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Part IV The ICC and its Applicable Law, 19 The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function: Reflections on Sources of Law and Interpretative Technique

Joseph Powderly

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: 31 May 2023

Vienna Convention on the Law of Treaties — Geneva Conventions 1949 — Crimes against humanity — Prosecution — Travaux préparatoires

At the Rome Conference, states sought to curtail judicial interpretation through the inclusion of a set of specific disciplining rules, enshrined in the provisions of Articles 21 and 22 of the Rome Statute on the applicable law and nullum crimen sine lege respectively. This chapter examines the law and practice of the ICC with respect to these two provisions, with a view to determining whether or not they are effectively corseting the interpretative freedom of the bench as intended by the drafters of the Rome Statute. It is argued that Article 21 constitutes much more than a mere provision delineating the sources of law, and should be viewed as being akin to a general interpretative provision. It is suggested that Article 22, and in particular the provision of strict construction under Article 22(2), do not necessarily prohibit progressive interpretation and judicial creativity in all circumstances.

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