CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS… simply excluded, even if the Prosecutor would be endowed with new decisive evidence capable of totally reversing the outcome of the proceedings. The revision proceedings may only bring about an outcome that is in favor of the accused (here the convicted) person. This is once again an affirmation of the principle ne bis in idem . 53 In the previous part of the text it was argued that the fundamental right of the accused to a presumption of innocence, implying that a prosecutor’s failure to bear the onus of proof in the criminal trial must lead to the acquittal of the accused, was breached. At the same time, irregularities concerning the right to fair trial were described. With respect to the termination decision, it can be summarized that, although the doctrine of inherent/implied powers had been used only in a supportive and subsidiary manner and had been referred to only marginally in the reasoning of Judge Eboe-Osuji, it is an inappropriate source for introducing the decision on vacation of charges with possible re-prosecution into the legal framework of the ICC. Conclusion The practice of the ICC concerning the methodology of applicable law and its interpretation is stable and well settled. The ICC refers to its statutory framework and applies legal sources in the predetermined sequence: the Statute, the Rules of Procedure and Evidence and the Elements of Crimes in the first place, subsidiarily treaties and the principles and rules of international law, and only after that, at the third level, general principles of law derived by the Court from national laws of legal systems of the world. The application of secondary and tertiary sources is possible only if a lacuna in the higher stages of the legal pyramid exists. The interpretation of applicable law follows an obvious path delimited by general rules contained in the VCLT, including the principle of effectiveness, which is to be derived from the good faith rule. Besides this external manual, the ICC subordinates its interpretation of applicable law to the internal guidelines, i.e. guidelines contained expressly in the ICC Statute – consonance with internationally recognized human rights and the principle of legality. This being said, it is evident that introduction of any new concepts into the framework of law applicable before the ICC is rather uneasy and complicated. It must surpass the hurdle of compatibility with the said methodology of application and interpretation of law employed before the ICC. First and foremost, any new concept must not be incompatible with the expressed statutory regulation. Irrespective of whether the new institute is inferred from the inherent or implied powers doctrine or is deduced from extensive interpretation of the statutory provisions, if there is an irreconcilable normative conflict with other statutory provision, this new concepts must be dismissed. It was argued that the subpoena of witnesses might be inferred from extensive interpretation of the ICC Statute which conforms both to the external 53 Schabas, W.: supra , p. 960.

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