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Using the principle of systemic integration to interpret war crimes in the Rome Statute of the International Criminal Court

thesis
posted on 2023-05-27, 19:20 authored by Thomsen, M

This thesis argues that judges of the International Criminal Court ('ICC') should interpret the definition of crimes in the Rome Statute consistently with customary international law, as stipulated by the 'principle of systemic integration' in article 31(3)(c) of the Vienna Convention on the Law of Treaties. There are three normative assumptions behind this argument. First, compliance with the principle of systemic integration will lead to greater consistency in judicial reasoning across ICC Chambers than is currently the case. Second, it will promote the ICC as a model international court whose decisions represent authoritative interpretations of customary international law, simultaneously preventing the unnecessary fragmentation of international criminal law. Third, it will facilitate the legitimate, incremental development of the law in accordance with the evolving practice and legal opinion of states. This thesis seeks to substantiate each of these normative assumptions through empirical research, qualitative case analysis, hermeneutic reasoning, and legal argumentation.

While there is already strong academic support for using customary international law as an obligatory interpretive aid in the interpretation of the Rome Statute, there are significant gaps in the literature that this thesis aims to fill. To begin with, there are no empirical analyses of ICC jurisprudence to determine the extent of its compliance with the principle of systemic integration. Furthermore, there remains debate over the methodology used to identify rules of customary international law (particularly in the international criminal context) and there have been no attempts to apply the International Law Commission's 2018 Draft Conclusions on Identification of Customary International Law to the ICC context. Finally, there are no case studies examining what ICC compliance with the principle of systemic integration might look like in practice.

This thesis demonstrates that the ICC has been reluctant to comply with the principle of systemic integration. It provides an original contribution to the debate on how to identify customary rules in the international criminal context and builds on existing proposals for using custom as an obligatory aid when interpreting the definition of crimes. To illustrate this approach, this thesis focuses on the impact of using customary international humanitarian law to interpret war crimes under article 8 of the Rome Statute and provides a three-part case study on interpreting the war crime of denying a fair trial in the context of a non-international armed conflict.

History

Sub-type

  • PhD Thesis

Pagination

xiv, 222 pages

Department/School

School of Law

Publisher

University of Tasmania

Publication status

  • Unpublished

Event title

Graduation

Date of Event (Start Date)

2022-12-17

Rights statement

Copyright 2022 the author.

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