The Concept of ‘Essence’ and Its Uses in the Identification and Application of Customary International Law by International Criminal Courts and Tribunals

Abstract

Abstract This paper seeks to provide an analysis of the uses of the concept of ‘essence’ by international criminal courts and tribunals. In particular, it is based on a survey of decisions of the International Criminal Tribunal for the former Yugoslavia (icty), whose Trial and Appeals chambers have used the concept on multiple occasions and with consequences which have been overlooked in the literature. By providing an analysis of the concept’s uses in connection with the icty’s identification and application of customary international law, the paper addresses some of the general international law and philosophical issues raised by the concept’s uses. The paper places the concept’s uses within their respective contexts, and discusses related international decisions and academic commentary. The paper concludes by suggesting potential avenues for elucidating the concept of ‘essence’ and its proper use, with a particular focus on the notions of ‘intension’, ‘extension’ and an intensional ‘extensional property’.