The International Criminal Court’s Chambers Practice Manual

This article discusses the nature of the International Criminal Court’s Chambers Practice Manual as an interpretative source, in the context of a wider debate on judges as procedural lawmakers in international criminal law. As is clear from the ICC Statute, the Practice Manual should not be seen as a source of law on a par with the Statute or Rules of Procedure and Evidence, nor even does it represent a secondary source of law. However, this article argues that the Practice Manual oversteps the mark of what could be expected from a guidance document containing merely non-binding recommendations in two important respects. First, as expressly acknowledged by the ICC’s President, the judges have perceived the amendment of the Practice Manual as an alternative to proposing amendments to the Court’s Rules of Procedure and Evidence to the Assembly of States Parties, a practice which has been fraught with difficulty in recent years. Second, the Practice Manual contains explicit instructions to Chambers, including text to be included in Chambers’ decisions, which appears to cross the boundaries of what should be expected from a guidance document. This article further argues that some early decisions of the Court following its adoption give the Practice Manual a normative force that ought not to attach to it. This raises issues of fairness, legal certainty, predictability and coherence, and overall, it is argued that the Practice Manual marks an unforeseen return to judicial law making in international criminal procedure