By Wilson E.B.

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S/, Article . . ‘Letter dated  April  from the Permanent Representative of Canada to the United Nations Addressed to the Secretary-General’, UN Doc. A/. . Virginia Morris & Michael P. Scharf, supra note , p. . . “Letter from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General (April , )”, UN Doc. A/, Article .  Rule  of the ICTY Rules (“Amendments to the Rules”) sets out the procedures which are to be followed in this respect: (A) Proposals for amendment of the Rules may be made by a Judge, the Prosecutor or the Registrar and shall be adopted if agreed to by not less than ten judges at a plenary meeting of the Tribunal convened with notice of the proposal addressed to all judges.

E International Law Commission (ILC), which in  submitted the draft statute to the General Assembly which formed the basis of the negotiations, was of the view that the judges of the court should draft the rules, like the judges of the ICTY, subject to the approval of States parties. Article () of the ILC draft provided that once the initial rules were passed by active agreement of the States parties, amendments to the Rules would be subject only to their passive approval.  . See Rome Statute of the International Criminal Court, UN Doc.

Is is an extraordinary power, unavailable to judges in domestic criminal law jurisdictions or indeed in any other international jurisdiction, excepting the ICTR and, to a very limited extent, the ICC. e doctrine of the separation of powers prevents judges in national jurisdictions from legislating and requires that they apply existing law. Even though there are clearly times when the interpretative role of a judge exceeds the simple application of the law and may be perceived as a form of judicial legislating, generally the doctrine prevents any substantial interference of the judiciary in this task.

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