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Judicial Creativity at the International Criminal Tribunals$
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Shane Darcy and Joseph Powderly

Print publication date: 2010

Print ISBN-13: 9780199591466

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199591466.001.0001

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General Principles of Law, Judicial Creativity, and the Development of International Criminal Law

General Principles of Law, Judicial Creativity, and the Development of International Criminal Law

Chapter:
(p.45) 2 General Principles of Law, Judicial Creativity, and the Development of International Criminal Law
Source:
Judicial Creativity at the International Criminal Tribunals
Author(s):

Fabián O Raimondo

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199591466.003.0003

This chapter examines the manner in which the ad hoc International Criminal Tribunals have utilized general principles of law in filling substantive and procedural legal gaps. While general principles of law are recognized as secondary sources of law under Article 38(1) of the Statute of the International Court of Justice, they have nevertheless acted as important springboards towards judicial creativity in the international criminal law context. This chapter examines some of the relevant case-law and shows that general principles of law as identified by the bench have been used to surmount statutory lacunae. Of particular interest in this regard is the ad hoc Tribunals' reliance on notions pertaining to their inherent powers in order to examine issues such as institutional legitimacy and obstruction of justice. The chapter concludes with a comment on the prospects for the future role of general principles of law in the jurisprudence of the International Criminal Court.

Keywords:   international criminal law, international courts, international tribunals, sources of law, judicial creativity, judicial interpretation, International Criminal Court, International Court of Justice

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