Article 13 (b) vs Principle of Legality

Article 13 (b) vs Principle of LegalityThe crimes of genocide, crimes against humanity, war crimes and aggression have all been crimes within the jurisdiction of at least one of the other international criminal tribunals and courts established prior to the icc.1 However, their precise definition as contained in the Rome Statute is in some important respects novel.2Despite the averred intention of the Rome Statute's drafters to follow customary international law, "drafting the Statute required clarifying and elucidating the precise content of offenses in a way that often moved the 'law' of the Statute far beyond existing customary international law understandings."3Article 10 evidences this possibility of a discrepancy between the substantive criminal provisions of the Statute and customary international law.4It has been said that Article 22 (3) further "prevents any misconceptions that might arise as to whether the Statute exclusively codifies or exhausts international criminal prohibitions."5As the icty stated in Prosecutor v. Furundzija, "[d] epending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law."6An example of where the Statute creates new law might be, as maintained in Cassese's International Criminal Law edited in 2013, Article 7 (2) (i) Rome Statute.7 According to the authors, the Statute's provision on enforced disappearance of persons as a crime against humanity "has not codified customary international law but contributed to the crystallization of a nascent rule".8With the wide ratification of the Rome Statute and its open intent to be universally ratified it is not out of question 1 See Nuremberg Charter, Art.7; Tokyo Charter, Art.5; icty Statute, Art.2,3, 4 and 5; ictr Statute, Art.2,3 and 4; scsl Statute, Art. 2, 3, and 4. 2 Schabas, An Introduction, 90. 3 Sadat, Transformation of International Law, 12. 4 Rome Statute, Art.10; See also Sadat, "Article 10 of the icc Statute," 909.