARY ON THE ROME STATUTE OF THE ICC, Otto Triffterer, ed., Hart Publishing, 2008, Available at SSRN: https://ssrn.com/abstract=1268928

Margaret M. DeGuzman (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
1,190
PlumX Metrics