Finding Custom: The ICJ and the International Criminal Courts and Tribunals Compared

Abstract

This chapter analyses the use of customary international law by international criminal tribunals through a different lens. It examines whether the method that international criminal courts and tribunals use to determine the existence of a rule of customary international law constitutes an instance of fragmentation in itself. More specifically, the chapter investigates whether and to what extent international criminal courts and tribunals depart from the conventional methodology of identifying custom in the realm of public international law. The fact that an international criminal tribunal uses customary international law is not remarkable from the international perspective, as customary international law is an accepted source of public international law. The chapter focuses on the treatment of customary international law by the adhoc Tribunals. The tribunals' methodology will be compared and contrasted to the conventional approach of the International Court of Justice (ICJ). Keywords:customaryinternational law; international court of justice (ICJ); international criminal courts; international criminal tribunals; public international law