Does International Criminal Courts apply creative or poor legal reasoning?
The international criminal courts and tribunals (ICTs) raison d’être is to hold leaders accountable for international crimes, but certain customary norms can complicate their work. The principle of legality prescribes that no one can be convicted for ‘new’ or ill-defined crimes, and the rules on personal immunity bar ICTs from prosecuting high-level defendants. For ICTs to overcome this inherent conflict, they sometime restore to what some commentators euphemistically call ‘creative’ application of customary international law but critics label as ‘poor legal reasoning’.
In their new article “Striking the Balance between Custom and Justice − Creative Legal Reasoning by International Criminal Courts,” Marc Schack, Research assistant Centre for Military Studies, and Astrid Kjeldgaard-Pedersen, Assistant Professor Centre for International Law, Conflict and Crisis, examine different examples of such rulings, with particular focus on a recent string of decisions by the International Criminal Court regarding head of state immunity.
The article tries to identify and assess a modus operandi of ICTs confronted with the arduous choice between ‘safe-bet’ application of the relevant sources of law and ensuring international criminal justice, and concludes that ICTs run the risk of undermining the ‘rule of law’ in their eager to secure convictions and justice to the victims in specific cases.
You can read the full article here.