International Criminal Tribunals and the Sources of International Law: Antonio Cassese's Contribution to the Canon

Abstract

This piece looks at the approach of Antonio (Nino) Cassese to aspects of the sources of international law. After a small set of personal reflections, it begins by discussing Cassese’s general approach to international law, flagging up the co-existence of positivist and more naturalistic/humanistic approaches in his academic writings. It then moves on to how Cassese brought these approaches to his judicial work, in a manner which is termed ‘presentational positivism’. The piece explains this through an analysis of his contribution to the Tadić, Erdemović, and Kupreškić et al. cases, and attempts to explain how what, at first view, might seem to be different approaches in those cases to international law in fact reflect Cassese’s broader, humane view of international law. It then turns to his judicial and academic reflections on the authority of case law and how that relates to the level of reasoning they contain. This is investigated with particular reference to the difference of opinion between the ICTY and International Court of Justice (ICJ) in the Tadić and Bosnian Genocide cases, with a specific focus on how he sought to engage the ICJ in reasoned inter-judicial debate. It concludes with a comparison of Cassese with another major figure of 20th-century international law who sought to reconcile humanitarian impulses with often positivist presentations of international law, Sir Hersch Lauterpacht.