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3 - Sources of law

Published online by Cambridge University Press:  05 June 2012

William A. Schabas
Affiliation:
National University of Ireland, Galway
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Summary

The United Nations International Criminal Tribunals sit astride an intriguing ambiguity, in that they seem related to both national law and international law. Their relationship with national law flows inexorably from their role as replacements for domestic courts. The overlap between the two systems is manifested within the statutes of the three tribunals by the need for such rules as primacy, in order to determine whether national courts or the international tribunals take precedence in the event of parallel or conflicting prosecutions, and non bis in idem, to govern situations where there is a possibility of multiple convictions. In other words, in terms of their functions, the tribunals are in many respects not very different from national courts. Inevitably, where the applicable law instruments are inadequate for the solution of legal problems, the international criminal tribunals draw upon national law. Here there are issues as to whether there is a preference for the national criminal law of the State that would ordinarily have jurisdiction, or for some hybrid of different systems of national law. All three statutes make specific reference to the possible application of the national criminal law of the State where the crime was committed. In the case of the ICTY and ICTR, this occurs in the sentencing provisions. The SCSL Statute gives national law a more prominent role, assigning a distinct role to Sierra Leone's criminal procedural law, as well as incorporating some offences drawn from the national law.

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The UN International Criminal Tribunals
The Former Yugoslavia, Rwanda and Sierra Leone
, pp. 74 - 120
Publisher: Cambridge University Press
Print publication year: 2006

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  • Sources of law
  • William A. Schabas, National University of Ireland, Galway
  • Book: The UN International Criminal Tribunals
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511617478.004
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  • Sources of law
  • William A. Schabas, National University of Ireland, Galway
  • Book: The UN International Criminal Tribunals
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511617478.004
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Sources of law
  • William A. Schabas, National University of Ireland, Galway
  • Book: The UN International Criminal Tribunals
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511617478.004
Available formats
×