The International Criminal Court (ICC)’s Procedural Practice and Domestic Legal Sources

Abstract

Abstract Through the analysis of the ICC’s procedural jurisprudence related to Article 21(1)(c) of the ICC Statute, this article examines how the ICC has used domestic laws. To fill a legal gap in its instruments, the ICC “shall apply […] general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime” (Article 21(1)(c)). The ICC has not directly applied specific domestic laws. Instead, it has used domestic procedural legal sources to derive general principles of law as a subsidiary applicable legal source and mainly when the ICC’s Judges are trying to fill legal gaps in the ICC’s legal instruments based on comparative law approaches. Thus, the present article shows how outdated the idea of domestic law as a fact has become, and the variety of functions domestic law plays currently in international courts and for international adjudicators.