CYIL vol. 7 (2016)

353

CYIL 7 ȍ2016Ȏ

APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS…

simply excluded, even if the Prosecutor would be endowed with new decisive evidence

capable of totally reversing the outcome of the proceedings. The revision proceedings

may only bring about an outcome that is in favor of the accused (here the convicted)

person. This is once again an affirmation of the principle

ne bis in idem

In the previous part of the text it was argued that the fundamental right of the

accused to a presumption of innocence, implying that a prosecutor’s failure to bear

the onus of proof in the criminal trial must lead to the acquittal of the accused,

was breached. At the same time, irregularities concerning the right to fair trial were

described. With respect to the termination decision, it can be summarized that,

although the doctrine of inherent/implied powers had been used only in a supportive

and subsidiary manner and had been referred to only marginally in the reasoning

of Judge Eboe-Osuji, it is an inappropriate source for introducing the decision on

vacation of charges with possible re-prosecution into the legal framework of the ICC.

Conclusion

The practice of the ICC concerning the methodology of applicable law and its

interpretation is stable and well settled. The ICC refers to its statutory framework

and applies legal sources in the predetermined sequence: the Statute, the Rules of

Procedure and Evidence and the Elements of Crimes in the first place, subsidiarily

treaties and the principles and rules of international law, and only after that, at the

third level, general principles of law derived by the Court from national laws of legal

systems of the world. The application of secondary and tertiary sources is possible

only if a lacuna in the higher stages of the legal pyramid exists. The interpretation of

applicable law follows an obvious path delimited by general rules contained in the

VCLT, including the principle of effectiveness, which is to be derived from the good

faith rule. Besides this external manual, the ICC subordinates its interpretation of

applicable law to the internal guidelines, i.e. guidelines contained expressly in the

ICC Statute – consonance with internationally recognized human rights and the

principle of legality.

This being said, it is evident that introduction of any new concepts into the

framework of law applicable before the ICC is rather uneasy and complicated. It

must surpass the hurdle of compatibility with the said methodology of application

and interpretation of law employed before the ICC. First and foremost, any new

concept must not be incompatible with the expressed statutory regulation. Irrespective

of whether the new institute is inferred from the inherent or implied powers doctrine

or is deduced from extensive interpretation of the statutory provisions, if there is an

irreconcilable normative conflict with other statutory provision, this new concepts

must be dismissed. It was argued that the subpoena of witnesses might be inferred

from extensive interpretation of the ICC Statute which conforms both to the external

Schabas, W.:

supra

, p. 960.