Treaty interpretation and other tools for normative conflicts : applying the methodology to ICC Statute Conflicts

Abstract

On the facets of legal regimes, normative conflicts and the resulting legal fragmentation of international law, International Criminal Law (ICL) field has been analysed in the present study in order to determine whether this field is a type of special legal regime that can contribute to the international law‘s normative conflict. The study has specifically identified two indispensable international law tools for addressing an emerged normative conflict that involves the ICL statute rule and the customary international law rule. These tools are: a) the treaty interpretation rules prescribed by the Vienna Convention on the Law of Treaties 1969, and b) the rules‘ application technique viz. the legal principle of lex specialis derogat legi generali (translated in English as: special law prevails over general law). The potentiality of these tools has been elaborated in the study vis-à-vis the judicial addressing of normative conflicts whereas the controversial provisions of Article 27(2) and Article 98(1) of the Rome Statute of the International Criminal Court 1998 seem to contradict the customary rule on immunity. This normative conflict has been presumed in both the scholarly debates and legal contentions over the applicability of pre-existing state officials’ immunity before an international court with jurisdiction. To this end, the study has tested the hypothesis of whether the said conflict is typical, and whether the International Criminal Court‘s chambers have employed or ought to have employed the abovementioned legal tools in addressing such conflict. Supposedly, if a normative conflict becomes severe, it leads to a legal fragmentation problem.