چکیده:
Every judicial authority must refer to sources when issuing its judgments. The sources referred to by each international criminal court are defined by its founding document. Article 21 of the Statute of the International Criminal Court, under the heading 'Applicable Law', specifies the important sources to be referred to by the Court and their hierarchy. Consequently, as an international criminal authority, the Court must issue its judgments by referring to these sources and respecting the hierarchy among them. Of course, the sources referred to by the Court are not limited to those mentioned in the Statute. In principle, the sources mentioned in Article 21 of the Statute differ from each other in terms of nature and hierarchy and do not hold equal status. The main question of the present research is: what are the legal sources of the International Criminal Court contained in the Statute? Which sources are not mentioned in the Statute? What is the concept and nature of these sources, and what hierarchy governs them? The clarification of the concept, nature, and scope of the sources mentioned in Article 21, as well as their relationship within the founding hierarchy, is the subject of this research. Perhaps no issue in the Court is as significant as this one.
خلاصه ماشینی:
Journal of Legal Studies Volume 3, Number 2, Autumn and Winter 2011, (Special Issue on Criminal Law and Criminology) The Concept of Applicable Law in the Statute of the International Criminal Court Hossein Aghaei Jannat Makan* Abstract {IBEvery judicial authority must refer to sources when issuing its decisions.
Article 21 of the Statute of the International Criminal Court, while referring to one of the most fundamental issues in international criminal law under the heading of "applicable law"2, determines the hierarchy of the rules of the Statute as follows: 1-The Court shall apply: a- In the first instance, this Statute,3 elements of crimes4 and the related procedure and evidence5; b- In the second instance, as appropriate, applicable treaties6 and principles and rules of international law7, including the established principles of international law of armed conflicts8; c- In any other case, general principles of law derived by the Court from national laws of legal systems, including, as appropriate, the national laws of States which generally exercise jurisdiction over the crime, provided that such principles are not incompatible with this Statute, international law, and recognized international rules and standards.
"Therefore, unlike the Nuremberg and Tokyo trials and even the ad hoc (special) tribunals where judges possess greater discretion and diagnostic power in determining applicable law, in the Statute of the International Criminal Court, with the inclusion of Article 21 and also the codification of rules of procedure and evidence and elements of crimes by the General Assembly of Member States, the powers of judges in determining applicable law have decreased (Shabath, 1384:99).
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