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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume II, s.10 Final Analysis and Suggestions, 50 The ICC and the Interaction of International and National Legal Systems

Mireille Delmas-Marty

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Jurisdiction

(p. 1915) 50  The ICC and the Interaction of International and National Legal Systems*

‘Complementarity is central to the whole idea of the ICC’1 … which does not mean that there is agreement on the exact meaning of this term. By introducing the principle of complementarity in its Preamble, then repeating it in Article 1, the Rome Statute seems, above all, determined to preserve the jurisdiction of national criminal courts and limit that of the International Criminal Court (the ‘ICC’). Article 17(1)(a) confirms that a case having been investigated or prosecuted by a State must be determined to be inadmissible unless the decision resulted from the ‘unwillingness or inability of the State genuinely to prosecute’.

Yet this complementarity means neither the absolute autonomy of national and international systems of criminal justice, nor the strict subordination of one to the other. As a result, it is difficult to understand the whole system by reference to traditional concepts of legal systems based on hierarchical principles. As symbolized by Kelsen’s ‘pyramid’,2 legal systems are composed of a number of levels, inferior norms being subordinated to higher norms, reaching up to a supposedly fundamental norm which founds the unity of the entire system. This legal construct allows of only two approaches to the relationship between national and (p. 1916) international law: monism, i.e. a global legal system to which all others are subordinated; or dualism, i.e. national legal systems conceived of as a series of separate, independent pyramids.

In practice, it appears that neither monism nor dualism can fully account for current developments in international criminal justice.3 Monism remains utopian, as shown by the subsidiary nature of the ICC’s jurisdiction, a retreat from the primacy of the two International Criminal Tribunals (‘ICTs’). Yet it would be erroneous to think that dualism is implicitly included in the principle of complementarity, as this would imply the radical separation of crimes tried by national courts and the ICC. In reality, dualism explains neither the pre-eminence of international criminal law over national law, nor its increasing influence due to the globalization of national criminal courts. Accordingly, I would like to posit the emergence of a third model that avoids the monism/dualism debate by substituting normative interaction for hierarchical subordination, leading towards a legal system that might be called ‘pluralist’.4

This interaction may be described by reference to positive law concepts, which already imply interactive practices. However, observation of these practices also allows a more theoretical reflection concerning the processes which could create the conditions for equitable interaction.

I. Concepts that Imply Interactive Practices

The situation is complex for two reasons. On the one hand, the sources of international criminal law refer back to national law, both in the framework of general principles of law and through international custom. On the other hand, the extension of national jurisdiction, through the application of both traditional rules (territorial and active or passive personal jurisdiction) and a fortiori the principle of universal jurisdiction, implies partial integration of international law by national courts, although the extent of that integration varies considerably depending on the country and the crimes in question.

A. Sources of International Criminal Law and the Reference to National Law

The reference to national law appears in the sources of both public international law5 and the sources specific to international criminal law, whether under the heading of general principles of law or of international custom.

(p. 1917) The concept of general principles of law appears, in a relatively obsolete form, after the reference to general or particular international conventions and international custom in Article 38 of the ICJ Statute: ‘the general principles of law recognized by “civilized nations” ’ (Article 38(1)(c) ). In a more appropriate form, Article 15(2) of the International Covenant on Civil and Political Rights, another general source expressly quoted by the UN Secretary-General in the Report dated 3 May 1993 which laid the foundations for the creation of the first ICT and set out its Draft Statute, makes a wider reference to the general principles of law recognized by ‘the community of nations’. Whatever the terms used, the concept of general principles is not solely concerned with principles of international law. Rather, it refers back to national law, thereby introducing the need for a comparative study, albeit in a supplementary manner, where international law is vague or incomplete. Nevertheless, as confirmed in the following paragraph of the article, which covers ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations’, only case law and international doctrine are relegated to the status of ‘subsidiary means for the determination of rules of law’ (Article 38(1)(d) ).

ICT case law already abounds with examples of general principles derived from the search for a ‘common denominator’ between legal systems. This is true for both substantive criminal law issues (such as criminal participation, the definition of mitigating circumstances, and the constitutive elements of rape), and procedural issues such as the rules of evidence or the guilty plea and its possible consequences for plea bargaining. Although, in all of these cases, the ICTs have conducted a close examination of various national systems,6 this comparative approach remains incomplete and ambiguous, leading to suspicion that it serves to legitimate decisions a posteriori rather than as a veritable interpretative tool,7 or even that it will lead to the domination of a single system under cover of comparative principles.8

It is true that the ICC Statute is more detailed than those of the ICTs, but it is likely that loopholes and imprecision will remain for some time. The future ICC will have to deal with this by reference to the rules of interpretation set out in its (p. 1918) Statute. Article 21(1) of the ICC Statute, which is particularly specific in this respect, goes beyond confirming the applicability of the general sources of international law to expressly mention, as a secondary source (‘failing that’), the ‘general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards’. It will be necessary, undoubtedly, for the Court to be provided with the means of discovering what exactly the ‘national laws of legal systems of the world’ are, so as to verify their conformity with ‘international law and internationally recognized norms and standards’. This is all the more so since this knowledge is also relevant to the definition of customary law.

As for customary law, while the ICC Statute does not refer to it as such, the reference to the ‘principles and rules of international law’ clearly seems to encompass it. Further, it is axiomatic that national case law contributes to the formation of international custom as evidence of State practice. There are many examples, especially as regards immunity. As early as the sixteenth century, customary law developed the principle of sovereign criminal immunity in the absence of international conventions, the latter being limited to the gradual introduction of exceptions to the customary rule. However, in Furundžija, the ICTY, when holding that individuals are individually responsible regardless of their official capacity, stated that the text of the Statute excluding immunity (Article 7(2) ICTY and 6(2) ICTR) is ‘indisputably declaratory of customary international law’.9 Regardless of whether this new custom is based on the specificity of international crimes or the extension of the right to a fair trial to include the victims,10 it quite clearly seems to incorporate the evolution of internal case law as an important element, as much for extradition proceedings (Pinochet), as for the execution of an arrest warrant (Yerodia Ndombassi), the confiscation of Swiss financial holdings (Milošević), and criminal investigations leading to trial and sentencing (Noriega, Bouterse, Hissène Habré, Qadhafi). Despite hesitation by national courts, the recent case law of some of them has been relied upon as an argument in support of the existence of a new international custom, confirmed by Article 27(1) of the ICC Statute.

This circular process, evocative of the ‘tangled hierarchies and strange loops’11 which substitute a new paradigm for the hierarchy of norms,12 is reinforced by the (p. 1919) effects of the progressive integration of international law which accompanies the widening jurisdiction of national courts.

B. Jurisdiction of National Courts and the Integration of International Law

The ICC Statute does not expressly impose the principle of universal jurisdiction over the crimes within its purview, given that only some of them, such as torture (indirectly)13 and grave breaches of the Geneva Conventions, are already subject to compulsory universal jurisdiction14 by virtue of international treaty law. Nevertheless, its Preamble clearly makes reference to universal ethics when it asserts that the most serious crimes, ‘of concern to the international community as a whole’, must not remain unpunished; that their ‘effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’; and furthermore, that it is the ‘duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. It is thus possible, and indeed desirable, that the Rome Statute urge the countries directly concerned by such crimes to exercise territorial jurisdiction, but it also ‘provides an impetus for other States to prosecute an alleged offender on the basis of other jurisdictional principles, in particular the universality principle’.15

Currently, national jurisdiction is based either on traditional rules (territorial and active or passive personal jurisdiction),16 or on the principle of universal jurisdiction.17 State practice varies considerably from one legal system to another, such that comparative studies tend to show its extreme disparity. This disparity is widened, independently of the ratification of the relevant international texts, by the fact that some States do not fulfil their conventional commitments by failing to adopt the necessary internal application provisions (Senegal, for example18), while others go beyond their commitments. This would seem to be the case for Spain, where universal jurisdiction, specifically provided for in the criminal code as regards genocide, combined with a broad interpretation of the 1948 Convention, has led to the application of a wider concept of universal jurisdiction than contemplated in the international norm.19 Belgium also arrives at this result through the combined effects of the law of 1999 (modifying that of 1993) (p. 1920) granting universal jurisdiction20 and an extremely wide law allowing all victims of international crimes to intervene in the proceedings (as parties civiles).

However, the degree of internationalization of national law is not limited to jurisdictional rules. For example, it also depends on the reliance on international law in relation to questions of statutes of limitation, amnesty and immunity. As P. M. Dupuy has clearly underscored, ‘even though the problem of the immunity from jurisdiction of those responsible for State policy and that of universal jurisdiction are quite distinct, the widened acceptance of the latter principle will, to a great extent, reduce the field of application of the former’.21 The House of Lords has also made this connection, in its decision of 24 March 1999, in which it held that the criminal immunity of a former Head of State would be incompatible with the universal jurisdiction introduced by the 1984 Convention against Torture.22

It should be noted, however, that the same solution may result from either national law or international law and that a principle such as the absence of any statute of limitations (imprescriptibilité) for this type of crime, which is derived from international law in most civil-law systems, applies as an internal rule in common-law and Islamic law systems. Moreover, the phenomenon of ‘re-nationalization’ or ‘internalization’ of international law must be taken into account whenever rules transposed from international law into national law are subject to autonomous interpretation by national courts (whether wider or narrower).23

At the same time, it must not be forgotten that national courts may also integrate international law on the basis of traditional heads of jurisdiction, whether by reference to definitions under international criminal law in support of the interpretation of national law24 or through concepts drawn from human rights instruments, in order to extend their jurisdiction or exclude the applicability of statutes of limitation, amnesties, and immunities in the name of the victim’s right to a fair trial.25

(p. 1921) Thus, the principal national models for the transposition of international law into internal law, which determine the relationship between international and national courts, are to be found at the meeting point of the axes of jurisdiction and applicable law.

Four models may be distinguished:26 at the two extremes, a ‘pure national’ model (predominantly traditional jurisdiction and national law), typical of the practice in many Islamic countries, for example, but also the United States, and a ‘pure international’ model (universal jurisdiction and predominantly international norms), such as Belgium and Germany once its code of international crimes (Gesetz zur Einführung des Völkerstrafgesetzbuches) is adopted.27 Between these two extremes, there are two intermediate models: an ‘integrated national’ form (traditional jurisdiction but predominantly international norms), which brings Argentina to mind; and a ‘moderate international’ form (universal jurisdiction but predominantly national norms), including, in particular, France and most European States.

Nevertheless, comparative law studies show that, in reality, State practice may only rarely be identified with a single model. The uncertainty of international law and the evolution of national legislation, often decided on a case by case basis, mean that most of the systems in force simultaneously relate to different models depending on whether it is a question of defining crimes, of criminal responsibility and the validity of possible grounds precluding jurisdiction (such as statutes of limitation, amnesty, and immunities), or even of procedural rules.

The relationship between national and international courts may, however, be clarified through such modelling, despite its approximations. The ‘pure national’ model, founded on the refusal of international norms and the maintenance of traditional jurisdiction, has several inherent risks. In the first place, it may favour ‘victor’s justice’,28 since national rules do not provide serious guarantees, in times of conflict, of the conditions for fair trial by an impartial and independent court, especially when the ordinary courts are replaced by emergency tribunals such as the Order by President Bush dated 13 November 2001 on the creation of ad hoc military commissions to try, in the United States, foreigners suspected of the (p. 1922) 11 September 2001 attacks.29 Where those responsible are, and remain in power, there is also the risk of a sort of ‘inverse subsidiarity’ in favour of the ICC. Indeed, by maintaining the validity of statutes of limitation, amnesty, and immunity, as well as traditional jurisdictional limits, the State in question demonstrates that it is unwilling or unable ‘genuinely to carry out the investigation or prosecution’, within the meaning of Article 17 of the ICC Statute.30 As D. Vandermeersch points out, ‘if one were to accept that, in some circumstances, an immunity constitutes an obstacle to prosecution under national law, this would have an impact on the jurisdiction of the ICC: the Court would no longer have complementary jurisdiction with those States, as it would become exclusive with regard to persons claiming immunity from the national courts which had decided to prosecute them’.31

Of course, the Court must also have jurisdiction under the restrictive conditions of its Statute. As B. Swart notes, ‘the situations in which the Court has no jurisdiction coincide, to a great extent, with those in which traditional criteria of jurisdiction do not allow a State to punish international crime committed outside its territory’.32

The contrast is even clearer, however, with the opposing ‘pure international’ model, which suffers from a completely different risk: that of worsening the inequality between States and favouring a sort of ‘forum shopping’ whereby the victims choose to lodge their complaints in countries having adopted universal jurisdiction and international norms.33 The current flood of complaints by civil parties asking to intervene in criminal proceedings in Belgium is starting to show the perverse effects of overextended, or even incompatible national concepts. The danger of leaving each State master of its own game is increased inequality between States that impose rules on others (for example the refusal of immunity) while excluding it for themselves, and States which are subjected to these rules without having the political and judicial means to require their respect by others. In this respect, the (p. 1923) existence of intermediate models leaves open the possibility of harmonizing national practice. On the one hand, the progressive integration of international norms (the ‘integrated national’ model) should also prepare the national courts to become guardians of a future common law. On the other hand, the implementation of universal jurisdiction without the integration of international norms (the ‘moderate international’ model) is likely to be disappointing, unless it is seen as a simple transitional phase.

In summary, the elaboration of the international criminal justice of the future may be facilitated by the success of these intermediate models, provided that the transition is not seen as an end in itself, and that appropriate control is exercised over the processes which could create the conditions for equitable interaction.

II. The Processes Creating the Conditions for Equitable Interaction

As the above examples demonstrate, when interaction replaces the hierarchy of norms, it involves a certain number of risks that are hard for States and individuals to accept and may even be inequitable. Accordingly, practical observation alone cannot legitimate what appears to be a veritable epistemological rupture. This rupture must also be subjected to theoretical analysis, as regards both the elaboration of international norms through hybridization, and the implementation of national law through a veritable process of harmonization.

A. Hybridization

The expression, ‘common denominator’, widely employed by international judges (both at the ICTs and the ECHR), is but the first step in an extremely complex process. In practice, one rarely observes spontaneous convergence between different legal systems. Often at the crossroads of disparate elements or systems, including national laws but also international instruments, hybridization goes beyond simple juxtaposition, requiring a genuine creative search for a synthesis of, or balance between, differing systems. Only then can it avoid the tendency of judges either to legitimate a posteriori a solution they have already chosen, or to favour a dominant legal system to the detriment of any real synthesis.

It should be noted that the Rome Treaty has not granted the judges of the future ICC the power to adopt their own rules of procedure and evidence, as is the case for the ICT judges, preferring to confer this responsibility on a Preparatory Commission.34 Some see a certain distrust of judges in this change, but the (p. 1924) formula does have the advantage of ensuring the necessary distinction between elaboration and application of these rules. The work of the Preparatory Commission shows ‘that there is no direct link between procedural models (adversarial v. inquisitorial) and safeguards for human rights’, resulting as it does from an attempt at hybridization which the ‘board of editors’ of this book praise in particularly eulogistic terms: ‘the ICC Statute indeed represents an admirable attempt to achieve the right mixture—the golden mean—between the inquisitorial and accusatorial systems’.35 This seems to echo the ICTY’s insistence on the concept of equilibrium: ‘The general philosophy of the criminal procedure of the International Tribunal aims at maintaining a balance between the accusatory procedure of the common law systems and the inquisitorial procedure of the civil law systems’.36 It also accentuates the difficulty in interpreting rules taken from provisions which ‘consist of a fusion and synthesis of two dominant legal traditions, these being the common law system, … and the civil law system’.37 Following, therefore, is a rapid evaluation of this method, including some specific examples of its implementation.

The method itself needs to be explained, as it should guide judges in their interpretative role. Above all, it is clear that, at present, hybridization is essentially limited to ‘Western’ law, as if the concept of ‘civilized nations’ had resurfaced. This is true of the Statutes of ICTs and the ICC, as well as their rules of procedure and evidence and the drafts prepared by the Preparatory Commission. The danger is that other legal traditions will be reduced to progressive acculturation. This disadvantage is not only political but technical, as an encounter between two systems is more likely to become a confrontation aimed at dominating each other than are encounters between numerous partners. It seems clear, from some of the remarks made by ICT judges, that they accept the idea of a predominant influence, observing that there is ‘little doubt about the predominating influence of the common law system and the impact of the accusatory procedure in the majority of the Articles of the Statute and the Rules’ (emphasis added).38

It should be remembered that the question had already been raised in the Erdemović case by President Cassese,39 who put forward three reasons for preferring ‘hybridization’-type interaction. First, reliance on national law is not justified if it is not explicitly or implicitly required. Secondly, international criminal procedure results from ‘the gradual decanting of national criminal concepts and rules into the (p. 1925) international receptacle’. Not being the result of a uniform corpus of law, but rather the ‘amalgamation of two different legal systems, that obtaining in common-law countries and the system prevailing in countries of civil-law’, any tendency for the philosophy underlying one legal system to dominate the other at the international level should be excluded, as should the simple juxtaposition of elements belonging to the two systems. Rather, international criminal procedure tends to ‘combine and fuse’ the two systems. Finally, any attempt ‘mechanically to incorporate’ national legal constructs must be avoided, since it could ‘alter or distort the specificity of these proceedings’ (this specificity results from the inter-State context, leading to a different organization notable for its absence of coercive powers).

For these reasons, President Cassese considers that the judge should determine whether concepts drawn from national law, once transposed to the international level, have acquired a new dimension, independent from their original meaning. If this is not the case, the judge must make any adaptations or adjustments necessary to satisfy the characteristic features of international proceedings, including those of international instruments for the protection of human rights. Only then, in his opinion, would the judge be ‘warranted to draw upon national legislation and case-law and apply the national legal construct or terms as they are conceived and interpreted in the national context’.

This method, which might be described as a process of ‘combination-fusion’ which generates a legal logic ‘that is qualitatively different from that of each of the two national criminal systems’, should be widened in future to encompass other legal systems, so as to avoid any danger of domination, due to the divergence between national systems. It should also be systematized with reference to guiding principles laying down technical rules destined to give them full effect, which should ensure that this broadening does not reduce the system to its lowest common denominator. Illustrated in the European sphere by the draft ‘Corpus Juris’,40 this hybridization can only be a progressive, evolutionary process.41 This is even clearer at the global level, where the difficulties are greater, as a few examples of implementation will show.

The implementation of the hybridization method is difficult, as regards both substantial and procedural problems. As for the latter, it would seem that the guiding principles may be considered to stem from the concept of the fair trial, as formulated by international instruments for the protection of human rights, (p. 1926) especially the United Nations Covenant on Civil and Political Rights, but also by regional instruments, and taking account of the fact that some differences compared with national systems may be explained by the specificity of international criminal justice. As underlined by the ICTY, ‘trials before the International Tribunal are conducted before professional judges, who by virtue of their training and experience are able to consider each piece of evidence which has been admitted and determine its appropriate weight’.42

If one compares the ICC Statute with that of the ICTs (Statute and Rules, already amended at least twenty times), three observations may be made.

First, many of the solutions gradually elucidated by the ICTs have been transposed to the ICC, for example as regards guilty pleas (Articles 64(2) and 65), or the hearing of witnesses43 (see in particular Article 64(6)(b), which reaffirms that the judges, not the parties, conduct the trial).

Secondly, some aspects of the ICC Statute are progressive as compared with the ICTs. For example, equality of arms is strengthened in favour of the defence. When Article 48 of the Statute is taken together with Article 16 of the Draft Agreement on the Privileges and Immunities of the Court, it would seem that the latter ‘presents an important advance when compared with the position of counsel before the ad hoc tribunals’.44 In addition, the role of the judge is expanded. The ICC Statute, like that of the ICTs, does not include an investigating judge, to whom the inquisitorial model gives both investigative and (some) judicial authority, such as decisions concerning pre-trial detention. Nevertheless, the ICC does not place the entire burden of seeking evidence on the private parties, as would be the case in a purely accusatorial system. This has led to the creation of a Preliminary Chamber with a central role (Articles 15, 56, 57, and 58). Without going as far as instituting a veritable investigating judge as understood within inquisitorial tradition, this formula builds upon the introduction by the ICTs, initially through practice, of status conferences, later confirmed by an amendment to the Rules adopted in July 1998 (Rule 65 ter). As is currently the case for status conference judges, the future Preliminary Chamber will not itself seek evidence, a power conferred on the Prosecutor, but it will ensure respect for the rules of admissibility. It could be said, to employ the ICTY description of the purpose of status conferences (which emphasizes their synthetic nature), that the Chamber (p. 1927) will play the role of the ‘confirming judge to the grand jury (or committing magistrate) in the common law system or to the juge d’instruction in some civil law systems’ (Brdjanin, para. 13).45

This solves the delicate problem of the case file which, in civil-law systems, is prepared at the investigation stage and transmitted to the trial court in order to prepare the hearing, whereas such files are excluded at common law in favour of purely oral proceedings. Before the ICTs, first in practice then under the Rules (Rules 73bis and ter), prior to the commencement of the trial, ‘the Trial Chamber shall hold a Pre-Trial Conference’. During this conference, it requests the parties to prepare a sort of case file, including, inter alia, a list of witnesses and a summary of the facts relating to their testimony, an indication of the points of agreement and disagreement between the parties and a list of prosecution evidence and documents to be presented. Nevertheless, given the principle of oral debate, according to which ‘witnesses shall be heard directly by the Chambers’ (Article 90A), the question of hearsay evidence was not clearly resolved in the Rules. Confirming ICT practice, several amendments to the Rules have now admitted indirect evidence in order to expedite proceedings. The amendment of 3–4 December 1998 inserts a provision on the admissibility of documents in order to corroborate oral testimony (Article 94ter), whereas a later amendment to Rule 71 on 12 April 2001 eliminated the requirement for ‘exceptional circumstances’ justifying depositions by witnesses before ‘presiding officers’, and replaced Article 94ter with a general provision under which such depositions may be ordered, ‘proprio motu or at the request of a party, … whether or not the person whose deposition is sought is able physically to appear before the Tribunal to give evidence’ (Rule 71 (A) ). An amendment has even introduced, as a general rule of evidence, the power for judges to receive a witnesses deposition orally or in writing ‘where the interests of justice allow’ (Rule 89(F), thus overturning the original rule in Rule 90(A). This approach seems to be open for the ICC (Article 64(6)(b) ), subject to future practice.

Thirdly, there are some new points in the ICC Statute, as regards the acceptance of participation by victims (Article 68(3) ), for example, who may be represented by counsel, thus approaching the position of parties civiles in civil-law systems. However, they may only intervene through being joined to the public action, which remains optional, and cannot require an investigation to be commenced. This is one point that the judges will undoubtedly be required to consolidate by interpretation, because hybridization must always be conceived of as work in progress.

This observation is even more relevant for the process of harmonization that will clearly be necessary when cases are tried by national courts in application of the principle of complementarity.

(p. 1928) B. Harmonization

As P.-M. Dupuy points out, with regard to immunity, State practice is ‘still far from being unified’.46 In reality, unification, which implies strictly identical rules, is not really necessary as far as national systems are concerned. Harmonization, however, understood as a process of rapprochement based on common guiding principles, with the aim of rendering national systems more compatible, appears not only desirable, but absolutely indispensable in order to avoid the risk of both a victor’s justice more akin to revenge than to justice, and an inequality between States which would favour forum shopping.

The key to harmonization is the acceptance of a State’s margin of appreciation, guaranteeing a certain degree of discretion, and the organization of a supervisory mechanism avoiding excessive divergence from that margin.

The State’s margin of appreciation implies reference to guiding principles, the latter thus being a potential source of overall coherence with the process of hybridization. The difference is that hybridization uses these principles to elaborate common international rules, whereas harmonization is limited to the rapprochement of national laws around these principles, without claiming to impose identical rules. Rather, it accepts differences between national laws by virtue of the State’s margin of appreciation. This concept has been developed through the case law of the ECHR, in those cases where measures restricting, or even derogating from, human rights are allowed by the European Convention, provided that they are ‘necessary in a democratic society’, or of a temporary nature, in exceptional circumstances, ‘to the extent strictly required by the exigencies of the situation’. In other words, States may invoke public order in support of limitations on fundamental rights, and the ECHR considers that national courts are generally best placed to evaluate such limitations. However, the Court still explicitly reserves itself the authority to review State exercise of discretion against this, variable, threshold of compatibility in order to proscribe excessive divergence.47 It should be noted that the idea of a margin of appreciation also, implicitly, underlies the practice of transposing international norms into national law.48

(p. 1929) While the principle of a State margin is a source of indispensable flexibility, the absence of control leads, in practice, to the exclusion of any real harmonization, with the risk of arriving at paradoxical situations, both as regards the conditions for criminal responsibility and sentencing. In Rwanda, for example, suspects tried before the national courts may incur the death penalty whereas the a priori more serious crimes tried before the ICTR can only lead to life imprisonment.49

As regards control of this margin, two approaches could be explored.

On the one hand, the human rights approach (the instrumental role of which may be seen in Europe, Latin America, and even in Africa, once the Court provided for in the Additional Protocol to the African Charter on Human and Peoples’ Rights is created), should lead to the harmonization of State practice in conformity with international law, whether in relation to the definition of procedural or substantial rules in cases where international law is vague or incomplete, or the limitation of the causes of failure of criminal responsibility (statutes of limitations, amnesty, immunity). This type of control should continue to be developed, both within the United Nations (creation of a real human rights court to supervise implementation of the Covenants) and at the regional level, but also by pressing States to ratify and complete the existing instruments. This is a question of political will, although pressure from citizens and NGOs can rock the passivity, or even bad will of States in such matters.

On the other hand, an approach based on the recourse to interpretative opinions could be developed, either before the ICJ, thus reinforcing its role in criminal matters, or before the future ICC, the criminal specialization of which would facilitate this task. In any case, faced with the uncertainty of international law and the diversity of national systems, the aim would be to elucidate existing practice, clarify the interpretation of conventional law and the evolution of international custom, and avoid different or even contradictory interpretations.

In conclusion, I would like to insist on the innovative nature, both politically and legally, of the processes being developed in line with the principle of complementarity, which temper the principle of normative hierarchy in favour of the interaction we have attempted to describe above. Understood correctly, this interaction would allow the introduction of a pluralist, and not hegemonic, common law.

We should avoid freezing this evolution too rapidly, by returning to the traditional legal order strictly separating international law and national laws, instead of seeking new methods and concepts allowing us to accompany it:

For last year’s words belong to last year’s language And next year’s words await another voice.50(p. 1930)

Footnotes:

*  Translated by David Boyle.

1  See Ch. 49, III. above.

2  H. Kelsen, Théorie pure du droit, French translation of the second edition of Reine Rechtslehre, par Charles Eisenman (1962), 316.

3  For an analysis in another area, see E. Lambert, Les Effets des arrêts de la CEDH: Contribution à une approche pluraliste du droit européen des droits de l’homme (1999).

4  See Pour un droit commun (1994); in English: Towards a Truly Common Law: Europe as a Laboratory for Legal Pluralism (2002).

5  See C. Kress, ‘Zur Methode der Rechtsfindung im Allgemeinen Teil des Völkerstrafrechts’, 111 Zeitschrift für die gesamte Strafrechtswissenschaft (1999) 597 ff.; B. Simma and A. Paulus, ‘Le Rôle relarif des différentes sources du droit international pénal’, in H. Asencio, E. Decaux, and A. Pellet (eds.), Droit international pénal (2000) 55–69: ‘The sources of international criminal law are identical to those of general international law.’

6  See A. Cassese, ‘The Contribution of the International Criminal Tribunal for the Former Yugoslavia to the Ascertainment of General Principles of Law Recognized by the Community of Nations’, in Y. See and T. Wang (eds.), International Law in the Post-Cold War World: Essays in Memory of Li Haopei (2001) 43–55.

7  For a critical analysis of use of the term and the danger of a posteriori legitimization, or even the use of a system as a means of domination, see M. Delmas-Marty, ‘L’Influence du droit comparé sur l’activité des Tribunaux pénaux internationaux’, in A. Cassese and M. Delmas-Marty (eds.), Crimes internationaux et jurisdictions internationales (2002) 95.

8  On the conflict between common-law and so-called civil-law traditions, see the examples in ‘L’Influence du droit comparé’, supra note 7.

9  ICTY, Trial Chamber II, Judgment, 10 December 1998, para. 140.

10  See M. Delmas-Marty, ‘La responsibilité pénale en échec’, in A. Cassese and M. Delmas-Marty (eds.), Juridictions nationales et crimes internationaux (2002).

11  See Towards a Truly Common Law, supra note 4, at 65 and following.

12  See F. Ost and M. van de Kerchove, ‘De la pyramide aux réseaux’ in Revue interdisciplinaire d’études juridique (2000) 1.

13  To the extent that it is included within the actus reus of other crimes coming within the Court’s jurisdiction.

14  See D. Vandermeersch, ‘La Compétence universelle’, in Cassese and Delmas-Marty (eds.), supra note 10, 589.

15  See Ch. 49 above.

16  See B. Swart, ‘La place des critères traditionnels de compétence dans la poursuite des crimes internationaux’, in Cassese and Delmas-Marty (eds.), supra note 10, 567.

17  See Vandermeersch, supra note 14.

18  See A. Cissé, ‘Droit sénégalais’, in Cassese and Delmas-Marty (eds.), supra note 10, 435.

19  See V. Buck, ‘Droit espagnol’, in Cassese and Delmas-Marty (eds.), supra note 10, 117; for other examples, see M. Delmas-Marry (ed.), Les Processus d’internationalisation du droit pénal, Vol. VII, Criminalité économique et atteints à la dignité de la personne (2000).

20  See D. Vandermeersch, ‘Droit belge’, in Cassese and Delmas-Marty (eds.), supra note 10, 69.

21  P.-M. Dupuy, ‘Crimes et immunités’, 103 RGDIP(1999) 294.

22  Nevertheless, the ambit of the decision is limited by the conditions it requires (a State Party to Conventions providing for universal jurisdiction, the entry into force of these Conventions, and lastly the commission of crimes defined by these Conventions); but also because it only deals with the question of immunities; on this approach, see S.Villalpando, ‘L’Affaire Pinochet: beaucoup de bruit pour rien? L’Apport du droit international de la décision de la Chambre des Lords du 24 mars 1999’, 104 RGDIP (2000) at 417.

23  See Vandermeersch, supra note 14 and Delmas-Marty, supra note 19.

24  See for Germany: Federal Constitutional Court, Jorgić, 2 BvR 1290/99, decision of 30 April 1999 (for a comment see G. Werle, Juristenzeitung (1999) 1181). Concerning the definition of genocide, see J. Lelieur, in Delmas-Marty (ed.), supra note 19, at 229. See also K. Ambos and S. Wirth, ‘Genocide and War Crimes in the former Yugoslavia before German Criminal Courts’, in H. Fischer, C. Kress, S. Lüder (eds.), International and National Prosecution of Crimes under International Law (2000) 769.

25  See A. Alvarez, ‘Droit argentin’, in Cassese and Delmas-Marty (eds.), supra note 10, 295. See also Delmas-Marty, supra note 10.

26  ‘L’Influence du droit comparé’ and the Conclusion générale in Cassese and Delmas-Marty (eds.), supra note 7; compare with the model proposed by E. Fronza and N. Guillou, in Delmas-Marty (ed.), supra note 19, 189–220, esp. 213 and following.

27  See Bundesrat, Gesetzentwurf der Bundesregierung (Drucksache 29/02), 18.01.2002, Entwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches, at 1–89. See C. Kress, Vom Nutzen eines deutschen Völkerstrafgesetzbuchs (2000) and G, Werle, ‘Konturen eines deutschen Völkerstrafrechts’, in Juristenzeitung (2001) 885.

28  M. Cosnard, ‘Quelques observations sur les décisions de la chambre des Lords des 26 novembre 1998 et 24 mars 1999 dans l’affaire Pinochet’, 103 RGDIP(1999) at 309.

29  See M. Delmas-Marty, ‘Global Crime Calls for Global Justice’, in The Jurisprudence of War: The Legal Aftermath of September 11, an International Conference sponsored jointly by the Columbia University and New York University Schools of Law (George Fletcher and Stephen Holmes, organizers), 15–16 February 2002, to be published; Pierre-Richard Prosper, US Ambassador-at-Large for War Crimes Issues, ‘Perspectives on the Establishment of Credible, Effective Accountability Mechanisms to Bring Violators of International Humanitarian Law to Justice’, The Peace Palace, The Hague, Netherlands, 19 December 2001; and Human Rights Watch, Background Paper on the Geneva Conventions and Persons Held by U.S. Forces, 29 January 2002 <http://www.hrw.org/backgrounder/usa/pow-bck.htm>.

30  See K. I. Lee, ‘Les États-Unis d’Amérique et le Canada’, in Cassese and Delmas-Marty (eds.), supra note 10, 459, which clearly notes that, should the United States wish to avoid their own citizens being prosecuted by the future ICC, they should increase their capacity to conduct national trials.

31  Vandermeersch, supra note 20. See also Ch. 24.3 above. The ICJ’s recent ruling in Congo v. Belgium (Judgment of 14 February 2002) could have the same consequence.

32  See Swart, supra note 16.

33  See further J.-F. Flauss, ‘Droit des immunités et protection internationale des droits de l’homme’, Rev. Suisse de droit international et de droit européen (2000) 304.

34  See above Ch. 49, VII., Conclusion.

35  See Ch. 49, V.

36  ICTY, Delalić et al., Trial Chamber II, Decision on the Prosecutor’s Motion for an Order requiring Advance Disclosure of Witnesses by the Defence, 4 February 1998, para. 20.

37  ICTY, Delalić et al., Trial Judgment, 16 November 1998, para. 159.

38  ICTY, Delalić et al., 4 February 1998, supra note 36.

39  See the Dissenting Opinion of President Cassese, in the Erdemović case: ICTY, Appeal Judgment, 7 October 1997, paras. 3–6.

40  For an example of this method, see the draft Corpus Juris, in M. Delmas-Marty and J. Vervaele (eds.), The Implementation of the Corpus Juris in the Member States (2000), Vol. 1, pp. 187–213; and cf. M. Damaska, ‘Models of Criminal Procedure’, 51 Collected Papers of Zagreb Law School (2001) 477–506.

41  See M. Delmas-Marty (ed.) Corpus Juris: Introducing Penal Provisions for the Purpose of the Financial Interests of the European Union (1997); compare with the second version, supra note 40 (2000), which incorporates national comments.

42  See ICTY, Delalić et al., Trial Chamber Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, para. 20.

43  Delmas-Marty, supra note 7; for a more critical approach, compare with P. M. Wald, ‘To Establish Incredible Events by Credible Evidence: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, 42 Harvard International Law Journal (2001) at 535; and A.-M. La Rosa, ‘La Preuve’, in H. Ascensio, E. Decaux, and A. Pellet (eds.) Droit international pénal (2000) 763–764.

44  Ch. 49, V, above.

45  ICTY Brdjanin, Trial Chamber II, Decision on Motion to Dismiss Indictment, 5 October 1999, para. 13.

46  Dupuy, supra note 21, at 293.

47  See M. Delmas-Marty and M. Laure Izorches, ‘Marge nationale d’appréciation et internationalisation du droit: réflexions sur la validité d’un droit commun pluraliste’, 46 McGill Law Journal (2001) 5–31 (also in RIDC(2000) 753–780); esp. the second part concerning the conditions for the logical validity of a reasoning which could, if certain methodological precautions are not taken, reinforce judicial arbitrariness.

48  See in particular, as regards the transposition of the Genocide Convention in Australia, D. Boyle, in Delmas-Marty (ed.), supra note 19, at 244–256 and the example of the Dissenting opinion of Australian High Court Justice Brennan in Polyukhovitch v. The Commonwealth and Another (1991), 172 Commonwealth Law Reports 501 FC, Canberra, l4 August 1991. See also E. Fronza and N. Gouillou, ‘Droit pénal commun et méthods comparées. Réflexions à partir du génocide’, in M. Delmas-Marty (ed.), Variations autour d’un droit Commun (forthcoming).

49  See J. R. W. D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (2nd edn., 2000) 524–527.

50  T. S. Eliot, ‘Little Gidding’, in Four Quartets, lines 120–121.