Judicial Lawmaking and General Principles of Law in International Criminal Law

摘要

General principles of law are a primary mechanism for "gap-filling" in international criminal law. However, their interpretation by tribunals has been fitful, contradictory, and misguided. Given that general principles have been used to settle crucial legal issues that affect the rights of the accused, the confusion concerning their application threatens the legitimacy of international criminal justice. This Article critiques the various conceptions of general principles developed by scholars and tribunals based on the criteria of formal and material validity and exposed the problems with their application in light of comparative law and criminal law theory. The Article challenges international criminal tribunals' reliance on surveys of municipal legal rules as the primary tool for the derivation of general principles. It recommends a more limited role for general principles focused on material validity in the development of international criminal law. Additionally, it urges tribunals to engage with other sources, especially treaties, to alleviate the problem of gaps in international criminal law.