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Judicial Interpretation and Nullum Crimen Sine Lege at the International Criminal Court: An Exercise in Utilizing 'Other Inhumane Acts' under Crimes Against Humanity

Wetherill, Matthew Alan (2019) Judicial Interpretation and Nullum Crimen Sine Lege at the International Criminal Court: An Exercise in Utilizing 'Other Inhumane Acts' under Crimes Against Humanity. Doctor of Philosophy (PhD) thesis, University of Kent,. (KAR id:81863)

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Abstract

This PhD aims to explore how the International Criminal Court (ICC) can inject elements of judicial creativity when expansively interpreting the contents of the crimes under which it has jurisdiction without violating the principle of legality (more specifically nullum crimen sine lege). This has been of key interest to the scholarly community, especially in regard to the development of international criminal law. While prior international criminal tribunals have contributed a great deal to the expansion of the body of international criminal law, they were crafted with this specific task in mind. Their statutes and accompanying crimes were broad, encouraging them to creatively interpret their contents. This coupled with lack of reference to the principle of nullum crimen sine lege permitted them to adopt a generic definition of it which, in turn, enabled them to more easily define or include new crimes within their jurisdiction. The Rome Statute which binds the ICC, on the other hand, is a much more specific document, devised to reflect the stricter standards for interpretation that is often seen in civil law legal systems. It includes a detailed set of definitions of crimes, as well as explicit reference to the principle of nullum crimen sine lege. This indicates that the ICC will not be able to expansively interpret the Rome Statute in the same way as was done at other international criminal tribunals. The dichotomy between the ICC and other international criminal tribunals becomes clearer when considering the inclusion of 'other inhumane acts' under crimes against humanity. This residual clause was constructed with the intent to provide a means for adapting the Rome Statute for the inclusion of novel criminal acts. However, due to the fact that these acts have not been formally codified within the Rome Statute itself, the provision runs risk of violating the principle of nullum crimen sine lege (without established law an individual cannot be held criminally accountable for their acts). The objective of this research was then to identify how the ICC can creatively interpret its statute to include novel criminal acts under 'other inhumane acts' without violating the principle of nullum crimen sine lege. This PhD implements a novel method for judicial interpretation at the ICC by combining the concept of 'judicial creativity' as detailed by Shane Darcy with statutory restrictions placed within the Rome Statute and a contemporary understanding of nullum crimen sine lege. This is then applied to a number of acts which have not been codified within the Rome Statute, namely: forced marriage, 'ethnic cleansing' and terrorist acts, to identify how the principle impacts the ICC's ability to exert judicial discretion. This PhD finds that indeed, the court can actively utilize 'other inhumane acts' under crimes against humanity to include novel abhorrent acts without violating the principle of nullum crimen sine lege. The principle itself, when applied through the above methodology, acts as a sifting agent, syphoning out acts which are incompatible with the Statute and promoting judicial consistency. In doing so, it also aids in highlighting the key tenets of the acts being examined and forces the unique aspects of them to the forefront. As such, the principle serves a threefold purpose; it protects the accused from arbitrary application of the law, it aids in better representing victims through highlighting the unique aspects of the act committed and it provides others with a deeper understanding of the act being examined.

Item Type: Thesis (Doctor of Philosophy (PhD))
Thesis advisor: Arai, Yutaka
Thesis advisor: Schepel, Harm
Uncontrolled keywords: Human Rights Law, International Criminal Court, International Criminal Law, Judicial Interpretation, Nullum Crimen Sine Lege, Other Inhumane Acts
Subjects: H Social Sciences
K Law
Divisions: Divisions > Division for the Study of Law, Society and Social Justice > Kent Law School
SWORD Depositor: System Moodle
Depositing User: System Moodle
Date Deposited: 25 Jun 2020 09:10 UTC
Last Modified: 16 Feb 2021 14:13 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/81863 (The current URI for this page, for reference purposes)
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