| dc.description.abstract | The thrust of this Paper is to analyse the transformation of international custom construction and creation from the model of state practice supported by opinio iuris to a new concept reflected in the judicial decision of the international criminal tribunals, with the main emphasis being on the case law of the International Criminal Tribunal for the former Yugoslavia.
The following questions are examined in analysing the interpretation, application, and in some instances, also the creation of customary international norms: from which sources do the judges look for evidence of customary international law? Is the requisite of actual state practice diminishing? What is the significance of international treaties, reports of international committees, and international case-law as sources of custom? Does the case law of the tribunals show that the role of the judge is more prevalent than traditionally in the formation of customary international law, at least in the area of international criminal law?
The first part of the paper offers an analysis of customary law in the International Military Tribunal of Nuremberg, which, along with many post-Second World War legal instruments, case law, and academic commentary, has contributed to and clarified the content of customary norms in international criminal law.
The second part reviews the decisions of the International Criminal Tribunal for the former Yugoslavia in relation to the concept, formation, and context of customary norms. In addition, the aim is to examine if the approach of the Tribunal on the construction of customary norms has changed during its period of functioning. The role of the judge in construction and in some instances, creation of customary international norms is discussed with references to the judicial decisions of the Yugoslavia Tribunal. I conclude that the dynamic approach adopted by judges in the construction of customary law in some cases of the Yugoslavia Tribunal is not unprecedented in the decisions of international courts.
The third part discusses the problem of conflicting norms that may arise in the application and construction of customary criminal norms in international criminal tribunals. First, I conduct a limited conceptual and historical analysis of the principles of legality, the nullum crimen sine lege and the nulla poena sine lege principles, and I attempt to answer the substantive issues: how can the principles of legality be retained in the application of customary international norms by the international judge, and whether the progressive formation of custom (moving away from the requirement of ‘constant and uniform state practice’ supported by opinio iuris) destabilises legal certainty, which should be especially endorsed when an individual’s (here meaning the accused) freedom is at issue? The final dilemma in relation to conflicting norms is that of deducing international criminal norms that give rise to individual criminal responsibility directly from treaties that were intended to be applied between the state parties.
I conclude this paper by stating that the judges not only interpret, but also have an impact on the formation of customary international law because their decisions can be seen as evidence of (international) practice or as a reflection of opinio juris. Finally, this paper shows that there is a definite need for greater consistency in the formation of customary international norms in international criminal tribunals. | en |
