Comparative international law at the ICTY: the general principles experiment.

Author:Jain, Neha
Position:International Criminal Tribunal for the Former Yugoslavia - Comparative International Law: Framing the Field

    For a significant period of time, the comparativist and the international lawyer were considered to inhabit different worlds: the former scrutinized similarities and differences between domestic legal systems while the latter focused on the universal realm of international law that overlays these systems. This comfortably segregated image has been conclusively shattered by numerous studies demonstrating the multiple areas of interaction between international and comparative law. (1) Of these, one of the ripest areas for further reflection is the "general principles of law" as a source of international law. Puzzlingly, given the traditional domestic law origins of the general principles of law, comparative law and methodology have rarely featured in the scholarship and jurisprudence on the general principles. (2) Thus, the attempt of the International Criminal Tribunal for the Former Yugoslavia (ICTY) to use the general principles as a freestanding source of international criminal law provides a particularly intriguing opportunity to study the interaction between international and comparative law.

    International criminal tribunals, in particular the ICTY, have relied heavily on the concept of general principles of law in a number of cases dealing with procedural and substantive legal questions. (3) However, as this article will demonstrate, the ICTY has paid little heed to the promises and pitfalls of comparative law in its methodology for the derivation of general principles. At times, the Tribunal has adopted a natural law-oriented conception of general principles; on other occasions, it has relied on municipal legal systems to arrive at general principles, though with scarce mention of the appropriate methodology for conducting surveys and comparisons of domestic laws. (4)

    Proper attention to comparative law is essential for tribunals and scholars to recognize the methodological problems of relying on surveys of municipal legal precepts to derive general principles. At the same time, given the numerous difficulties this exercise poses, judges should be cautious in relying too heavily on them for gap-filling purposes and cognizant of their subsidiary nature in the hierarchy of the sources of international criminal law.


    International legal scholarship regarding the nature of the general principles presents an extremely chaotic picture. The general principles are interpreted variously as: principles that are common to all or most domestic legal systems; general tenets that can be found underlying international legal rules; principles that are inherent principles of natural law; and principles that are deduced from legal logic. (5) Notwithstanding this uncertainty as to their characterization, interest in the use and application of the general principles has been revived in the context of the international criminal law regime, where treaty law and customary international law are relatively underdeveloped. (6) While a comprehensive analysis of references by international criminal tribunals to general principles would distract from the focus of this article, prominent ICTY cases wherein the Tribunal relied extensively on general principles (7) reveal two main trends in their application and derivation.

    The Natural Law or Logic Conception of General Principles

    In some cases, ICTY judges adopt a conception of general principles that is not related to or derived from municipal legal systems. Instead they portray general principles as akin to principles of natural law and logic or as principles inherent in the nature of the international legal system. For instance, in the case of Prosecutor v. Erdemovic, (8) Judge Stephen referred to the recognition of duress as a defense for all offenses (including murder) as a general principle of law, not only because of its endorsement in civil law, but also as a matter of "simple justice." (9) Similarly, in Prosecutor v. Furundzija, (10) the ICTY Trial Chamber identified the concept of respect for human dignity as a general principle of international law that is fundamental to international humanitarian law and human rights law and that permeates the corpus of international law as a whole. The Tribunal found that since forcible oral penetration is a severe and degrading attack on human dignity, it is consonant with the principle to classify it as rape. (11) Prosecutor v. Kupreskic et al. (12) saw the Trial Chamber addressing the question of the consequences of the Prosecutor's erroneous legal classification of facts. The Chamber devised a detailed set of rules to guide its decision on the matter, (13) which were based on the "general principles of law consonant with the fundamental features and the basic requirements of international criminal justice. (15)

    These versions of general principles pose considerable problems for the legitimacy of an international criminal law regime that purports to be sensitive to the rights of the accused. International criminal tribunals claim the authority to punish individuals who are alleged to have violated fundamental norms of humanity. This ability to incarcerate individuals in the name of the international community places criminal tribunals in a unique position amongst international courts and immediately implicates the principle of nullum crimen sine lege (the principle of legality). (15)

    The principle of legality has various aspects, which, depending on the legal system, apply to a greater or lesser degree: the prohibition against ex post facto criminal law; the rule favoring strict construction of penal statutes; the prohibition or limitation of analogy as a tool for judicial construction; and the requirement of specificity and clarity in penal legislation. (16) The principle is widely regarded as performing three main functions: preventing arbitrary exercise of the government's punitive power; upholding popular sovereignty by preserving the legislature's prerogative to define punishable conduct and determine sanctions; and providing the accused with fair notice of the range of permissible conduct. (17) Conceptions of general principles that are seemingly plucked out of thin air based on subjective notions of natural law, justice, or the nature of the international legal regime are difficult to reconcile with the demands of the legality principle that requires notice to the accused as a guarantee against the arbitrary exercise of judicial discretion.

    General Principles Derived from Municipal Legal Systems

    The legality problem may not be equally acute in the alternate strand of ICTY jurisprudence, which derives general principles based on comparative surveys of domestic legal systems. Often the same judgment features this competing notion of general principles, either applied by the court as a whole or by different judges, leading to dramatically different consequences for the accused. For instance, in Erdemovic, Judges McDonald and Vohrah considered whether duress could be a defense to murder as a "general principle of law" by conducting a comparative survey of jurisdictions that were practically accessible to the court with a view to deducing general tenets underlying the concrete rules of those jurisdictions. (18) The judges undertook a "limited survey of ... the world's legal systems," including civil law systems (Belgium, Chile, Italy, Finland, France, Germany, Mexico, Netherlands, Nicaragua, Norway, Panama, Spain, Sweden, Venezuela, and the former Yugoslavia), common law systems (Australia, Canada, England, India, Malaysia, Nigeria, South Africa, and the United States), and the criminal law of "other states" (China, Ethiopia, Japan, Morocco, and Somalia). This survey revealed no consistent rule and the variances in the legal systems could be neither reconciled nor explained as differences between the common law and civil law systems. (19)

    The Furundzija Trial Chamber also turned to principles of criminal law common to the majority of the world's legal systems to define rape, (20) only to conclude that there was no consensus on whether forced oral penetration is classified as rape or as sexual assault. Indeed, the ICTY has rarely managed to find commonality when it conducts even limited surveys of national laws to derive general principles. In Sainovic, the ICTY Appeals Chamber referred to a relatively large number of municipal legislation and case law, (21) but failed to find evidence of any general principle requiring the element of "specific direction" for aiding and abetting liability. (22) Similarly, in Delic, the Appeals Chamber looked at the laws of a number of common law and civil law countries and found no consistency in the approach taken to the issue of the finality of the trial judgment in the event of a termination of proceedings pursuant to the appellant's demise. (23)

    There are isolated instances where the court or individual judges have unearthed a general principle based on municipal law surveys. In the Kupreskic case, the Trial Chamber relied on general principles of criminal law common to the world's major legal systems to distinguish four principles that applied...

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