Abstract
The object of this article is to describe how two ad hoc international criminal tribunals dealt with the issue of following and explaining norms of customary international law. In order to do that the representative decisions and judgments of international criminal courts are citied and examined. The first part is a description of the sources of law for criminal tribunals, with emphasis on the international custom. The second consists of the analysis of the international criminal courts’ approach to the two-element theory of customary international law. It is followed with an enquiry into the content of customary international law: concerning both jurisdiction and substance of customary international law. Keywords: International Customary Law, ICTR, ICTY, jurisprudence
Highlights
Judicial decisions of the international tribunals have always been treated as a subsidiary source of law
The above was confirmed by jurisprudence, as the ICTY explicitly said that the tribunal is not bound by previous doctrine, but ‘must apply customary international law as it stood at the time of the offences.’12 In another case, it was explained that the departure from the established line of reasoning should be done in the interests of justice in cases ‘where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per in curiam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law.’13
According to the chambers the liability for this has existed in the customary international law at least since 1992.73 It was confirmed by the Appeal Chamber in Dordević that, according to the ICTY jurisprudence, the JCE applies to all crimes within the Tribunal's jurisdiction
Summary
Judicial decisions of the international tribunals have always been treated as a subsidiary source of law. The rulings are not binding upon States, apart from the parties to particular proceedings, but their prominence is so high that many judgements are treated as a reflection of international law It is even more so with the rules of customary international law, and courts’ rulings either confirm the existence of a particular rule and its content, or influence the future practice of States and international organisations so that it becomes one.. Customary international law was an important source of law for ad hoc international criminal courts: for Rwanda (the ICTR) and former Yugoslavia (the ICTY). Both tribunals found there grounds for both jurisdiction and sentencing. The second consists of the analysis of the international criminal courts’ approach to the two-element theory of customary international law.
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