CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS… 1.1 Interpretation and Applicable Law The interpretation of the Statute, the peak of the ‘beautiful pyramid’ 12 of applicable law before the ICC, is governed by the Vienna Convention on the Law of Treaties (VCLT), specifically its Articles 31 and 32, which reflect customary international law. 13 The various elements referred to in this provision – ordinary meaning, context, object, and purpose – must be applied together and simultaneously, rather than individually and in a hierarchical or chronological order. On the basis of the principle of good faith, the general rule also comprises the principle of effectiveness, requiring dismissing of any interpretation of the applicable law that would result in disregarding or rendering any other of its (statutory) provisions void. 14 Only in the next step, where the statutory provisions do not resolve a particular issue, may the ICC resort to treaty or customary law, as well as to general principles of law and relevant jurisprudence of other international courts and tribunals. 15 This methodological approach is dictated both by external contextual interpretation of the Statute [Article 31(3)(c) of the VCLT] and the hierarchy of law applicable before the ICC ( cf. infra ). When the statutory provision still remains as ambiguous or obscure, the ICC may resort to supplementary means of interpretation ( travaux préparatoires ) envisaged in Article 32 of the VCLT. Finally and importantly, the Rome Statute contains two internal principal interpretative guidelines all rules applicable before the ICC must conform with: the human rights directive [Article 21(3) of the Statute] and the principle of legality (Article 22 of the Statute), according to which a person shall not be criminally responsible under the Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the ICC. 16 Perfect usage of this methodology is illustrated in the ACH subpoena decision. The ACH firstly held that import of the concept of implied powers or customary international criminal procedure, employed by the TCH, would be incorrect, as recourse to other sources of law is possible only if there is a lacuna in the primary sources of law. It then focused its attention on the Rome Statute and interpreted its provision [Article 64(6)(b) of the Statute] in accordance with rules of interpretation contained in the VCLT. 17 The ACH made use of grammatical interpretation (the word require denotes something more than a voluntary action) in combination with the supplementary method of reference to travaux préparatoires (there is no evidence 12 POWDERLY, Joseph. The Rome Statute and the Corseting of the Interpretative Judicial Function. In: STAHN, Carsten (ed.) The Law and Practice of the International Criminal Court . Oxford: OUP, 2015, p. 461. 13 Bemba , ICC-01/05-01/08-3343, TCH III, 21 March 2016, § 75-76. 14 Ibid. , § 77. 15 Ibid. , § 78. 16 Ibid. , § 82. Cf . SVAČEK, Ondřej. Human Rights before the International Criminal Court. Czech

Yearbook of Public and Private International Law . 2014, vol. 5, pp. 327-340. 17 Ruto and Sang , ICC-01/09-01/11-1598, ACH, 9 October 2014, § 105.

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