Custom, General Principles and the Great Architect Cassese

摘要

Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law — custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. President Cassese pioneered paths through a perilous bog. ‘[T]he law lives in persons,’ and to understand the law one must study the vision of the persons who animate the law, another great scholar and judge wrote. In that spirit, this article explores advances in the art of elucidating custom and general principles in international criminal justice through the lens of President Cassese’s legacies and views on legality, sovereignty and the imperatives of humanity. The result are major landmarks in the prosecution of international crimes, such as developing protections in armed conflict and against sexual violence — and also progress in developing defenses and protections for the accused. The article distills lessons to guide the elucidation of customary international law and general principles from national systems and to regulate the transposition of concepts from national criminal law into international criminal law.