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General Principles of Law in the Decisions of International Criminal Courts and Tribunals

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ISBN13: 9789004170476
Published: October 2008
Publisher: Brill Nijhoff
Country of Publication: The Netherlands
Format: Hardback
Price: £97.00



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International lawyers usually disregard the vital functions that general principles of law may play in the decisions of international courts and tribunals. As far as international criminal law is concerned, general principles of law may be crucial to the outcome of an international trial, inter alia because the conviction of an accused in respect of a particular charge may depend on the existence of a given defence under this source.

This volume examines the role that general principles of law have played in the decisions of international criminal courts and tribunals. In particular, it analyses their alleged ‘subsidiary’ nature, their process of determination, and their transposition from national legal systems into international law. It concludes that general principles of law have played a significant role in the decisions of international criminal courts and tribunals, not only by filling legal gaps, but also by being a fundamental means for the interpretation of legal rules and the enhancement of legal reasoning.

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Subjects:
International Criminal Law
Contents:
Preface
Abbreviations
Arbitral Awards and Judicial Decisions
Chapter 1: Introduction
Chapter 2: General Principles of Law: A Source of International Law
2.1. Preliminary Remarks
2.2. Early International Arbitral Tribunals
2.2.1. The Formulation of Applicable Law
2.2.2. Five Examples from before the Adoption of the PCIJ Statute
2.2.3. A Brief Analysis of International Practice
2.3. The PCIJ and the ICJ
2.3.1. The Adoption of the PCIJ Statute
2.3.2. The Scope of Article 38
2.3.3. How to Find General Principles of Law in the Judgments and Advisory Opinions of the PCIJ and the ICJ
2.3.4. Eight Judgments and Advisory Opinions
2.3.5. An Analysis of the Judgments and Advisory Opinions
2.4. The Autonomy of General Principles of Law as a Source of International Law
2.4.1. Scholarly Views on General Principles as a Formal Source of International Law
2.4.2. General Principles as a Formal and Material Source of International Law
2.4.3. A Subtle Difference between General Principles of Law and General Principles of International Law
2.5. The Subsidiary Nature of General Principles of Law
2.6. The Determination of General Principles of Law
2.6.1. The ‘Vertical Move’
2.6.2. The ‘Horizontal Move’
2.6.3. The Absence of Comparative Legal Research in PCIJ and ICJ Practice
2.7. The Transposition of General Principles of Law
2.7.1. Application by Analogy
2.7.2. Traditional Arguments against Transposition
2.7.3. The ‘Special Character’ of International Law
2.7.4. Structural Differences between International Law and National Legal Systems
2.7.5. Transposition to New Branches of International Law
2.8. Concluding Remarks
Chapter 3: General Principles of Law in the Decisions of
International Criminal Courts and Tribunals
3.1. Preliminary Remarks
3.2. Early International Criminal Tribunals
3.2.1. The IMT
3.2.2. The IMTFE
3.3. Contemporary International Criminal Courts and Tribunals
3.3.1. The ICTY
3.3.2. The ICTR
3.3.3. The ICC
3.3.4. The SCSL
Chapter 4: Analysis of Practice and of Relevant Scholarly Writing
4.1. The Autonomy of General Principles of Law as a Source of International Criminal Law
4.1.1. General Principles of Law as a Formal Source of International Criminal Law
4.1.2. General Principles of Law as a Formal and Material Source of International Criminal Law
4.1.3. A Difference between Three Sets of Legal Principles?
4.2. A Subsidiary Source of International Criminal Law?
4.3. The Determination of General Principles of Law
4.3.1. Recourse to Judicial Decisions and Scholarly Writing
4.3.2. The ‘Vertical Move’
4.3.3. The ‘Horizontal Move’
4.3.4. Last Observations on the Issue of Determination
4.4. The Transposition of General Principles of Law
4.4.1. Substantive and Procedural Criminal Law
Analogies
4.4.2. The Problems of Transposition
4.5. Concluding Remarks
Chapter 5: Conclusions
Bibliography
Index