Open Questions

Open Questions

Now that it is clear that the ICC recognizes this issue with the principle of legality, it will be interesting to see how it will approach the determination of CIL. This could be an important opportunity for the Court to authoritatively determine CIL in international criminal law, specifically taking into account developments regarding crimes against humanity and war crimes. Through it, the ICC will without a doubt contribute to the progressive development of international criminal law, which should be welcomed.

What the ICC did not resolve, however, is the question of prescriptive application of the Rome Statute for Sudan. Would the ICC still have to address the question of legality for crimes committed after 31 March 2005, the date the referral was adopted by the UNSC? The AC did not have to deal with this question as all confirmed charges against Mr Abd-Al-Rhaman deal with crimes allegedly committed before 2005. In case of ad hoc declarations this issue likewise does not arise because of the prescriptive jurisdiction of the delegating state leading to the acceptance of the substantive provisions in the RS as law binding on individuals. In the case of UNSC referrals, however, I have argued (here at pp 93-95 and 193-195) that would require interpreting the UNSC referral as legislating substantive international criminal law. For the reasons explained there, such an interpretation of the referral in question should not be assumed without any further basis in the text, especially because of the uncertainty about the UNSC’s powers to do so in the first place (similarly de Souza Dias at 86-88). To be sure, the ICTY in Tadic did not have any such concerns (see para 296), so the ICC will probably not question its competence on this either. But this would – at least potentially – constitute an ultra vires act by the UNSC and/or an ultra vires act by the ICC, as also Tladi seems to argue (here at 88).

In conclusion, I think this is a sensible approach by the AC to not just gloss over the issue of the principle of legality but to offer robust justifications for the exercise of the ICC’s jurisdiction in a non-party state. It also includes very welcome clarifications as regards the basis for its jurisdiction found in UNSC Resolution 1593 and not in a (difficult to construe) universal jurisdiction. With the opinion of Judge Ibá ñ ez, however, it seems that this debate has not been fully laid to rest.