Noora Arajärvi*
I. Introduction
The construction of international customary norms in international
criminal law includes a distinctive normative element, and, therefore, in the
fields of international law that contain moral considerations, for example the
preservation of human life and dignity, the construction of customary law by
the courts should not necessarily be limited to the traditional model based on
state practice and opinio iuris. Therefore the role of the international
criminal judge in evaluating the substance and definition of customary
international law is prominent. The main thrust of this paper is to examine
whether and how this hypothesis finds support in the case law of the
International Criminal Tribunal for the former Yugoslavia (ICTY). Moreover, the
approach of the ICTY on the formation of customary international law has not
been consistent throughout its operation, and its case law suggests that there
have been several periods of varying approaches to the way customary law should
be constructed. In the light of these developments in the case law of the ICTY,
the changes in custom construction and the reasons for the somewhat capricious
approaches of the judges are analysed.
One possible assertion that cannot straightforwardly be excluded is the
possibility that the case law of the ICTY points to a new source of
international law that is created by the international judge, when the judge
bases his analysis in the decision-making on the premise of normative
considerations instead of the positivist reality.[1] However, political
considerations in international trials may overshadow the theory that a new
source of international law is emerging, because states generally do not wish
to move beyond consensual law-making in international relations. Thus, if the
judge-made law arising from the international criminal tribunals were
considered to be binding, the role of the state as an actor only bound by international
law when it so chooses would be diminished.
On the other hand, political considerations may underlie the whole
rationale of setting up an international criminal tribunal and the scope of
jurisdiction granted to it. For instance, the
In 1988 Georges Abi-Saab stated that:
“We are calling different things
custom, we are keeping the name but expanding the phenomenon.
After all, custom, if considered from a technical point of view, is not so much
the rule; it is procedure of creating the rule. These procedures are changing
under our very eyes but we are still calling them custom because of the general
recognition of custom as a source capable of creating general international
law, while other procedures (or sources) are not or not yet generally recognised
or accepted as having this potential. […] We are no longer speaking of the same
source, but we are in the presence of a very new type of law-making”.[4]
This statement illustrates that
the concept of customary international law has not been static even before the
inventive methods of custom construction by the international criminal
tribunals since the mid-nineties. Nevertheless, the assertion of Abi-Saab is
very appropriate in relation to the case law of the ICTY, discussed in more
detail in Part II, indeed because the procedure of creating a customary rule
has evolved into a quite different form from what was depicted, for example, by
Professor D’Amato in 1971. His understanding was that custom consists of
strictly limited sources of state practice; in other words, only actual physical
acts may constitute state practice for the purpose of the formation of
customary rule; and the requirement that practice is preceded or accompanied by
articulation that forms the opinio iuris of custom.[5] However, in some
areas of law where the state practice might be scarce or lacking altogether,
there is a need for modernised methods of customary law-making in order to
respond to the developing needs and interests of the international society.
Thus, here the focus is on assessing the construction of custom by
international criminal courts, the prospect of judge-made law in the field of
international criminal law, and the effects of the changing nature and
procedure of custom in international law in general. In the procedure of
forming customary rules, here reflecting international criminal law, the judge
has become a key-figure in determining the elements that are needed for a
custom to emerge, as well as in defining the applicability and definition of a
rule of customary international law.
Throughout the article, I shall focus on the case law of the ICTY,
making only infrequent references to the other international tribunals, such as
the International Criminal Tribunal for Rwanda (ICTR). This is for the reason
that the interpretation of customary international law has been the most
recurring in the cases of the ICTY, primarily because only the ICTY has been
required by its Statute to apply only law that is “beyond any doubt part of
customary law”.
II. Genesis of international customary criminal law as reflected in international
judicial decisions
A. Traditional sources of customary international law and international criminal
law
The 1945 Statute of the International Court of Justice[6] reproduces the
list of sources of international law as codified in the Statute of the
Permanent Court of Justice in the 1920,[7] and it defines
international custom as evidence of a general practice accepted as law. The
method of custom construction that is often seen to derive from Article 38 of
the Statute is here referred to as the traditional model, consisting of two
elements, state practice and opinio iuris. One of the earliest
precedents where the terminology of the traditional model was articulated was
in the case Paquete Habana by the United States Supreme Court in 1900.[8] The court held
that fishing vessels were exempt from capture as prizes of war under a rule of
customary international law, evidenced by earlier treaties, national orders and
instruction of many states and works of jurists and scholars. The two elements
of the traditional model, state practice and opinio iuris, were
further elaborated in the subsequent cases, in 1927 by the Permanent Court of
International Justice in the Lotus Case,[9] and in 1950 by the
International Court of Justice (ICJ) in the Asylum Case.[10]
The traditional model has been interpreted in various ways by courts as
well as by scholars. For example, Frederick Kirgis’s sliding scale theory from
1987 introduces the idea of the relative significance or weight of the state
practice and opinio iuris. The theory is based on the idea that “the
more destabilising or morally distasteful the activity […] the more readily
international decision makers will substitute one element for the other,
provided that the asserted restrictive rule seems reasonable.”[11] I mention the
sliding scale theory here as an example of one interpretation given to the
traditional conception of custom as a summation of the state practice and opinio
iuris, because it contains connotations similar to that of custom
construction by the international criminal tribunals. Moreover, the discretion
on determining what consists of “destabilising or morally distasteful
activity”, and thus the relative weight given to practice and opinio iuris
is left to the “international decision maker”; in other words, the judge. For
example, the ICTY has concluded in relation to the principles of humanitarian
law that these principles can materialise as customary norms even if the state
practice is scarce or nonexistent, but “the demands of humanity or the dictates
of public conscience” stress the need for such a customary norm.[12]
In the North Sea Continental Shelf Case,[13] the ICJ relied
largely on the actual state practice; whereas, in the Nicaragua Case,[14] the actual practice was not even
thoroughly examined, and instead the court gave priority to words over deeds,
emphasising the importance of opinio iuris in international custom
formation. It could be said that in the latter case the ICJ considered the
underlying issue of international peace and security so important, whether on
practical or moral grounds, that to deny a customary rule prohibiting the use
of force and intervention in the affairs of sovereign states would reduce the
significance of international law, as well as reduce confidence in the court.[15]
In international criminal courts similar rationales, international peace
and security, protection of fundamental human rights, preservation of life and
so on, could explain the need to move away from traditional model of custom
construction. In the next Part of this paper, I concentrate my analysis on a
limited number of cases, mainly from the ICTY, and discuss the methods of
constructing customary norms used in those cases and if, and how, these methods
differ from the traditional model. First, however, it is essential to go back
in history to the
B. Nuremberg military tribunal
The Nuremberg Trial of the Major War Criminals (IMT) was the first
occasion where international criminal law was applied directly by an
international tribunal.[16] It was not
entirely unprecedented, however because judicial proceedings on war crimes had
long existed, just as war crimes and aggression had been present much before
the mid-twentieth century. In the words of Georg Schwarzenberger, “unfortunately,
the history of international relations prior to 1939 does not easily lend
itself to description in terms of an international Garden of Eden in which the
original sin has still to be committed”.[17] Nonetheless, the
establishment of the
Before and at the time of the proceedings of the IMT and the
International Military Tribunal for the
Whether or not one agrees with Shklar on the absence of the natural law
basis of the jurisdiction, it is useful to examine briefly, before turning into
an analysis of the construction of custom by the ICTY, what sources the
Nuremberg tribunal invoked in instituting the international criminality of
certain acts and more precisely for this study, the sources of customary
international law.
C. Customary status of
In relation to war crimes, the
In considering the crimes against peace, the tribunal held that
prohibition to wage aggressive war had developed into a customary norm that had
been codified in the 1928 Pact of Paris (also known as the Kellogg-Briand
Pact).[22] Subsequently, some
scholars have argued that the prohibition to wage aggressive war had
undoubtedly been proscribed by the norms of natural law, and that the Pact of
Paris brought this prohibition into the sphere of positive international law,
thus being positivised natural law.[23] Although the
tribunal considered it unnecessary to define “whether and to what extent,
aggressive war was a crime before the execution of the London Agreement”,[24] it still drew
attention to a few instruments dealing with violations of peace. With the exception of the 1907 Hague
Convention IV,[25] the instruments
discussed were not legally binding, and the decision to cite them as evidence
of the emerged customary rule has later been criticised, for example by
Schwarzenberger, for not providing, at the time, a sound basis for establishing
either state practice or, moreover, opinio iuris.[26]
Schwarzenberger points to the fact that the actual practice of states
before and during the Second World War goes against the findings of the
tribunal that the prohibition to wage aggressive war had come to exist under
customary law. Various examples, including the invasion of
IMT linked the crimes against humanity to war crimes and to the crime of
aggression, and thus brought it them under the scope of customary international
law, by simply stating, without further elaboration, that “in so far as the
inhumane acts charged in the Indictment, and committed after the beginning of
the war, did not constitute war crimes, they were all committed in execution
of, or in connection with, the aggressive war, and therefore constituted crimes
against humanity”.[28] IMT, probably
intentionally, omitted entering into any discussion on whether crimes against
humanity were a new category of offences and hence ex post facto law.
Some of the official declarations made by the Allied Nations during the
Second World War condemning the acts of the Nazis were invoked in the
If one compares the right of the accused to challenge the legality of
the proceedings under customary international law in the
On the other hand, the ICTY has wider jurisdictional basis than the
Nuremberg tribunal, despite the notion that it must apply humanitarian law that
is beyond doubt customary international law, while it was held in the Nuremberg
Judgment that “the freedom of the Tribunal to apply international customary law
is limited by its overriding duty to apply the law of its Charter whether or
not such law is declaratory of existing international law”.[35] This judgment
means that in
III. International criminal ad hoc tribunals and role of the
judge in the formation of customary law
A. Establishment of the ICTY, the ICTR and their jurisdiction
Unlike with the pre-existing dispute settlement bodies, such as the
International Court of Justice, the establishment of the International Criminal
Tribunal for the former Yugoslavia and the International Criminal Tribunal for
Rwanda was not based on the consent of equal states but was a unilateral, ‘peremptory’
decision by the executive body of an international organisation, thus the
setting up of the tribunals illustrated the will of the most powerful states.
In 1993, after a number of resolutions condemning the violations of
international humanitarian law in the territory of the former Yugoslavia, the
Security Council decided by the Resolution 808 to set up International Criminal
Tribunal for the former Yugoslavia to deal with the atrocities committed after
In initiating the establishment of the ICTY by the Resolution 808, the
Security Council requested the Secretary-General to submit a report on all
aspects, for example the legal basis and the subject-matter jurisdiction,
relating to the establishment of the ICTY. The Report of the Secretary-General
Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993) sets out
a Statute for the ICTY[38] with explanations
of each article.[39] The tribunal has
the competence to apply international humanitarian law that is “beyond any
doubt part of customary law so that the problem of adherence of some but not
all states to specific conventions does not arise”.[40] Also, by
resorting to the norms that are beyond any doubt customary international law,
the court complies with the nullum crimen sine lege principle, which I
will address in more detail in Part III of this paper.
Among the sources of law applicable by the ICTY, the Report of the
Secretary-General lists international legal instruments that are also part of
customary law relating to armed conflict: the 1949 Geneva Conventions, the 1907
Hague Convention IV Respecting the Laws and Customs of War on Land (as also
discussed in Nuremberg) and the Regulations annexed to it, the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide, and the 1945 Charter
of the International Military Tribunal. Interestingly, the nature of the armed
conflict -international or internal- is not mentioned in relation to the competencies
of the tribunal’s. This omission is most likely a deliberate one, made in order
to avoid raising the question whether, and at what point in time, the conflict
in the territory of the former Yugoslavia constituted an internal as opposed to
an international conflict, and thus when the existence of the state of
Yugoslavia ended and was succeeded by six of the former Yugoslav republics. The
status of successor states in relation to the treaties signed by the
predecessor has not been ultimately clarified in international law, but it is
the prevailing view, with some exceptions to the new decolonised states, that
all states are bound by customary international norms.[41] By applying only
those norms that have become part of customary international law at the time
the alleged atrocities took place, the court, again, would act in conformity
with the nullum crimen principle. However, in its case law, the ICTY has
engaged in a discussion on the differences of the customary international norms
applicable to international and internal armed conflicts and has stated that
the international humanitarian law governs the conduct in both international
and internal armed conflicts. More precisely, by scrutinising the intention of
the Security Council in creating the Statute of the ICTY, and by employing
logical and systematic methods of interpretation, the court has concluded that
it has jurisdiction regardless of whether the acts took place during an
internal or an international armed conflict.[42]
The International Criminal Tribunal for
“The creation of the Tribunal, in
response to the alleged crimes perpetrated in Rwanda in 1994, raised the question
all too familiar to the Nuremberg Tribunal and the ICTY, that of jurisdictions
applying ex post facto laws in violation of this principle [of
prohibition of ex post facto laws]. In establishing the ICTY, the
Secretary-General dealt with this issue by asserting that in the application of
the principle of nullum crimen sine lege the International Tribunal
should apply rules of international humanitarian law, which are beyond any
doubt part of customary law. However, in the case of this Tribunal, i.e. the ICTR, it was incumbent on the
Chambers to decide whether or not the said principle had been adhered to, and
whether individuals incurred individual criminal responsibility for violations
of these international instruments”.[44]
At the time when the acts considered by the ICTR took place, in 1994,
Rwanda was a party to the Geneva Conventions,[45] both Additional
Protocols thereto,[46] as well as the
Genocide Convention,[47] and therefore
those legal instruments could be applied directly by the court, without having
to show that the norms codified in the instruments had acquired the status of
customary international law.
B. Construction of customary international law by the ICTY
The Appeals Chamber of the ICTY held in the Tadic Case (1995)
that the common Article 3 of the 1948 Geneva Conventions reflects customary
international law.[48] In analysing the
customary nature of the Article 3 encompassing rules protecting civilians in a
non-international armed conflict, the court in Tadic said that finding
evidence of actual state practice is difficult because in situations of
non-international conflicts independent observers are most often not allowed to
inspect the behaviour of the parties to the conflict in the battlefield.
Instead, the court observed that “reliance must primarily be placed on such
elements as official pronouncements of states, military manuals and judicial
decisions”.[49] The court went on
to point to various sources in reviewing the evidence of state practice and opinio
iuris relating to the protection of civilians in civil war, starting from
the declarations made during the Spanish Civil War. Confirmation of the
principles on the protection of civilians set out in the declarations was found
in the resolutions of the Assembly of the
In addition, the Tadic court stated that the results of the work
of the International Committee of the Red Cross (ICRC) are “an element of
actual international practice, this is an element that has been conspicuously
instrumental in the emergence or crystallisation of customary rules”.[51] However, the court
did not discuss whether the reports or the practical functions carried out by
the ICRC affect the formation of customary norms as such, or whether the
reports and the function are relevant merely through their influence on the
states. Nonetheless, by referring to the ICRC that is a non-governmental organisation
the court paves the way for custom formation beyond state-dominated law
creation. Furthermore, the court explicitly includes international practice as
a relevant source of customary law, and if the international practice is
understood as acts of international organs (that perhaps can be said to have
international personality) instead of merely an expression used to describe
that many states act in a same way on an international sphere, it is, yet again,
a development away from the state-domination of international law.
Moreover, two Resolutions of the United Nations General Assembly were
cited in Tadic Case as declaratory of existing principles of customary
international law: Respect of Human Rights
in Armed Conflict (1968) and Basic Principles
for the Protection of Civilian Populations in Armed Conflicts (1970).[52] Both resolutions
were adopted unanimously and served also the function of promoting the adoption
of treaties and clarifying the existing principles of the protection of
civilians in the armed conflicts.[53]
The Tadic court also referred to the statements made by groups of
states, either in intergovernmental or in supranational contexts. For example,
in 1990 the European Community and its member states drew up a declaration
regarding the situation in
In relation to the 1949 Second Additional Protocol to the Geneva
Conventions[55] applicable to
conflicts of non-international character the court acknowledged that “many
provisions of this Protocol can now be regarded as declaratory of existing
rules or as having crystallised in emerging rules of customary law or else as
having been strongly instrumental in their evolution as general principles”.[56] In determining
the customary status of some of the provisions of the Second Additional
Protocol, the Tadic court relied on “the views expressed by a number of
states” and the principles found in military manuals. Unfortunately, the
analysis of both was sparse, with limited examples of the views of states or
texts of military manuals, reference being made only to the 1987 situation of
In many points of the case Furundzija (1998) the Trial Chamber of
the ICTY examined whether customary rules prohibiting various alleged offences
exist that give rise to individual criminal responsibility.[57] The methods in
reaching conclusions varied from point to point. In relation to torture as a
war crime the court stated that the “general prohibition against torture has
evolved in customary international law”.[58] In analysing the
evolution of this prohibition, the court refrained from entering into
traditional custom formation discourse of finding evidence of state practice
and opinio iuris. Instead, it looked into written documents on the
prohibition of torture as a war crime in order to establish if the provisions
had evolved into customary law. The documents cited as evidence that a general
prohibition of torture exists under customary law include the 1863 Lieber Code,
the 1907 Hague Conventions together with the so-called Martens clause in the
preamble of the 1899 Second Hague Convention, and the 1946 Allied Control
Council Law No 10 which incorporated torture into the list of crimes against
humanity.
Geneva Conventions and the fact that they have virtually universal
ratification were invoked as the main source of evidence of the customary
nature of torture as a war crime.[59] The Furundzija
court also stated that the content of the prohibition of torture is the
same under customary international law and under the treaty law, a issue discussed
in more detail in Part III B. Even though the court did not use the traditional
vocabulary in establishing custom, it did resort to practice and declarations
of states in concluding that no state has officially authorised the use of
torture in armed conflict, and in facing allegations of torture states have
either denied the existence of such practice or condemned it as a unique error
of an individual official. By behaving in this manner, the states have not
downgraded the prohibition of torture but have accepted the normative
prohibition even when actual positive practice may not affirm it.
As the last point, the court referred to the Nicaragua Case[60] of the ICJ, a
case that did not concern torture but the formation of custom in international
law in general.[61] However, the ICJ
had stated that the common Article 3 of the Geneva Conventions, which
explicitly mentions also torture,[62] had developed
into customary international law.[63]
In order for individual criminal responsibility to arise there must exist
a definition of the elements of the crime. The court in Furundzija began
this analysis of the definition of the elements of torture by stating that
international humanitarian law does not offer such definition.[64] The definition
drawn from the Torture Convention[65] had been applied
by the ICTR in the Akayesu Case,[66] but the ICTY
considered that unless it can show that the definition has crystallised in
customary criminal law, in other words as a customary norm giving rise to
individual criminal responsibility instead of state responsibility which the
Torture Convention imposes, it cannot apply that definition in criminal cases
under its jurisdiction. The Furundzija court drew its reasoning from a
previous decision of the ICTY, Delalic (1998).[67] In looking for a
definition torture, the Trial Chamber in Delalic discussed various legal
instruments, and in relation to the Inter-American Convention to Prevent and
Punish Torture[68] it stated that
“the definition of torture contained in Article 2 thereof (the Inter-American
Convention) incorporates, but is arguably broader than, that contained in the
Torture Convention”.[69] However, the Furundzija
court in referring and agreeing with Delalic said that “Trial
Chamber II of the International Tribunal has rightly noted in Delalic
that indeed the definition of torture contained in the 1984 Torture Convention
is broader than, and includes, that laid down in the 1975 Declaration of the
United Nations General Assembly and in the 1985 Inter-American Convention”.[70] According to my
reading of the cases the Furundzija court has misread Delalic. As
noted above, in Delalic the definition in the Inter-American Convention
is said to be broader than the one in Torture Convention, whereas Furundzija
court had understood Delalic’s position oppositely.
In investigating whether a definition of torture has become to exist in
customary law and what the contents of that definition would be, the Furundzija
court held that although the definition of the Torture Convention is limited to
the scope of that Convention it can still be an authoritative source “because
it spells out all the necessary elements implicit in international rules on the
matter”.[71] The court thus
considered that it could be utilised as part of the evidence of the emergence
of a customary definition for torture. Further evidence spelling out similar or
coinciding definitions was drawn from the United Nations Declaration on
Torture,[72] which had been
adopted in the General Assembly by consensus. In addition, the court pointed to
the definitions set forth in the Inter-American Convention to Prevent and
Punish Torture and by the United Nations Special Rapporteur, European Court of
Human Rights, and the Human Rights Committee of the United Nations.[73] The court then
concluded that “the broad convergence of the aforementioned international
instruments and international jurisprudence demonstrates that there is now
general acceptance of the main elements contained in the definition set out in
the Article 1 of the Torture Convention”.[74]
The Furundzija court can be said to have had an impact on the
method of formation of customary international law by creating judge-made
custom. However, Furundzija is not an unprecedented example of a
judge-made custom. Without going into the merits of the case, in the North
Sea Continental Shelf case (1969) the ICJ implied that the formation of
custom could be said to arise not from explicit external facts but from the
judge.[75] After the ICJ
announced its decision, Wolfgang Friedmann wrote that in the North Sea
Continental Shelf Case the decision of the court was ex aequo et bono
(‘according to what is right and good’) under the disguise of interpretation.[76] Thus, the court
did not interpret law as it stood but in manner that it considered would lead
to the most just outcome for the parties to the dispute.[77] In his article
Friedmann acknowledged the same dilemma that is still deliberated with regard
to the case law of the ICTY: the focal problem of the international courts is
that “the borderlines between interpretation of existing law and the making of
new law are inevitably fluid”.[78]
The case Krstic concerned the criminal responsibility of General
Krstic for acts, including mass executions and forcible transfer of Bosnian
Muslims, which took place in Srebrenica in 1995.[79] In relation to
the killings the accused was charged with genocide, and alternatively, with
complicity to genocide. The Trial Chamber considered that the definition given
to the crime of genocide in Article 4 § 2 of the Statute of the ICTY needs to be interpreted
taking into account the customary international law at the time the act was
committed. The court, again, did not resort to finding evidence of state
practice and opinio iuris but, instead, referred to five different
sources arising mainly from the international sphere.
First, the court stated that the Genocide Convention was the main source
because Article 4 of the ICTY Statute adopts its definitions. In addition, the
Genocide Convention has been acknowledged to have codified existing norms of
international law, as was affirmed in the advisory opinion of the ICJ in Reservations
to the Convention on the Prevention and Punishment of Genocide (1951).[80]
Secondly, the court considered international case law, especially in the
ICTR, as a source of customary law. For instance, in discussing the meaning of
a ‘group’ as a target of genocide, the court recognised that in the cases Akayesu
(1998) and Kayishema and Ruzindana (2001) the ICTR confirmed the
principles put forth in preceding soft law instruments such as the UN General
Assembly resolution 96 (1946), the statement of the UN Secretariat (1948), the
ICJ judgment in the case in Reservations to the Convention on the Prevention
and Punishment of Genocide (1951), and finally by the International Law
Commission (1996).
Thirdly, the reports of international committees, for instance the
Report of the International Law Commission on the Draft Code of Crimes against
Peace and Security of Mankind, were stated to be relevant for the
interpretation of the Article 4 of the ICTY Statute.
Fourthly, the preparatory works and the draft text of the Rome Statute
of the International Criminal Court were viewed as evidence of the status of
customary international law on genocide. By assessing that the draft text
produced by Preparatory Commission for the ICC constitutes evidence of the opinio
iuris of the states, the court demonstrated that the traditional model of
“state practice supported by opinio iuris” has not entirely vanished in
the vocabulary of the construction of custom by the ICTY.
Finally, the court evaluated the “legislation and practice of states,
especially their judicial interpretations and decisions”.[81] For example, the
court referred to the French Criminal Code and a decision by the
However, as in the Furundzija Case, the concepts of state
practice and opinio iuris as understood in the traditional construction
of customary law were not really articulated. Also, it is surprising,
especially in the light of the traditional approach of the construction of
customary international law that the court does not draw any distinctions
between legally binding documents, actual practice of states, and the so-called
soft law documents such as General Assembly resolutions.[82]
In the Hadzihasanovic case (2003), which was concerned with the
definition of command responsibility, the Appeals Chamber returned to
the traditional construction of custom and stated that “to hold that a
principle was part of customary international law, it has to be satisfied that state
practice recognised the principle on the basis of supporting opinio iuris”[83] and that “it is
the task of a court to interpret the underlying state practice and opinio iuris”.
In this connection, it should be noted that the two ad hoc
tribunals have adopted somewhat different approaches to the impact of the Rome
Statute on their construction of customary law. The ICTY stated in the Furundzija
case that “in many areas the Statute may be regarded as indicative of the
legal views; i.e., opinio iuris
of a great number of states; […] depending 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”.[84] By contrast, in
determining which acts can fall under the category of crimes against humanity,
the ICTR in the Akayesu Case referred to the list in Article 7 of the
Rome Statute but only after a lengthy deliberation on other sources defining
crimes against humanity, for example the Charter of the International Military
Tribunal (1945) and the cases of Eichmann (1961), Barbie (1988),
and Touvier (1994).[85]
In the 2000 Kupreskic case, concerning the ethnic cleansing of
the Bosnian Muslims in the Lasva River Valley, the Trial Chamber of the ICTY
discussed whether the attacks on the civilian population were absolutely
prohibited under international humanitarian law, and whether the rules
prohibiting such acts had become part of customary international law, hence
falling under the jurisdiction of the ICTY.[86] The Trial Chamber
invoked various sources of evidence for the customary nature of the
prohibition.
First, it held that the 1938 Resolution of the Assembly of the League of
Nations stating that “the intentional bombing of civilian population is
illegal”, confirmed by the ICJ in the Legality of the Threat or the
Use of Nuclear Weapons Advisory Opinion, is a universally recognised
principle.
Secondly, once again, Geneva Conventions were referred to in relation of
the demise of the rights of the civilians in a situation where they abuse those
rights.
Thirdly, after implying that the prohibition of attacking the civilian
population is not an absolute proscription, the court mentioned two general
principles: the duty to take reasonable care and the principle of
proportionality. According to the court, these principles have been codified in
the First Additional Protocol to the Geneva Conventions, and the court
concluded that “such provisions […] are now part of customary international
law, not only because they specify and flesh out general pre-existing norms,
but also because they do not appear to be contested by any state, including
those that have not ratified the Protocol”.[87] The court
continued by stating that these principles fall into the area of “elementary
considerations of humanity”, and it listed three cases of the ICJ, Corfu
Channel Case, Nicaragua Case and Legality of the Threat or Use of
Threat of Nuclear Weapons Advisory Opinion, that illustrate these
considerations as general principles of international law. The court confirmed
its previous case law to the effect that many provisions of the First
Additional Protocol have acquired the status of customary international law.
In relation to the Martens Clause, which the court held to be expressive
of customary international law because of the “authoritative view of the ICJ”,
the court considered that the “principles of humanity” and the “dictates of public
conscience”, as these has already been formulated in the 1907 Hague Convention,
cannot be seen as independent sources of international law. It is noteworthy
that the court nevertheless regarded this denial to a relevant issue to be
articulated in the judgment, as if to say that according to some interpretation
the principles of humanity and dictates of public conscience could have
materialised as independent sources.
Perhaps the most outspokenly progressive idea in Kupreskic
judgment is a reformulation of the ‘sliding scale’ approach to customary
international law introduced by Frederick Kirgis in an article of 1987.[88] Kirgis had suggested that it is possible to
disregard either state practice or opinio iuris entirely if there is a
very strong evidence of the other one. He had supported this ‘sliding scale’
theory by a notion of reasonableness and moral considerations: “the more
destabilising or morally distasteful the activity […] the more readily
international decision makers will substitute one element for the other,
provided that the asserted restrictive rule seems reasonable”.[89] In relation to
the reprisal attacks against civilians, the court pronounced in Kupreskic
that:
“There does not seem to have emerged
recently a body of state practice consistently supporting the proposition that
one of the elements of custom, namely usus or diuturnitas[90]
has taken shape. This is however an area where opinio iuris sive
necessitates may play a much greater role than usus, as a result of
the aforementioned Martens Clause. In the light of the way states and courts
have implemented it, this Clause shows that principles of international
humanitarian law may emerge through a customary process under the pressure of
the demands of humanity or the dictates of public conscience, even where state
practice is scant or inconsistent”.[91]
Significantly, the court considered the importance of the case law in
the formation of customary norms. It accepted that in international tribunals
the stare decisis principle of common law countries has no direct
application, even though the Trial Chamber of the ICTY must follow the
decisions of the Appeals Chamber. The court went on to state that “the
precedents may constitute evidence of customary rule in that they are
indicative of the existence of opinio iuris sive necessitates and
international practice on a certain matter, or else they may be indicative of
the emergence of a general principle of international law”.[92] Without further
analysis, the court said that the decisions of international courts carry much
more weight in the formation of customary rules than the decisions of national
tribunals, because “international judgments […] are at least based on the same corpus
of law that is applied by international courts”.[93]
This Part has illustrated the wealth of sources used by the ICTY in
establishing that a rule of customary international law has emerged. From the
case law one can deduct an apparent extension of the variety of the elements in
the custom formation, and the significance of the judge in determining where to
look for those elements. In addition, the judge has the task of reading in
definitions for the customary rules, rules that sometimes have no previous
judicial applications.
IV. Conceptual tensions in judicial application and construction of
international customary criminal law
A. International customary criminal law and principles of legality
There has been academic discourse on whether the Charter of the
International Military Tribunal codified, and the
The principles of legality are comprised of the nullum crimen sine
lege principle (“no crime without law”) and the nulla poena sine lege
principle (“no punishment without law”). According to a contemporary
commentary, there are four elements to the nullum crimen principle: the
concept of written law, the value of legal certainty, the prohibition on
analogy, and non-retroactivity.[94] However, it is
noteworthy, that sometimes the concept of the principles of legality is used to
refer to merely to the nullum crimen principle (and in a fewer instances
only to the nulla poena principle). Likewise, occasionally, the
principle nullum crimen is taken to consist of only one or two of the
elements, most often of only the non-retroactivity. For the reason of these
inconsistencies, the analysis of the case law or the works of scholars is not
always unequivocal.
In the
The trial of Adolf Eichmann in Israel in 1961 which is as a whole -luckily-
more of an exception in its rather arbitrary interpretation of international
law, is an example of the court denying the applicability of the principles of
legality in order to reach what the court saw was the only possible moral
outcome. Court basically stated that the acts Eichmann was accused of had been
prohibited under customary international law “since time immemorial” and at the
same time denied that the principle of nullum crimen sine lege, nulla poena
sine lege had yet developed into a customary rule.[97]
The case law of the International Military Tribunal has been relied on
and reasserted for example in the Canadian case Regina v. Finta, where
the accused was a former Hungarian general suspected of Nazi war crimes and
crimes against humanity. Justice Cory quoted Kelsen by stating that “to punish
those who were morally responsible for the international crime of the Second World
War may certainly be considered as more important than to comply with the
rather relative rule against ex post facto laws, open to so many
exceptions”.[98] On the reverse,
in the ICTY case Erdemovic (1997) the Presiding Judge Cassese in his
separate and dissenting opinion stated that “policy-oriented approach in the
area of criminal law runs contrary to the fundamental principle nullum
crimen sine lege”.[99] Subsequently, though,
in 2006, Professor Cassese first referred to the principle of substantive
justice embraced by the
A subsequent former President of the ICTY, Professor Meron, has recently
taken a conservative view on compliance with the principles of legality in
constructing, or creating, customary international law: “in my view the looser,
more progressive approach to the analysis of customary international law
embraced by dissents -one that would affirmatively engage the criminal tribunal
in the development of customary law, rather than simply in its
application- cannot be reconciled with the legality principle”.[102] From this
comment can be deduced that Professor Meron rejects the idea that the judges,
here presumably main emphasis being on the ICTY, play a role in the evolution
of customary norms. However, Meron accepts that “a more relaxed approach to the
identification of relevant customary norms may be justified where a norm in
question does not concern the substantive scope of the criminal prohibition, or
of the defendant’s liability, and thus does not directly implicate the nullum
crimen principle”.[103] He does not
offer any further reasons or analysis on why the method of custom construction
should be different in “non-substantive scope of criminal prohibition or
defendant’s liability” than in the substantive matters, nor explanation on
whether it is for the judge himself to determine when “a more relaxed approach”
could be resorted to. Interestingly, nearly two decades earlier, much before
being elected as a judge to the ICTY and before there was any indication that
such tribunal would be established - Professor Meron wrote that “the tribunals
have [thus] been guided, and are likely to continue to be guided, by the degree
of offensiveness of certain acts to human dignity; the more heinous the act,
the more the tribunal will assume that it violates not only a moral principle
of humanity but also a positive norm of customary law”.[104] So, it seems
that Meron’s experience as a judge in the ICTY, perhaps surprisingly, made him
embrace a more restrictive approach on the role of international criminal judge
in the development of customary international law.
In relation to the application of customary international law by the
international criminal judge and the compliance with the nullum crimen principle,
the problem has been the imprecision of some of the customary norms; even
though it can be shown that a general prohibition in customary international
law has emerged, its scope and substance must be determined by the judges. For
example, despite the general recognition that torture can constitute a war
crime and a crime against humanity, the court in the Furundzija (1998)
case, discussed in more detail above in Part II, was left with the task of
determining on the basis of various sources including human rights treaties
what the elements of torture are, and if rape could be a form of torture and
thus a war crime and a crime against humanity.[105] Furthermore, the
Appeals Chamber of the ICTY stated in the case Delalic (2001),[106] referring to the
previous Aleksovski Case (2000),[107] that “the
principle of nullum crimen sine lege does not prevent a court from
interpreting and clarifying the elements of a particular crime”.[108] Subsequently
even more avant-garde approach has been put forward in the joint Milutinovic,
Sainovic and Ojdanic Case (2003), where the Appeals Chamber held that the nullum
crimen principle prevents the court from creating new law and from
interpreting existing law “beyond reasonable limits of clarification” but does
not preclude “the progressive development of law by the court”.[109] The court found
support for the latter view in the case law of national courts as well as the
European Court of Human Rights. Mohamed Shahabuddeen, a current judge in the
ICTY, has implicated that as long as the interpretation, or even the expansion,
of the elements of the crime are “within the very essence of the original crime
even though not corresponding to every detail of it”, the court does not
infringe the nullum crimen principle.[110]
It has been suggested that the breach of the nullum crimen principle
could be justified by the rationale that those who commit the most heinous
atrocities should not go unpunished even when no clear legal rule has
prohibited the acts at the time they were committed.[111] If one adopts
the view that the judges may create new law, perhaps a more substantive
justification for retroactive application of the principles of law is that “the
principle[s] of legality is […] a principle of justice flowing from
natural law doctrine”.[112] The
B. Applicability of human rights norms directly in international criminal
proceedings
Deducing international criminal law that gives rise to individual
criminal responsibility directly from treaties that were intended to be applied
between the state parties has been thought somewhat troublesome already in the
1940s after the
The problem has been further elaborated by the ICTY. For example, in the
case Furundzija (1998), the Trial Chamber stated that albeit torture is
prohibited under humanitarian law, that area of law does not provide a
definition for torture as a war crime.[119] The court
referred to a case decided less than a month previously, Delalic (1998),
where another Trial Chamber derived a definition for torture, which it said was
consistent with customary international norms, directly from human rights law.[120] More precisely,
the court in Delalic attained its findings for this definition from
various human rights instruments -both legally binding as well as non-binding-
both international and regional, for example the Universal Declaration of Human
Rights, the European Convention on Human Right, the American Convention on
Human Rights and the African Charter on Human and Peoples’ Rights.[121] In considering
the instruments focusing just on torture -the Torture Convention, the United
Nations General Assembly Declaration on the Protection from Torture, and the
Inter-American Convention to Prevent and Punish Torture- the court concluded
that “the definition of torture contained in the Torture Convention includes
the definitions contained in both the Declaration on Torture and the
Inter-American Convention and thus reflects a consensus which the Trial Chamber
considers to be representative of customary international law”.[122]
The interpenetration of human rights law, in relation to torture, to
international criminal law was further discussed in the case Kunarac
(2001).[123] After reviewing
again many human rights instruments and the case law of various legal systems,
the court concluded that:
“The definition of torture contained
in the Torture Convention cannot be regarded as the definition of torture under
customary international law which is binding regardless of the context in which
it is applied. The definition of the Torture Convention was meant to apply at
an inter-state level and was, for that reason, directed at the states’
obligations. […] The definition of torture contained in Article 1 of the
Torture Convention can only serve, for present purposes, as an interpretational
aid”.[124]
Furthermore, the Trial Chamber in Kunarac held, challenging the
argumentation of Delalic, that “the definition of torture under
international humanitarian law does not comprise the same elements as the
definition of torture generally applied under human rights law”.[125]
It is interesting to ask what led the court to depart from the previous
decisions in this case. The main substantial difference to human rights
instruments in the court’s interpretation of the elements of torture was that
the involvement of a state -the requirement that the offence is carried out by
a state official- was perceived by the court as ‘peripheral’.[126] From these
decisions it is possible to perceive a move towards the construction of
customary criminal law independently from the impetus of human rights law.[127] This move
“toward the formation of a fully-fledged body of law in this area”[128] illustrated the
impact of the decisions of the international criminal judge on the general body
of international law - here, the disintegration of human rights law and
international criminal law.
V. Conclusion
In international criminal law, the decisions of courts play an
increasing role in custom formation despite some academic opposition to the
active role of the judge in the development customary international norms. In
the judicial decisions, resolutions and statements of non-state institutions
are increasingly accepted as evidence of state practice, opinio iuris,
or even both, contributing to the custom formation. Moreover, the international
criminal judge has the discretion to determine which sources are invoked as
evidence of customary norm, and thus, the choices of the judge may influence
the general theory of how customary international law forms.
In some cases -for instance, in Tadic-, the ICTY has implied that
declarations and even practice of non-state organs, whether international
organisations, NGOs, or secessionist movements, could have a direct impact on
the formation of customary international law. A question arises, therefore,
whether the concept of state practice as an element of custom is becoming
outdated, at least in some fields of international law. Moreover, we can ask
whether the developments in international criminal law, and more precisely in
the interpretation of law by the international criminal tribunals, reflect a
completely new source of evidence of international law in which the role of the
international judge is vital for determining the substance and definition of a
customary norm.
It has been claimed that “continental
writers of positivistic allegiance” have been unwilling to admit that the
interpretations of law by judges shape and even afford to the development of
customary international law.[129] However,
especially the UN ad hoc tribunals, mostly the ICTY, have had a large
impact on the formation of international criminal norms, just like the
Two conceptual issues, the application of the principles of legality and
customary human rights law in international criminal tribunals, are still in
the midst of academic as well as practical discourse. Also in relation to these
issues uniformity is desired and the discretion of the individual judges should
be limited in order to provide for legal certainty and consistent development
of international criminal law. International criminal law is moving away from
the traditional human rights law as the case law illustrates in relation to the
issue of direct applicability of customary human rights law in international criminal
law tribunals where individual responsibility, instead of the state
responsibility, is at stake. The decisions of the international criminal judge
influence not only the future method of formation of customary international
law in international criminal law but also its interface to human rights law
and the theory of custom formation in general public international law.
The previous sections show that there is a definite need for greater consistency in the formation of customary international norms in the ICTY. Different judges and chambers have, even in the phase of ten years, interpreted, applied and also created customary norms using very diverse approaches and methodology. For the further development of customary criminal law it is necessary to establish a common and consistent system of the custom formation and the role of the judge thereto, not least in order to ensure compliance with the principles of legality, such as the nullum crimen principle. It can be expected that the newly instigated International Criminal Court will provide more detailed techniques on this matter. The applicable law as well as the Rules of Procedure and Evidence and the Elements of Crimes of the ICC were quite firmly defined and adopted by the Assembly of States Parties, unlike in the situation of the ICTY where the Rules of Procedure and Evidence were left for the first judges to determine themselves.
I conclude on a quotation, which not only
captures the crux of this paper but also entices for future studies on the nature
of modern customary international law: “time has come […] to articulate
different types (and elements) of [customary international law] in relation to
different subject matters and areas”.[130]
* PhD candidate,
European University Institute,
[1] In relation to international judicial
decision-making in general, Professor Teson has written that “the commendable
purpose [of not having to abandon the positivist illusion], however, should not
obscure what is really going on: the adjudication of cases reveals, rather than
an interest in finding patterns of state behaviour, an impulse to decide cases
correctly by applying the best, just, fair, or efficient rules”; in F.R.
Teson, A Philosophy of International Law, Boulder, Westview, 1998, p. 91.
[2] For some references, see G. CLARK, “Yet another example of victor’s justice”, The Japan
Times, 22 July 2001; for a more detailed discussion on the nature of
political trials, see R. Christenson, “A Political Theory
of Political Trials”, Journal of Criminal Law and Criminology, 1983, pp. 547-578, at p. 547.
[3] For critical commentary, see M.
Mandel, How
[4] Comment of Georges Abi-Saab in
the discussion on the sources of international law in A. Cassese and J.H.H.
Weiler, Change and Stability in International Law-Making, Florence, European University Institute, 1988,
p. 10.
[5] A.
D’Amato, The Concept of
Custom in International Law,
[6] Statute of the International Court of Justice,
[7] Statute of the Permanent Court of Justice,
[8] United States Supreme Court, Paquete Habana Case,
[9] I.C.J., Lotus Case [
[10] I.C.J., Asylum Case [Colombia/Peru],
[11] F.L. Kirgis, “Custom
on a Sliding Scale”, American Journal of International Law, 1987, pp. 146-151, at p. 149.
[12] I.C.T.Y., Prosecutor v. Kupreskic, IT-95-16-T, Judgment,
[13] I.C.J.,
[14] I.C.J., Military and Paramilitary Activities in
and against
[15] H.C.M. Charlesworth,
“Customary International Law and the
[16] IMT was set up by Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, and the Charter of
the International Military Tribunal,
[17] G. Schwarzenberger,
“The Judgment of
[18] See, for example, S.
Garibian (translated from French by G. M. Goshgarian),
“Crimes Against Humanity and International Legality in Legal Theory after
[19] J.N. Shklar, Legalism:
Law, Morals, and Political Trials,
[20] Hague Convention IV Respecting the Laws and Customs of War on Land,
[21] I.M.T.,
[22] General Treaty for the Renunciation of War
as an Instrument of National Policy,
[23] See, for example, Q.
Wright, “War Crimes under International Law”, Law Quarterly
Review, 1946, pp. 40-52;
for more general discussion, see Q. Wright, “The Law of the
Nuremberg Trial”, American Journal of International Law, 1947, pp.
38-72.
[24] I.M.T.,
[25] The judgment refers to the 1923 Draft Treaty of Mutual Assistance, 1924
[26] G. Schwarzenberger, “The Judgment of
[27] Ibid.,
at pp. 347-348.
[28] I.M.T.,
[29] Resolution 3(I) on Extradition and Punishment of War Criminals, 13
Feb. 1946; Resolution 95(I) on
Affirmation of the Principles of International Law recognised by the Charter of
the Nuremberg Tribunal, 11 Dec. 1946.
[30] For example, House of Lords, R. v. Bow Street Metropolitan Stipendiary
Magistrate and Others (Ex parte Pinochet Ugarte), 25 Nov. 1998, [2000]
[31] For example, see 1950 European Convention on Human Rights, Article 6; 1966 International Covenant on Civil and
Political Rights, Article 14.
[32] I.C.T.Y., Appeals Chamber, Prosecutor v. Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
[33] “A plea that the sovereignty of a state has
been violated, a plea only a sovereign state may raise or waive and a right
clearly the accused cannot take over from that state”; Ibid. at §§ 41-42.
[34] Ibid, § 57. For further commentary, see A.
Birdsall, “The International Criminal Tribunal for the former
[35] I.M.T.,
[36] United Nations Security Council Resolution 808,
[37] United Nations Security Council
Resolution 955,
[38] Statute of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991, 25 May
1993, UN SC Res. 827, 32 I.L.M. 1203
(1993).
[39] Report of the Secretary-General Pursuant to Paragraph 2 of the Security
Council Resolution 808,
[40] Ibid.,
§ 34.
[41] For further elaboration, see for example P.
Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., London, Routledge, 1997,
at pp. 47 (state succession and customary international law) and 161-172
(general description of state succession in international law).
[42] For instance: Tadic, supra
note 32, § 137.
[43]
Statute of the International Criminal Tribunal for the Prosecution of Persons
Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens
responsible for genocide and other such violations committed in the territory
of neighboring states, between 1 January 1994 and 31 December 1994, 8 Nov. 1994, UN SC Res. 955, 33 ILM 1598.
[44] I.C.T.R., Prosecutor v. Rutaganda, ICTR-96-3,
[45] 1949 Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in the Field, 75 UNTS, 31; 1949 Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS, 85; 1949 Geneva Convention Relative to the
Treatment of Prisoners of War, 75 UNTS, 13; 1949 Geneva Convention Relative to the Protection of Civilian Persons
in Time of War, 75 UNTS, 267; all adopted on 12 Aug. 1949.
[46] 1977 Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts;
1977 Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts, 16 ILM 1391 and 1442; both adopted on 8
June 1977.
[47]
Convention on the Prevention and Punishment of the Crime of Genocide,
[48] Tadic, supra note 32, § 99.
[49] Ibid.
[50] References are made to the 1967
conflict in Yemen, the statement of the Prime Minister of Congo in 1964 during
the civil war in Congo, the 1967 Operational Code of Conduct for Nigerian Armed
Forces and the 1988 statement by the rebels in El Salvador; Tadic, supra note 32, §§ 105-107.
[51] Ibid., § 109.
[52] United Nations General Assembly Resolutions 2444 and 2675 (respectively).
[53] Tadic, supra note 32, § 112.
[54] Ibid., § 16.
[55] 1977 Additional Protocol II, supra note 46.
[56] Tadic, supra note 32, § 117.
[57] I.C.T.Y., Prosecutor v. Furundzija, IT-95-17/1-T, Judgment,
[58] Ibid., § 137.
[59] Ibid.,
§ 138; in the previous paragraph the court referred in passing to a decision of
the Constitutional Court of Columbia which had held that the Geneva Conventions
and also the Additional Protocols thereto have in their entirety become
customary law.
[60]
[61] Furundzija, supra note 57, § 138.
[62]
[63] For discussion, see T.
Meron, “The Geneva Conventions as Customary Law”, American Journal of International Law, 1987, pp. 348-370.
[64] Furundzija, supra note 57, § 159.
[65] Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
[66] I.C.T.R., Prosecutor v. Akayesu, ICTR-96-4-T, Judgment,
[67] I.C.T.Y., Prosecutor
v. Delalic and Others, IT-96-21-T, Judgment,
[68] Inter-American Convention to Prevent and Punish Torture,
[69] Delalic, supra note 67, § 458.
[70] Furundzija, supra note 57, § 160.
[71] Ibid.
[72] Declaration on the Protection of All Persons from Being Subjected to
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 9 Dec. 1975, UN GA Res. 3452, UN Doc. A/10034.
[73] Furundzija,
supra note 57, § 160.
[74] Ibid.
§ 161.
[75] I.C.J., North Sea Continental Shelf Cases, supra note
13.
[76] W.
Friedmann, “The
[77] Eyal Benvenisti has presented a
theory of custom formation based on efficiency. He has suggested that in the Gabcikovo-Nagymaros
Project Case the ICJ bypassed the traditional construction of customary
norms in relation to environmental issues. Benvenisti considers that “the ICJ
has […] the power to invent custom” if the newly formed custom is more
efficient, no other entity is taking active steps towards the same goal, and
treaties (or treaty negotiations) between states have been inefficient, usually
because of the non-reciprocal nature of the issues at hand in the custom
formation. Despite the disputable nature of this interpretation, perhaps
something from the efficiency argument could be incorporated into the
construction of custom by international criminal tribunals. This, however, so
far has not been really at the focus of my research, but it is an initiative to
be kept in mind while analysing the construction of customary norms by the
international criminal courts.
[78] W. FRIEDMANN, “The
[79] I.C.T.Y., Prosecutor v. Krstic, IT-98-33-T, Judgement,
[80] I.C.J., Reservations to the Convention on the Prevention and
Punishment of Genocide, Adv. Op.,
[81] Krstic, supra note 79, § 541.
[82] The role of General Assembly
resolutions in custom formation has not been agreed upon. Akehurst has
stated that only those resolutions which claim to be declaratory of existing
law, thus lex lata, can be used as authoritative evidence of state
practice of customary law by the courts; see M. Akehurst, “Custom
as a Source of International Law”, British Yearbook of International Law, 1974-1975, pp. 1-53, at p. 6. On
the other hand, Judge Ammoun adopted wider approach in
his separate opinion in the Barcelona Traction Case by stating that positions taken by delegates of states in
international organisations and conferences, with a special emphasis on the
United Nations, “naturally form part of state practice”; ICJ, Barcelona Traction, Light and Power Company Limited [Belgium
v. Spain)], 5 Feb. 1970, Separate Opinion of Judge Ammoun.
[83] ICTY, Appeals Chamber, Prosecutor
v. Hadzihasanovic, IT-01-47-AR72, Decision
on Interlocutory Appeal Challenging Jurisdiction in Relation to Command
Responsibility,
[84] Furundzija, supra note 57, § 227; for some
commentary, see R. Cryer, “International Criminal Law v. State
Sovereignty: Another Round?”, European Journal of International Law, 2005, pp. 979-1000, at p. 992.
[85] Akayesu, supra note 66, §§ 563-577.
[86] Kupreskic, supra note 12, § 521.
[87] Ibid.,
§ 524.
[88] F.L. Kirgis, “Custom
on a Sliding Scale”, supra note 11.
[89] Ibid.,
at p. 149.
[90] Usus = use, experience,
skill, advantage, profit, to use, employ, possess, enjoy. Diuturnitas =
lasting a long time, of long duration. Results for were found using the
Internet version of the Latin Dictionary of the University of Notre Dame: http://archives.nd.edu/latgramm.htm.
[91] Kupreskic, supra note 12, § 527.
[92] Ibid., § 540.
[93] Ibid., § 542.
[94] See S. Lamb, “Nullum Crimen, Nulla
Poena Sine Lege in International Criminal Law”, in A. Cassese, P. Gaeta and J.R.W.D. Jones, The
Rome Statute of the International Criminal Court: A Commentary, Volume I, Oxford, Oxford University
Press, 2002, Chapter 20, at p. 733.
[95] Ibid., at p. 740, note 30.
[96] C.M.
Bassiouni, Crimes against
Humanity in International Criminal Law,
[97] Supreme Court of
[98] Supreme Court of
[99] ICTY, Appeals Chamber, Prosecutor v. Erdemovic,
IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese,
[100] A. Cassese,
“Balancing the Prosecution against Crimes against Humanity and Non-Retroactive
Criminal Law: The Kolk and Kislyiy v.
[101] Ibid, at p. 417.
[102] T. Meron, “Revival of
Customary Humanitarian Law”, American Journal of International Law,
2005, pp. 817-834, at p. 825.
[103] Ibid.,
at p. 829.
[104] T. Meron, “The
[105] Furundzija, supra note 57, §§ 159-186.
[106] ICTY, Appeals Chamber,
Prosecutor v. Delalic, IT-96-21-T, Judgment,
[107] ICTY, Appeals Chamber, Prosecutor v. Aleksovski,
IT-95-14/1-T, Judgment,
[108] Delalic, supra note
106, § 173.
[109] ICTY, Appeals Chamber, Prosecutor v. Milutinovic,
Sainovic and Ojdanic, IT-99-37-AR72, Decision
on Dragoljub Ojdanic’s Motion Challenging Jurisdiction, 21 May 2003, §§ 37-38.
[110] M. Shahabuddeen,
“Does the Principle of Legality Stand in the Way of Progressive Development of
Law?”, Journal of International Criminal Justice, 2004, pp. 1007-1017.
[111] For references, see G. Endo, “Nullum Crimen Nulla
Poena Sine Lege Principle and the ICTY and ICTR”, Revue québécoise de
droit international, 2005, pp. 205-219.
[112] S. Garibian, “Crimes
against humanity and international legality in legal theory after
[113] I.M.T.,
[114] Rome Statute, Article 11 § 1; for further
discussion, see H-H. JESCHECK, “The General Principles of International
Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute”, Journal
of International Criminal Justice, 2004, pp. 38-55.
[115] General Treaty for the Renunciation of War as an Instrument of National
Policy, supra note 22.
[116] For comments, see G. Schwarzenberger,
“The Judgment of Nuremberg”, at pp. 346-347.
[117] In my view a too narrow explanation
is that “if a human rights treaty or humanitarian law treaty includes a penal
provision directed at individual accountability, then obviously such treaty
overlaps with international criminal law”; C. de Than and E. Shorts, International Criminal Law and Human Rights,
London, Sweet and Maxwell, 2003, at pp. 12-13.
[118] See, for example, the decision: E.C.H.R., Osman v. the United
Kingdom,
[119] Prosecutor v. Furundzija, supra note 57, § 159.
[120] Delalic, supra note
67,
[121] Ibid.,
§§
452-458.
[122] Ibid.,
§
459.
[123] I.C.T.Y., Prosecutor v.
Kunarac, IT-93-23-T
& IT-96-23/1-T, Judgment,
[124] Ibid.,
§ 482.
[125] Ibid.,
§ 496.
[126] Ibid., § 493.
[127] See, for instance, S.R. RATNER, “The
Schizophrenias of International Criminal Law”, Texas International Law
Journal, 1998, pp. 237-256.
[128] A. CASSESE,
“International Criminal Law”, in M.D. EVANS, International Law,
Oxford, Oxford University Press, 2003, Chapter 23, at p. 724.
[129] R. Kolb, “Selected Problems in the Theory of Customary
International Law”,
[130] Ibid.