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CYIL 7 ȍ2016Ȏ
APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS…
jurisdiction, or as should be said more correctly, reference to general principles of law
derived from national laws [Article 21(1)(c) of the ICC Statute]is possible only if there
is a gap in the statutory provisions and until recently has been of limited use before the
ICC. To give an example: in 2006 the ACH rejected an application for the possibility
to appeal a decision denying leave to appeal, which is not provided in the Statute, with
the argument that the Statute defines the right to appeal exhaustively and therefore
there is no gap in its framework.
31
Similarly, it is argued here that there is no lacuna
in the Statute with respect to termination of the proceedings once the trial has been
launched: either the guilt is proved and the accused is convicted; or the guilt is not
proved and, based on the presumption of innocence, the accused must be acquitted.
Moreover, as follows from the previous lines, domestic regulation is not relevant
per
se
but only if it is promoted to the level of general principles of law, or if it is employed
as evidence of practice forming the material element of customary international law.
Without this qualification the traditional dictum that municipal laws are merely facts
applies.
32
Moreover, as pointed by G. Bitti, it may be difficult to even find such
a principle in the field of criminal procedural law, as the laws vary considerably from
one country to another.
33
Parties and the ICC itself cannot rely on a few national
legal systems in order to establish a general principle of law. For example, in the case
concerning an appeal against the decision denying leave to appeal, the Prosecutor
referred to 14 countries from the civil law system, four countries from the common
law system and three countries from the Islamic law system in his argumentation
that there exists a general principle of law in this area. For a different reason the
Prosecutor was finally unsuccessful (as there was no gap in the statutory provision);
21 given examples nevertheless establish a more meaningful and persuasive legal
source than a mere four references contained in the termination decision.
Reference to other sources of law envisaged in Article 21(1)(b)(c) is possible
only if there is a lacuna in the primary sources of law applicable before the ICC; the
same holds true with respect to the doctrines of inherent or implied powers.
34
These
doctrines are briefly described in the following part.
1.2 Theory of Inherent and Implied Power
That international courts and tribunals may exercise powers not expressly
provided for in the international instruments finds wide support in the theory and
practice of international law.
35
These powers are described as inherent or implied.
31
Situation in the DRC
, ICC-01/04-168, ACH, 13 July 2006.
32
PCIJ,
Certain German Interests in Polish Upper Silesia
, PCIJ Reports (1926), Se. A, No. 7, p. 19.
33
Bitti, G.:
supra
30, p. 431.
34
Ruto and Sang
, ICC-01/09-01/11-1598, ACH, 9 October 2014, § 105.
35
Available scholarly literature is vast; it is enough to mention a referential work: BLOKKER, Niels.
International Organizations or Institutions, Implied Powers. In:
The Max Planck Encyclopedia of Public
International Law
. Vol. VI, Oxford: OUP, 2012, pp. 18-26.