The research topic on “The Sources of

International Criminal law with Reference to

the Human Rights Principles of Domestic
Criminal Law” for International Criminal law

SUMBITTED TO: SUBMITTED BY:

Dr. Aruna Udita Goel
Assistant Professor 20GSOL2010026
LLM TRIMESTER III
 School of Law, Galgotias University, Gautam Budhh
Nagar, Greater Noida, Uttar Pradesh – 203201
The Sources of International Criminal
Law with Reference to the Human Rights Principles
of Domestic Criminal Law

1 Introduction

The relationship between public international law and domestic criminal

law has greatly contributed to the development of international criminal
law, not only in a historical context, but also in the present situation of
turmoil and conflicting ideologies. The sources of international criminal
law originally derived from public international law, and though they
have passed through a development of their own, they still, of necessity,
depend on this traditional field of law. Therefore, it will be a starting-
point in this article to establish what these sources are.

2 Sources of International Law

By consulting the 1945 Statute of the International Court of Justice

(located in the Hague, Netherlands), annexed to the United Nations
Charter, it can be easily ascertained from Article 38 what sources of law
the International Court is expected to apply. The International Court is
one of the six principal organs of the United Nations. Its function is to
decide in accordance with international law such civil disputes between
States as are submitted to it. The Court does not deal with and decide
criminal cases. In spite of this fact there is a good deal of reason to
assume that the sources purporting to constitute international law
according to the introductory provision of Article 38 also do apply,
though not directly, to criminal cases as minimum standards required for
international criminal liability. This is true, irrespective of the
enforcement model applied, whether the case is tried by a national court,
an international court or the U.N. International Court itself, if it were
given the authority and competence to do so.

The sources listed in Article 38 are the following:

(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) subject to the provisions of Article 59, 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.1

It is not clear whether Article 38 was, at the time of its formulation,

designed to provide an exhaustive list of sources to be applied by the
Court, but today it is hardly considered a complete statement of the
sources of international law.2 There may, however, be a question as to
what is meant by sources, a term not included in the Article itself. The
essential thing is that Article 38 is of vital importance because it provides
a reasonably clear and precise statement of the most significant sources
to be applied, directly by the International Court of Justice and indirectly
by other organs that may decide international disputes. Article 38 has
therefore been accepted as authoritative by the Court and by the States
themselves.

There is no indication of any priority or hierarchy of the sources listed in

Article 38, except for the single reference to subsidiary means in item (d).
There is, in fact, no difficulty if the content of the rules derived from the
various sources is complementary, which will usually be the case.
However, in cases of conflict it must be determined which source shall
prevail. Which does prevail, a later treaty or earlier customary law? And
will subsequent customary law prevail over an earlier but explicit treaty
obligation? The interaction between conventional and customary
international law will be considered below with reference to international
criminal law rules and human rights principles. The fundamental rules of
jus cogens are of crucial importance to the determination of priority. The
general superiority of a later convention to earlier customary law is
displaced by the rules of jus cogens. These are rules of customary
international law that are so fundamental that they cannot be modified

1
A second paragraph, which is of little importance here, states that this provision shall not
prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto.
2
Martin Dixon: Textbook on International Law (1993), pp. 19–20. 3
Martin Dixon: Textbook on International Law (1993), pp. 31–32.
by treaty.3 As regards international criminal law, specifically, the priority
of sources will tend to follow the order of Article 38, that is from 1 (a) to
1 (d).

3 The Sources of International Criminal Law as Compared with the

Sources of Domestic Law

International conventions and international custom are the most

important sources of public international law, and even more so where
international criminal law is concerned. There is a great need to ensure
that individuals prosecuted and tried for international crimes enjoy a fair
degree of fundamental human rights guarantees. There is a great
difference, however, between domestic criminal law and international
criminal law. In the domestic criminal law of any advanced modern
society written sources of law in the form of statutes enacted by the
legislature (statute law) have practically assumed a monopoly status as
the basis for criminal liability and punishment. Although not true in
theory, it is in fact also true for the Common Law countries, which have
already codified most of their judge-made criminal law.

International criminal law presents a quite different picture. Firstly, a

great deal of international conventions now in force can be traced to
earlier customary law, for example a substantial part of the 1949 Geneva
Conventions on war crimes and humanitarian law principles. Secondly,
international criminal liability can be based on customary law as such,
provided the custom applied fulfils the requirements of “a general
practice accepted as law“, as laid down in Article 38 of the Statute of the
International Court of Justice, cf. also Article 3 of the Statute of the
Hague International Criminal Tribunal, which grants equal standing to
the laws and customs of war as a basis for trial and conviction. Thirdly,
but somewhat reluctantly, it appears that even today criminal liability for
international crimes can be based on the unwritten general principles of law
recognized by civilized nations (cf. also the formulation of Article 7.2. of
the European Convention on Human Rights) or by the community of
nations (cf. the formulation of Article 15.2. of the United Nations
International Covenant on Civil and Political Rights).
Already in the Judgment of the Nuremberg International Tribunal
September 30, 1946, the application of the general principles of law
proved to be a difficult issue, particularly with relation to crimes against
humanity and crimes against peace, which were based on rather poor
sources of law until the creation of the Charter of the International
Military Tribunal, signed as an annex to the London Agreement of
August 8, 1945, that is after the war. It was argued on behalf of the
defendants that it is a fundamental principle of all law – international
and domestic – that there can be no conviction or punishment for crime
without a preexistent law (nullum crimen sine lege, nulla poena sine
lege). It was submitted that ex post facto (retroactive) punishment is
abhorrent to the law of all civilized nations, that no sovereign power had
made aggressive war a crime at the time when the alleged criminal acts
were committed, that no statute had defined aggressive war, that no
penalty had been fixed for its commission, and no court had been created
to try and punish offenders. The Tribunal responded to these arguments,
stating:

“In the first place, it is to be observed that the maxim nullum crimen
sine lege is not a limitation of sovereignty, but is in general a
principle of justice. To assert that it is unjust to punish those who in
defiance of treaties and assurances have attacked neighbouring
states without warning is obviously untrue, for in such
circumstances the attacker must know that he is doing wrong, and
so far from it being unjust to punish him, it would be unjust if his
wrong were allowed to go unpunished.”

The ensuing reasons of the Tribunal are concerned with the culpability or
subjective guilt (mens rea) of the defendants, including a presumption of
their knowledge of the wrongful and unlawful conduct, considering the
positions they had occupied in the German Government (res ipsa
loquitur reasoning). We note the heavy emphasis on the key argument of
a principle of justice, which here relates to morality and natural law rather
than to modern human rights guarantees for the defendants. But it
would, even by these standards, hardly have fulfilled the requirements of
morality and justice if mens rea had not been established. The Tribunal
continued by defining the nature of the general principles of law:

“In interpreting the words of the pact, it must be remembered that

international law is not the product of an international legislature,
and that such international agreements as the Pact of Paris have to
deal with general principles of law, and not with administrative
matters of procedure. The law of war is to be found not only in
treaties, but in the customs and practices of states which gradually
obtained universal recognition, and from the general principles of
justice applied by jurists and practised by military courts. This law
is not static, but by continual adaptation follows the needs of a
changing world. Indeed, in many cases treaties do no more than
express and define for more accurate reference the principles of law
already existing.”
The last part of this quotation is of great importance as a response to
sharp criticisms regarding the ex post facto element in the defence
argumentation.
The Report of the U.N. Secretary-General 3 May 1993 (S-25704), having
the function of explanatory notes to the Statute of the Hague
International Tribunal, contains an implicit recognition of the
Nuremberg ruling, cf. item 35:

“The part of conventional humanitarian law which has beyond doubt

become part of international customary law is the law applicable in
armed conflict as embodied in:… and the Charter of the
International Military Tribunal of 8 August 1945.”

The quotation above directly relates to the interactions between the two
principal sources of international law: international conventions and
international custom. But, simultaneously, it reflects the recognition by
the United Nations of the Charter of the Nuremberg International
Military Tribunal as a fully valid legal source in international criminal
law. The Charter, in turn, was inter alia based on the general principles of
law, which, by the Tribunal, were regarded as already existing at the
time when the alleged criminal offences were committed. Furthermore, a
few other remarks in the Report indicate that the sources of law applied
by the Nuremberg Tribunal are, at least by now, practically undisputed
as a legal basis for its judgment. By Resolution 827 (1993), the Security
Council adopted the Report of the Secretary-General and decided to
establish the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia since 1991.

4 The Interrelationship Between Conventional and Customary

International Law

Although conventional and customary international criminal law are

equally binding (no formal priority rule), their legal effects are of
different scope. Strictly speaking, international conventions are only
binding upon those States (and their citizens) which have ratified them.
From this point of view the 1949 Geneva Conventions are the most
international of all conventions, having been ratified by almost every
country in the world. The recurrent lack of conventional binding
authority over all the States involved tends to create serious problems
and prevent necessary rules from coming into force within a reasonable
period of time. Customary law, on the other hand, applies to any State
and to any citizen for that matter, irrespective of whatever conventions
the various States may have ratified, as well as to new States that are not
parties to any conventions and have not contributed to the development
of customary law, either. Customary law is very useful, in case particular
States or even most of them cannot agree on the issue yet to solve. In
some instances, customary law may become a rule of jus cogens, i.e. a
fundamental rule binding on everybody, irrespective of the existence of
other sources of law. Customary law may derive from one or more
conventions, but is also quite often an unwritten source of law from the
beginning, which later on may get codified in international conventions,
as have many customs of war. The conventions differ a lot from the
statutes as their counterparts in domestic law in that their coming into
force does not depend on the consent of the citizens, to whom they may
apply.

In order that a custom may constitute a binding rule for the international
community, but not necessarily a rule of jus cogens, it must fulfil the
requirements embodied in “a general practice accepted as law”, to quote
the wording of Article 38 of the Statute of the International Court of
Justice. The following requirements, known as the elements of customary
law, must be established beyond a reasonable doubt:

a) The existence of State practice, as established by evidence of

actual State activity, statements whether made in the abstract
or not, diplomatic correspondence, U.N. General Assembly
resolutions and so forth.

b) Consistency of practice (constant and uniform).

c) Generality of practice, common to a significant number of

States.

d) Opinio juris, i.e. States must recognize the practice as

binding upon them as law.

As secondary elements, somewhat more ambiguous, may be mentioned

the duration of practice and the practicability (suitability) of a rule based
on custom.3

3
For additional reading, see e.g. Martin Dixon: Textbook on International Law (1993), pp. 24–
30; Gunnar G. Schram: Ágrip af Thjóðarétti (1986), pp. 20–22.
The above mentioned Report of the U.N. Secretary-General contains a
concise remark on the interrelationship between conventional and
customary international law, in a few general comments he made on the
concept of international humanitarian law, which is to be applied by
the Hague International Tribunal (cf. item 33):

“This body of law exists in the form of both conventional law and
customary law. While there is international customary law which is
not laid down in conventions, some of the major conventional
humanitarian law has become part of customary international law.”

In his Report prior to the establishment of the Hague International

Tribunal, the U.N. Secretary-General furthermore expressed the view
that the application of the principle nullum crimen sine lege requires that
the international tribunal should apply rules of international
humanitarian law which are beyond any doubt part of customary law so
that the problem of adherence of some but not all States to specific
conventions does not arise. This would appear to be particularly
important in the context of an international tribunal prosecuting persons
responsible for serious violations of international humanitarian law (cf.
item 34). What exactly constitutes the international humanitarian law to
be applied by the Hague International Tribunal will not be dealt with for
the time being.

5 Sources of International Criminal Law Against the Background of

Human Rights Conventions

A study of the human rights conventions reveals that they place

international law in a position equal to that of national law, as stated in
Article 7.1. of the European Convention on Human Rights and in
Article 15.1. of the U.N. International Covenant on Civil and Political
Rights. It can be taken for granted that international law in this context
will cover international conventions as well as international customary
law, whether written or unwritten. This also means, comparing
paragraphs 1 and 2 of the Articles above, that the (unwritten) general
principles of law recognized by civilized nations or by the community of
nations are not included in paragraph 1. They are reduced to an inferior
position in paragraph 2 of both Articles. These second paragraphs are
formulated as an exception to the principle stated in paragraph 1. It runs
as follows in the European Convention, Art. 7.2:
 “This Article shall not prejudice the trial and punishment of a
person for any act or omission which at the time when it was
committed, was criminal according to the general principles of law
recognized by civilized nations.”

The formulation of Article 15.2. of the International Covenant on Civil

and Political Rights is practically identical except for the final words of
the text, “the community of nations” instead of “civilized nations”. The
first one is obviously better chosen.

Article 7, paragraphs 1 and 2, of the European Convention and the

equivalent provisions of the U.N. Covenant, provide an unmistakable
evidence that these international instruments apply to international
criminal law as well as to national criminal law, irrespective of the
enforcement model used. It is hard to say, whether this is true for these
instruments in all respects. Keeping in mind the rule of exception for the
general principles of law and the risk that such rules may not fulfil the
requirement of the European Court of Human Rights that penal
provisions should be both accessible and foreseeable, it is certainly
possible that the exception rule will disappear from both instruments in
the near future. This would entail that the general principles of law
would not do any more as a basis for criminal liability, even though the
principle of no ex post facto law were recognized, as it is presently in the
above mentioned international instruments.