Institute of Legal Practice

and Development

Excellence in Legal Practice

International Judicial
Proceedings
Dr. SEZIRAHIGA Yves
Acting Rector
ILPD
Phone: +250788493141
E-mail: yves.sezirahiga@ilpd.ac.rw or sezyves@yahoo.fr
 Pre-test Question

What do you think is the

main subject of discussion
in this course?
Take into consideration the name of the
course and that of the Module

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 Course structure
• Pre-test Question
• General Introduction
– The ad hoc Tribunals
– Relationship between the ad hoc Tribunals and National Jurisdictions
– The International Residual Mechanisms for Criminal Tribunals
– International Criminal Court (ICC)
– Procedural rules of Hybrid tribunals
• Aspects of common law and civil law in International criminal proceedings:
– The establishment of the truth
– Preliminary investigation
– The role of the judge and the parties during trial
– Admission of Guilt of the Accused:
– Witness Preparation (familiarization)/proofing
– Testimony of the Accused
– Role of the Victim in the proceedings
• Aspects of contention between common law and civil law within ICJ
Proceedings
• Conclusion ILPD
 General Introduction

• The international community has established a number of

courts for solving disputes regarding international law.
– Their legal nature varies and the scope of jurisdiction and binding
effect of their case law largely depends on the relevant founding
act.
• Internationally we have two main types of courts:
– The International Court of Justice (ICJ)
• Established by the U.N. Charter in 1945 following World War II, the
World Court renders advisory opinions to the United Nations and
considers issues among states involving violations of international law or
treaties, including a "steady diet of land and maritime boundary cases,"
– International Criminal Tribunals and Courts:
• Established to investigate and prosecute individual people for serious
violations of international criminal law or international humanitarian law –
such as war crimes, genocide, and crimes against humanity – when national
authorities are unable or unwilling to do so. ILPD
 General Introduction

• International Criminal tribunals and courts may be established by:

– a multilateral international agreement (“international tribunals”).They
include:
• International Criminal Court (ICC)
• International Criminal Tribunal for the former Yugoslavia (ICTY)
• International Criminal Tribunal for Rwanda (ICTR)
• International Military Tribunal for Germany (Nuremberg Tribunal)
• International Military Tribunal for the Far East (Tokyo trials)
– an agreement between one State and an intergovernmental
organizational (“hybrid tribunals”). They include:
• Special Court for Sierra Leone
• Extraordinary Chambers in the Courts of Cambodia
• Special Tribunal for Lebanon
• Iraqi Special Tribunal

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 The ad hoc Tribunals

• The ICTY
– established by Security Council Resolutions 808 of 22 February 1993
and 827 of 25 May 1993.
– Was based in The Hague, Netherlands.
• The ICTR
– established by Security Council Resolution 955 of 8 November 1994
– was based in Arusha, Tanzania.
• Had jurisdiction over:
– genocide, crimes against humanity, and war crimes.
• No international code of criminal procedure:
– The procedural law that the tribunals applied included
• their founding statutes,
• their rules of procedure and evidence, and
• standard international law sources such as treaties and custom.
– Their Rules were largely inspired by the system of common law as opposed to civil law.
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 Relationship between the Tribunals and National Jurisdictions

This relationship was founded on three principles, namely:

– Concurrent Jurisdiction:
– Primacy of International Tribunals:
– Ne bis in Idem.
• Concurrent Jurisdiction:
– The Tribunals and national courts had concurrent jurisdiction to
prosecute persons presumed guilty of serious violations of
international humanitarian law (Art. 9.1 of ICTY Statute, Art. 8.1 of
ICTR Statute).
• Primacy of International Tribunals
– Although the jurisdiction is concurrent, both Statutes clearly
establish that the Tribunals have primacy over national courts (Art.
9.2 of ICTY Statute, Art. 8.2 of ICTR Statute).
• This means that, at any stage of the judicial proceedings, the International
Criminal Tribunals could formally request that national courts defer to the
competence of the International Criminal Tribunals. ILPD
 Relationship between the Tribunals and
National Jurisdictions

• Ne Bis in Idem
– This is a firmly established principle of law, both in general criminal
and in international law, according to which one person may not be
judged twice for the same crime (also known as protection from
double jeopardy).
• This fundamental right is reflected in the two Tribunal Statutes (Art. 10 of
ICTY Statute, Art. 9 of ICTR Statute).
– An individual tried before one of the International Criminal Tribunals
thus cannot be tried again before a national court for the same crime.
– By the same token, the Tribunals may not rule on an act for which a
person was already tried by a national court.
– Exceptions:
• The Tribunals may subsequently try the person if
– “the act was characterized as an ordinary crime [in the domestic trial]; or
– the national court proceedings were not impartial or independent, or
– were designed to shield the accused from international criminal responsibility; or
– ILPD
if the case was not diligently prosecuted” (Art. 10.2 of ICTY Statute, Art. 9.2 of ICTR
Statute).
 The International Residual Mechanisms for Criminal Tribunals

• The International Residual Mechanism for

Criminal Tribunals (IRMCT)
– established by UNSC Resolution 1966 (2010)
to finish the work begun by ICTY and ICTR.
– It is subdivided into two branches:
• the ICTR branch began functioning on 1 July 2012
and
• the ICTY branch on 1 July 2013.

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 International Criminal Court

• ICC:
– Established by States parties
– Has jurisdiction
• over crimes occurred in a state party to the ICC Statute;
• over crimes perpetrated by nationals of the States parties to
the ICC Statute; or
• Over the situation referred to the ICC by UN Security Council
under Chapter 7 of the UN Charter.
– ICC Jurisdiction is based on the principle of
complementarity:
• the ICC is a court of last resort.
– It can only exercise jurisdiction if the domestic courts where the
perpetrator is found, are either unable, or unwilling to do so.
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 ICC procedural rules

– ICC procedural rules are more closely aligned with

the inquisitorial approach than were those of the ad
hoc tribunals.
– ICC judges have the authority:
• To exercise significant control over the proceedings by
directing the presentation of evidence and
10

• overseeing the charging decisions of prosecutors.

• Victims actively participate in the proceedings in their
own capacity, from pretrial to appeal;
• ICC prosecutors have obligations to not only disclose, but
also collect exonerating as well as incriminating evidence
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 Trigger Mechanisms for ICC Jurisdiction

• The ICC jurisdiction is trigged through referrals:

– States Referral;
• Any State Party to the Rome Statute can request the
Prosecutor to carry out an investigation.
• A State not party to the Statute can also accept the
jurisdiction of the ICC with respect to crimes committed in
its territory or by one of its nationals, and request the
Prosecutor to carry out an investigation.
– To date, three States Parties have requested the Prosecutor to
conduct an investigation:
» the Democratic Republic of the Congo,
» Uganda, and
» the Central African Republic.

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 Trigger Mechanisms for ICC Jurisdiction

– Investigation proprio motu by the ICC

Prosecutor:
• A Prosecutor can initiate investigation proprio motu
only if the crimes within the jurisdiction of the
Court appear to have been committed by a
national of a State Party or on a territory of a State
Party.

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 Trigger Mechanisms for ICC Jurisdiction

– The Security Council Referral acting under Chapter VII

of the UN Charter:
• Under the United Nations Charter, the UN Security Council
bears the responsibility for the maintenance of international
peace and security.
– The Security Council may refer a situation to the ICC, which
empowers the ICC to investigate all four crimes under the Rome
Statute.
» Where an investigation is initiated by the Prosecutor proprio
motu, or where a situation is referred by a State Party, the
Prosecutor must inform the Security Council about the
investigation.
» Article 16 of the Rome statute, on the other hand, allows the
Council to defer an investigation or prosecution for one year
through a Chapter VII resolution, for reasons relating to the
maintenance of international peace and security.
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 Hybrid tribunals

• Procedures are influenced in part by the ICTY,

ICTR, and ICC models and in part by the legal
system within which a hybrid tribunal is located.
– The Special Court for Sierra Leone heavily borrowed
from ICTR rules and remained largely adversarial,
consistent with the modern legal tradition of Sierra
Leone.
– By contrast, the procedures of the Extraordinary
Chambers in the Courts of Cambodia (ECCC) and the
Special Tribunal for Lebanon (STL) have more
inquisitorial features, such as investigative judges
(ECCC), victim participation (ECCC and STL), and
trials in absentia (STL) ILPD
 Aspects of common law and civil law in International
criminal proceedings

 The establishment of the truth:

– In civil law,
• the prosecutor (during the investigation) and the judge (during the trial) are
responsible to seek for the truth.
– In common law
• it is believed that the truth is best established during the adversarial process
when two parties present their case before a relatively passive judge,
primarily through cross-examination.
– the obligation to establish the truth is never the task of the judge.
– “the truth is most likely to be established through an adversarial procedure, in which the
parties present facts to a neutral adjudicator”.

• ICTR and ICTY adopted the Common law truth-finding

theory.
– The order of presentation of evidence as well as the conduct of
the examination of a witness employed the adversarial tool of
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cross-examination.
 Aspects of common law and civil law in International
criminal proceedings

• Civil Law aspects within the ad hoc tribunals:

– The law of the ad hoc tribunals provides the judge with the competence
to
• seek evidence and information that he or she believes should be revealed
during the proceedings; including the power to call and question witnesses.
• the law of the ICTY and the ICTR provides for control over the mode and order of
interrogating witnesses and presenting evidence to make.
• Notice:
– The Statutes of the ad hoc tribunals do not explicitly require the judge
• to become familiar with the results of the pre-trial proceedings, and
• he or she is not under an obligation to play an active role during the trial.
– Judges originating from civil law are more eager to play an active
truth-seeking role, while their common law counterparts remain
passive.

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 Aspects of common law and civil law in International
criminal proceedings

• The ICC procedure comes closer to the civil trial model.

– While the procedure is mainly adversarial in nature, however,
notable civil law elements have been introduced:
• Trial Chambers of the ICC are obliged “to go beyond the
dispute of the parties to seek a complete representation of the
facts”
– The Rome Statute explicitly states that “[t]he Court shall have the
authority to request the submission of all evidence that it considers
necessary for the determination of the truth”.
• ICC Prosecutor Has the obligation to extend the investigation
to cover all facts and evidence relevant to an assessment of
whether there is criminal responsibility and, in so doing,
investigate incriminating and exonerating circumstances
equally.
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 Aspects of common law and civil law in International
criminal proceedings

 Preliminary investigation — examination

of a witness and disclosure of pre-trial
findings to the judge:
– A preliminary investigation is conducted by
the Prosecutor who relies on the cooperation
and judicial assistance of the States while
pursuing the inquiry.
• The Prosecutor fulfills his or her duties by
questioning suspects, victims, and witnesses and
by collecting evidence.
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 Aspects of common law and civil law in International
criminal proceedings

– After completion of the preliminary investigation,

civil law practices demand that the trial judge be
acquainted with the pre-trial findings gathered in
the dossier,
• while in the common law system such disclosure is
completely forbidden.
– Since the civil law judge has to fulfill his truth-
seeking obligations, he or she has to be equipped
with tools that will allow the judge to exercise that
role.
• The knowledge of materials gathered during the
investigation is looked upon as giving them a chance to
do so. ILPD
 Aspects of common law and civil law in International
criminal proceedings

– On the contrary, the common law judge, who is not

bound by the same obligation is expected to resolve
the issue between the parties acquiring the so-called
“tabula rasa” approach.
• The judge is expected to be as neutral as possible.
• Prior to the commencement of the trial, the trial
preparation is managed in
– the ICTY by the pre-trial Judge 36

– the ICTR by the Trial Chamber itself, or by the Judge

designated from among the members of the Trial Chamber . 37

– In case of the ICC, these functions are left in hands of the

Pre-Trial Chamber 38

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 Aspects of common law and civil law in International
criminal proceedings

• It is explicitly stated that no judge who has participated in the

pre-trial phase of one case may sit on the Trial Chamber of the
same case.
– while the Pre-Trial Chamber judges can gain an extensive
knowledge of evidence gathered at that stage, and sometimes may
even take part in the hearing of the accused as well as witness
hearings,
• they are forbidden from sitting on the bench during the subsequent trial.
• On contrary, in case of the ad hoc tribunals
– The “pre-trial Judge” is chosen from among the Trial Chamber’s
members, as is the “designated judge” operating in the name of the
Trial Chamber.
– The judges of the ad hoc Trial Chambers may therefore have factual
knowledge of the events that happened before the beginning of the
trial, similarly to what can be observed in the Continental law
system and almost completely unlike in the Anglo-American ILPD trials.
 Aspects of common law and civil law in International
criminal proceedings

– the provisions of the law of the ICC are so open,

• the judges originating from the civil law system will be
tempted to familiarize themselves with the whole file,
as they would do during their own national trials,
– while the common law judges will be more reluctant to look at
the pre-trial findings due to the natural tendency to withhold
this information.

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 Aspects of common law and civil law in International
criminal proceedings

 The role of the judge and the parties during trial:

– Power to call and examine witnesses:
• The order of presentation of evidence before the ad hoc
tribunals, at first sight, follows the adversarial model
according to the provisions of Rule 85 (A) of the ICTY/R
RPE.
– Each party is entitled to call witnesses and present evidence.
– the order of presentation of evidence:
• Usually, this will be done by presenting the evidence in two
separate cases,
– first by the Prosecutor, who bears the burden of proof, and then
– by the Defence.
– Subsequently, this might be followed by prosecution evidence in
rebuttal and
– defence evidence in rejoinder. ILPD
 Aspects of common law and civil law in International
criminal proceedings

• In any case, the civil law elements, especially those that make it
possible for the judges to be more active, are easily visible
throughout the law of the ad hoc tribunals:
– Trial Chamber may proprio motu order either party to produce
additional evidence and to summon witnesses and order their
attendance.
– The judges have the right to question witnesses at any time they wish
and
– the power to reduce the number of witnesses and to shorten their
examination conducted by both the Prosecution and the Defence.
• The law of international criminal courts and tribunals mixed the
idea of an active judge taken from the civil law tradition with
the adversarial approach in which two parties bring the
evidence before the court.
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 Aspects of common law and civil law in International
criminal proceedings

 Admission of Guilt of the Accused:

• The ICC rules governing an admission of guilt by the
accused provide another example of a truly hybrid civil-
common regulation.
– In common law, admission of guilt by the accused leads to
conviction and the end of the trial if it was voluntary,
unequivocal, and informed.
– In civil law, such a situation does not necessarily mean that the
accused will be convicted; the judge can always decide not to
convict the accused based on different or additional evidence.
• The Chamber may convict the accused based on his/her
admission of guilt and end the trial; however, the Chamber
is not required to do so.
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 Aspects of common law and civil law in
International criminal proceedings

• On Contrary, in ICTR and ICTY

proceedings, by entering a guilty plea, a
defendant waives certain procedural rights,
including:
– the right to plead not guilty,
– the right to require the Prosecution to prove the
charges made against him at a fair and public
trial, and
– the right to put forward a defence to those
charges at such a public trial.
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 Witness Preparation
(familiarization)/proofing:
– The essence of familiarization is to make the
witness generally familiar with the court’s
infrastructure and procedures in order to
prevent him or her being totally taken by
surprise or even re-victimized.
• Thus, the underlying idea of familiarization is
generally to prepare the witness to enable her to
give oral evidence at trial in a satisfactory manner.
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– Witness proofing is the 'practice whereby a
meeting is held between a party to the
proceedings and a witness before the witness
is due to testify in Court, the purpose of
which is to re-examine the witness's evidence
to enable more accurate, complete and
efficient testimony.
– Witness proofing serves to 'discuss issues
related to that witness's anticipated evidence.'

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 Aspects of common law and civil law in International
criminal proceedings

– For many judges with common law background,

it is self-evident that the calling party is not only
entitled but also obliged to prepare its
witnesses.
• 1st Rationale for witness preparation: Witness should
not be ‘left alone’ in the courtroom, especially at the
hands of the opposing party that will cross-examine
the witness, without any further preparation.
• It has also been explained that the added value of
witness preparation is to receive a more accurate,
complete, and efficient in-court testimony from the
witness.
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 Aspects of common law and civil law in International
criminal proceedings

– The preparation of the witness includes various elements,

such as
• (a) meeting the witness prior to his or her testimony;
• (b) informing the witness about what to expect during the hearing;
• (c) providing the witness with an opportunity to review his or her
prior statements, including the opportunity to confirm whether
the statement(s) is/are accurate;
• (d) discussing the topics likely to form the focus of the
examination by the calling party and the opposing party;
• (e) showing potential exhibits and asking the witness for
comments;
• (f) addressing inconsistencies in the former statement(s) of the
witness; and
• (g) informing the witness about appropriate witness behaviour.

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 Aspects of common law and civil law in International
criminal proceedings

– This practice leaves a judge with a civil law

background perplexed:
• In civil law judge’s mind, this procedure could come
close to an obstruction of justice.
• Witness preparation, as outlined above, would be seen
to compromise the probative value of the testimony
significantly.
– During the preparation session, the witness’s in-court
testimony is effectively rehearsed, thereby reducing
significantly the benefits of immediacy and complicating the
judges’ assessment of the witness’s credibility.
– For Civil law lawyers, it is simply inappropriate if the
witnesses have undergone a ‘mock questioning’ before the
actual questioning in the courtroom.
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 Aspects of common law and civil law in International
criminal proceedings

– 2nd Rationale for witness preparation: The witnesses’ memory

must be refreshed since they have to testify about events that
occurred a long time ago.
– For civil law practitioner, there is no need to refresh their
memory because:
• many of the events and crimes that witnesses attest to in trials before
the ICC are so shocking and painful for them that essential parts will
have likely left an imprint on their mind forever.
• Witness proofing – or witness preparation – has been
common practice at the ad hoc criminal tribunals but the
majority of Trial Chambers, as well as all of the Pre-Trial
Chambers at ICC have remained opposed to the
institution of witness preparation.
– Only four Trial Chambers (Al Hassan case, Ntaganda case,
Ruto and Sang case and Muthaura and Kenyatta) have allowed
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the substantive preparation of witnesses.
 Aspects of common law and civil law in International
criminal proceedings

 Testimony of the Accused:

– In common law jurisdictions, it is considered to be the right of the
accused to testify as a witness in his or her own proceedings.
• Testifying under oath is an indispensable element of the right of the accused
to defend himself and that it follows the principle that the accused is
presumed to be innocent.
– In contrast, for a judge from a civil law system, the accused has the
‘right to lie’.
• To allow the accused to make a testimony under oath would mean to force
him or her psychologically to commit perjury in order to prevent punishment
for his or her actions or omissions.
– Article 67(1)(h) of the ICC Statute explicitly provides the accused with
the right to make ‘an unsworn oral or written statement in his or her
defence’.
• Yet, despite its wording, Chambers so far have interpreted this as an
additional right of the accused, complementing his or her ‘natural’ right to
testify under oath.
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 Aspects of common law and civil law in International
criminal proceedings

 Role of the Victim in the proceedings:

– The principal provision in the Rome Statute governing victim
participation is Article 68(3) according to which, where the
personal interests of victims are affected, the Court shall permit
the views and concerns of victims to be presented and considered
at stages of the proceedings determined to be appropriate by the
Court, and in a manner which is not prejudicial or inconsistent
with the rights of the accused and a fair and impartial trial.
– Victims have the right to:
• attend hearings,
• be notified of hearings and filings,
• access the case record,
• make oral or written submissions, and
• question witnesses.
– This approach is related to civil law system.
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 Aspects of common law and civil law in International
criminal proceedings

• One important contrast in ICTR and ICTY (Vis a vis ICC) is

the role of the victim.
• In common law, the victim in a criminal case is generally
treated as a witness.
– This means two main things:
• The victim usually cannot claim damages in a criminal case
(compensation is usually awarded in civil cases, tried before civil or
magistrates’ courts), whereas, in civil law, plaintiffs may claim damages
in criminal cases (“ se porter partie civile ”).
– In the ICTY and ICTR, this is reflected in the fact that, once the registrar has
transmitted the guilty verdict to the competent authorities, the victims or persons
bringing claims for them need to take action before a national court or other
competent body in order to obtain compensation (Rule 106 of the Rules of
Procedure and Evidence of the Tribunals).
• The accusatory system may expose the victims and witnesses to
traumatic cross-examination carried out by the defense.
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 Overall Conclusion about international Criminal
proceedings

• Blended legal systems in Nature:

– International Criminal Courts/Tribunals
operate through a unique blend of the legal
traditions of the nations represented on the
court.
• Their judicial proceeding combines elements of
accusatorial and inquisitorial legal traditions.
• They have developed and applied a hybrid
criminal procedure, drawing on practices from two
of the world’s major legal traditions, common law
and civil law.
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 Overall Conclusion about international Criminal
proceedings

• Particularities:
– The Rome Statute has opted neither for a ‘purely
common law’ approach nor for a ‘purely civil
law’ one.
• Hence, neither system can claim to be the main point
of reference.
• The legislators have combined features of both
systems, thus creating a procedure sui generis.
– On contrary, it can be argued that ad hoc
tribunals adopted Rules largely inspired by the
system of common law, as opposed to civil law.
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 The International Court of Justice as a case study/ Civil
Matters

• The International Court of Justice (ICJ) is the

principal judicial organ of the United Nations
(UN).
– It was established in June 1945 by the Charter of the
United Nations and began work in April 1946.
– The seat of the Court is at the Peace Palace in The
Hague (Netherlands).
• The Court’s role is to settle, in accordance with
international law, legal disputes submitted to it by States
and to give advisory opinions on legal questions referred
to it by authorized United Nations organs and
specialized agencies.
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 Aspects of contention between common law and civil law
within ICJ Proceedings

• Let compare the procedures and legal

principles prevalent in these legal systems,
focusing on three primary differences:
– (1) the use of precedents (stare decisis),
– (2) good faith in contracting (bona fides), and
– (3) conditions under which contracts must be
fulfilled (pacta sunt servanda).

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 Aspects of contention between common law and civil law
within ICJ Proceedings

• Stare Decisis:
– The doctrine of precedent, or stare decisis, states that, when
trying a case, a judge is obliged to examine how previous judges
have dealt with similar cases.
– Stated in a general form, stare decisis signifies that when a point
of law has been previously settled by a judicial decision, it
forms a precedent, which is not to be departed from afterward.
• The use of precedents when making legal judgments is prevalent in
common law systems, but virtually absent in civil law.
– The stare decisis doctrine does not exist in civil law systems
based on Roman ius civile, where law making is a function of the
legislature.
• A judge’s task is considered to be passive, to implement legal rules
contained mainly in codes, laws, and statutes.

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 Aspects of contention between common law and civil law
within ICJ Proceedings

• Bona Fides or good faith in contracting:

– In general, the concept of good faith requires parties to a
contract to abstain from dishonesty and to keep their promises.
– The bona fides principle is comprised of three essential elements:
• honesty,
• fairness, and
• Reason.
– Civil law systems treat bona fides as an overarching legal
principle, including it in general and specific legislation and civil
codes.
– Common law systems do not, on average, recognize a general
duty to negotiate nor to perform contracts in good faith.

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 Aspects of contention between common law and civil law
within ICJ Proceedings

• Pacta Sunt Servanda

– Common law systems recognize that events occurring after the
signing of a contract, or a force majeure, might make the contract
impossible or impracticable to fulfill, which can release all
parties from their contractual obligations.
– Civil law systems view such events as creating only a partial
release from a contract until the situation conducive to the
fulfillment of contract is restored.
– Civil law systems do not recognize the parol evidence rule, which
some have argued strengthens the sanctity of contracts in
common law states relative to civil law states.
• The parol evidence rule assumes that a written contract embodies all of
the terms of the agreement, and thus that external evidence, such as
verbal communication between the parties, could not alter the parties’
obligations.
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 Aspects of contention between common law and civil law
within ICJ Proceedings

– The weakness of the bona fides and pacta sunt

servanda principles in common law systems should
produce very specific and detailed contracts.
• Unforeseen events may render contracts null and void,
thus common law lawyers will be careful to draft
contracts that specify precise contractual terms.
• In addition, because there are, for the most part, no
codes that would spell out all of the general principles
applicable to a contract under common law, contracting
parties must make sure that all of the principles and
rules that are to apply to their agreement are explicitly
addressed in their contract.

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 Aspects of contention between common law and civil law
within ICJ Proceedings

– Contracts in civil legal systems, backed firmly

by principles of good faith will be more
frequent although less precise.
• Contracts do not spell out all the legal principles
that are to apply to a contract because the written
codes already enumerate these general
overarching principles.
– Eg: In a civil law state, it would be unnecessary for
contracting parties to include good faith as one of the
contractual stipulations because contractual relations in
civil law systems are automatically governed by this
principle.

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 ICJ Practices

• The practices of the ICJ are very similar to

those employed in civil law systems.
– For example, the doctrine of stare decisis would
not be applied in international law.
– On the contrary, the ICJ in its decision making is
bound by Article 59, which states: “The decision of
the Court has no binding force except as between
the parties and in respect of that particular case.”
• The object of this article is simply to prevent legal
principles accepted by the Court in a particular case
from being binding on other states or in other disputes
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 ICJ Practices

– The lack of formal judicial precedent in the activity of the ICJ makes it very
similar to civil legal systems where this doctrine is forbidden for the most
part.
• As far as the remaining two legal principles (bona fides, pacta sunt
servanda), international law most closely resembles the ius civile
tradition.
– Bona fides constitutes one of the general principles of law and is considered
to be one of the formal sources of international law.
• The ICJ has recognized the doctrine of good faith in several judgments, including
the Norwegian Fisheries case (1951), the North Sea Continental Shelf cases (1969),
the Nuclear Test cases (1973), and the Arbitral Award made by the King of Spain on
23 December 1906 (1960)
• Additionally, the principle of good faith is articulated in the Court’s basic
documents, including Article 38 of the ICJ Statute as well as Article 2 (2) of the
United Nations Charter.
– The principle of good faith is sometimes viewed as an overarching principle, from which the
pacta sunt servanda derives, and not surprisingly, the ICJ also treats contractual compliance as
an important part of international and customary law.
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Excellence in Legal Practice