The role of general principles in complementing the international criminal rule

Abstract

The rules of international law may be subject to some shortcomings and loopholes that the law cannot adequately accommodate and rule on the case at hand. This makes it necessary to resort to the general principles of law, as one of the distinct sources of international law. Therefore, general principles are considered one of the most important sources that the International Criminal Court or other international courts can apply to the facts presented before them, as many circumstances arise that make it difficult for the International Criminal Court or any other international court to complete its basic rules for imposing appropriate punishment on those accused of criminal cases of an international nature, as stipulated in the constitution of the court through the Rome Statute. This necessitates the search for alternative sources to legislation if this leads to shortcomings and the impunity of many. Therefore, the Rome Statute stipulates certain conditions when resorting to applying these principles, namely that these principles be derived from the national laws of legal systems in the world, including the national laws of countries that have jurisdiction over the crime. These principles must also not conflict with the Statute of the International Criminal Court or with the rules of international law. The third condition is that these principles be consistent with internationally recognized human rights and that they do not discriminate between individuals when applied. The currently established opinion considers general principles an independent source of international law, and this is evident from the content of the provisions of Article (38) of the Statute of the International Court of Justice, as well as the text of Article (21) of the Rome Statute establishing the International Criminal Court. Thus, general principles are one of the most important basic sources after legislation and custom, which requires standing at them and searching between their lines, such as the nature of general principles, the justifications for their adoption, and how those principles can contribute to developing the rules of international criminal law.