How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court

By Davidson, Caroline | St. John's Law Review, April 1, 2017 | Go to article overview

How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court


Davidson, Caroline, St. John's Law Review


Introduction

The Rome Statute of the International Criminal Court ("ICC")1 espouses a commitment to the principle of nullum crimen sine lege (no crime without law)2 including the guarantees that crime definitions will be strictly construed and not be extended by analogy, and ambiguities will be construed in favor of the defendant. Gone are the days of watered down legality in the face of horrendous crimes, or so it seems on the face of the document.3 At the same time that the Rome Statute announces its commitment to legality, it also provides a hierarchy of legal sources judges are to consider. These sources are many and varied and include not only the Rome Statute and other ICC documents but also general principles of international law and general principles derived from national legal systems.

These provisions on strict construction and sources of law are hard to reconcile. The abundance of often-divergent sources of law seems to assure that ambiguity is either everywhere or nowhere. Add to this picture the backdrop of the Vienna Convention on the Law of Treaties ("Vienna Convention"), which potentially adds yet another set of sources and tools judges are to turn to when interpreting the Rome Statute's crimes definitions.

The ICC's commitment to legality and strict construction is unprecedented in international criminal law ("ICL"). The Nuremberg trials were notoriously lax on the principle of nullum crimen sine lege, particularly with the invention of the new crimes of crimes against the peace and crimes against humanity, and therefore, unsurprisingly, the notion of strict construction gained no traction.4 The ad hoc tribunals5 contained nothing in their statutes related to nullum crimen sine lege, but largely voiced support for the principle in their judgments.6

Despite a professed commitment to legality, the ad hoc tribunals eschewed strict construction in all but a few cases where the cost of recognizing the principle was low.7 The judges of the ad hoc tribunals were conflicted on whether any rule of lenity or strict construction applied. Some judges invoked in dubio pro reo (doubts favor the accused) for the proposition that legal ambiguities be read in favor of the defendant.8 Others, however, insisted that in dubio pro reo only applied to findings of fact.9 Even the judges who recognized the principle of strict construction of the law generally allowed a very limited role for it. They cabined the principle by putting it last, after all other tools of interpretation had been exhausted, and by reducing it to a bare formula of foreseeability, borrowed from the European Court of Human Rights ("ECtHR"), which permitted expansive interpretation10 and application of legal principles to new factual circumstances.11

The ICC's Rome Statute sets out the crimes over which the ICC has jurisdiction and provides definitions of widely ranging specificity for those crimes. An ICC document drafted after the Rome Statute, the Elements of Crimes, defines the crimes in yet greater detail. Still, uncertainty over the law and, specifically, definitions of crimes and forms of criminal responsibility, remains.12 Many legal questions have yet to be answered by any international court. The ad hoc tribunals have answered others, but the ICC is not bound by their law.

Others have discussed the broader issue of nullum crimen sine lege,13 but until recently, there had been scant attention to the interpretive components of the Rome Statute's legality guarantee. In the past few years, however, scholars have turned their attention to this important issue.14 This Article seeks to build on this discussion by probing more deeply into the justifications for strict construction and the other Article 22(2) guarantees and assessing the extent to which they apply at the ICC.

This Article seeks to answer a few seemingly simple questions: What are strict construction, the ban on analogy, and lenity under Article 22(2) of the Rome Statute, and what role do and should they play in interpreting or making ICL? …

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