Abstract
General principles of law are a primary mechanism for "gap-filling" in international criminal law. However, their interpretation by tribunals has been fitful, contradictory, and misguided. Given that general principles have been used to settle crucial legal issues that affect the rights of the accused, the confusion concerning their application threatens the legitimacy of international criminal justice. This Article critiques the various conceptions of general principles developed by scholars and tribunals based on the criteria of formal and material validity and exposes the problems with their application in light of comparative law and criminal law theory. The Article challenges international criminal tribunals' reliance on surveys of municipal legal rules as the primary tool for the derivation of general principles. It recommends a more limited role for general principles focused on material validity in the development of international criminal law. Additionally, it urges tribunals to engage with other sources, especially treaties, to alleviate the problem of gaps in international criminal law.
| Original language | English (US) |
|---|---|
| Pages (from-to) | 111-150 |
| Number of pages | 40 |
| Journal | Harvard International Law Journal |
| Volume | 57 |
| Issue number | 1 |
| State | Published - Dec 1 2016 |
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Judicial lawmaking and general principles of law in international criminal law. / Jain, Neha.
In: Harvard International Law Journal, Vol. 57, No. 1, 01.12.2016, p. 111-150.Research output: Contribution to journal › Review article
}
TY - JOUR
T1 - Judicial lawmaking and general principles of law in international criminal law
AU - Jain, Neha
PY - 2016/12/1
Y1 - 2016/12/1
N2 - General principles of law are a primary mechanism for "gap-filling" in international criminal law. However, their interpretation by tribunals has been fitful, contradictory, and misguided. Given that general principles have been used to settle crucial legal issues that affect the rights of the accused, the confusion concerning their application threatens the legitimacy of international criminal justice. This Article critiques the various conceptions of general principles developed by scholars and tribunals based on the criteria of formal and material validity and exposes the problems with their application in light of comparative law and criminal law theory. The Article challenges international criminal tribunals' reliance on surveys of municipal legal rules as the primary tool for the derivation of general principles. It recommends a more limited role for general principles focused on material validity in the development of international criminal law. Additionally, it urges tribunals to engage with other sources, especially treaties, to alleviate the problem of gaps in international criminal law.
AB - General principles of law are a primary mechanism for "gap-filling" in international criminal law. However, their interpretation by tribunals has been fitful, contradictory, and misguided. Given that general principles have been used to settle crucial legal issues that affect the rights of the accused, the confusion concerning their application threatens the legitimacy of international criminal justice. This Article critiques the various conceptions of general principles developed by scholars and tribunals based on the criteria of formal and material validity and exposes the problems with their application in light of comparative law and criminal law theory. The Article challenges international criminal tribunals' reliance on surveys of municipal legal rules as the primary tool for the derivation of general principles. It recommends a more limited role for general principles focused on material validity in the development of international criminal law. Additionally, it urges tribunals to engage with other sources, especially treaties, to alleviate the problem of gaps in international criminal law.
UR - http://www.scopus.com/inward/record.url?scp=84981275208&partnerID=8YFLogxK
UR - http://www.scopus.com/inward/citedby.url?scp=84981275208&partnerID=8YFLogxK
M3 - Review article
AN - SCOPUS:84981275208
VL - 57
SP - 111
EP - 150
JO - Harvard International Law Journal
JF - Harvard International Law Journal
SN - 0017-8063
IS - 1
ER -