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Part IV The ICC and its Applicable Law, 18 Article 21 and the Hierarchy of Sources of Law before the ICC

Gilbert Bitti

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 02 June 2023

Applicable law — International criminal law, conduct of proceedings — Prosecution — Armed conflict, international — Gross violations

Article 21 of the ICC Statute is unique in the arena of international criminal justice. It introduces a differentiated hierarchy in relation to sources of law, yet it remains one of the most ambiguous provisions of the Statute. This chapter investigates how the ICC has interpreted this provision, and what approaches the Court has adopted in relation to the interpretation and application of different sources of law, including ‘internationally recognized human rights’ under Article 21(3). It contrasts the internal law of the ICC with external sources, and argues that ICC Chambers should use to their full extent the possibility given to them by Article 21(3), rather than trying to import procedures from the ad hoc Tribunals or from some domestic jurisdictions.

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