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CYIL 7 ȍ2016Ȏ
APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS…
1.1 Interpretation and Applicable Law
The interpretation of the Statute, the peak of the ‘beautiful pyramid’
12
of applicable
law before the ICC, is governed by the Vienna Convention on the Law of Treaties
(VCLT), specifically its Articles 31 and 32, which reflect customary international
law.
13
The various elements referred to in this provision – ordinary meaning, context,
object, and purpose – must be applied together and simultaneously, rather than
individually and in a hierarchical or chronological order. On the basis of the principle
of good faith, the general rule also comprises the principle of effectiveness, requiring
dismissing of any interpretation of the applicable law that would result in disregarding
or rendering any other of its (statutory) provisions void.
14
Only in the next step, where
the statutory provisions do not resolve a particular issue, may the ICC resort to treaty
or customary law, as well as to general principles of law and relevant jurisprudence of
other international courts and tribunals.
15
This methodological approach is dictated
both by external contextual interpretation of the Statute [Article 31(3)(c) of the
VCLT] and the hierarchy of law applicable before the ICC (
cf. infra
). When the
statutory provision still remains as ambiguous or obscure, the ICC may resort to
supplementary means of interpretation (
travaux préparatoires
) envisaged in Article 32
of the VCLT. Finally and importantly, the Rome Statute contains two internal
principal interpretative guidelines all rules applicable before the ICC must conform
with: the human rights directive [Article 21(3) of the Statute] and the principle of
legality (Article 22 of the Statute), according to which a person shall not be criminally
responsible under the Statute unless the conduct in question constitutes, at the time
it takes place, a crime within the jurisdiction of the ICC.
16
Perfect usage of this methodology is illustrated in the ACH subpoena decision.
The ACH firstly held that import of the concept of implied powers or customary
international criminal procedure, employed by the TCH, would be incorrect, as
recourse to other sources of law is possible only if there is a lacuna in the primary
sources of law. It then focused its attention on the Rome Statute and interpreted its
provision [Article 64(6)(b) of the Statute] in accordance with rules of interpretation
contained in the VCLT.
17
The ACH made use of grammatical interpretation (the
word
require
denotes something more than a voluntary action) in combination with
the supplementary method of reference to
travaux préparatoires
(there is no evidence
12
POWDERLY, Joseph. The Rome Statute and the Corseting of the Interpretative Judicial Function. In:
STAHN, Carsten (ed.)
The Law and Practice of the International Criminal Court
. Oxford: OUP, 2015,
p. 461.
13
Bemba
, ICC-01/05-01/08-3343, TCH III, 21 March 2016, § 75-76.
14
Ibid.
, § 77.
15
Ibid.
, § 78.
16
Ibid.
, § 82.
Cf
. SVAČEK, Ondřej. Human Rights before the International Criminal Court.
Czech
Yearbook of Public and Private International Law
. 2014, vol. 5, pp. 327-340.
17
Ruto and Sang
, ICC-01/09-01/11-1598, ACH, 9 October 2014, § 105.