Abstract
This paper aims to examine whether a different methodology has emerged to identify customary rules in the field of international criminal law. It briefly touches upon debates regarding customary international law as a source of international criminal law. In order to seek whether a different theory in academia has been reached, it critically studies the classic two-element (State practice and opinio juris) identification methodology of customary law, its modifications and one-element approaches. It then explores the unique characteristics and difficulties in identifying customary rules of international criminal law. Finally, it recapitulates the jurisprudence of international criminal tribunals to ascertain whether these tribunals have formed a consistent method for custom identification. It concludes that a different method has not been reached in academia or adopted by judges in practice to identify customary rules of international criminal law. The two-element approach still serves as guidance for general identification, but it should not be too rigid in specific criminal cases. International practitioners, particularly judges, should be cautious in the identification of customary rules of international criminal law, so as to prosecute and punish suspects of international crimes without endangering the principle of legality.
Highlights
Customary international law is important for practitioners in international and national courts
It critically studies the identification methodology of customary law to seek whether a new approach deviating from the classic two-element (State practice and opinio juris) approach is emerging in academia
This paper looks into the theories and case law of international and internationalised criminal tribunals to answer the question of whether a distinct methodology has emerged for the identification of customary rules in international criminal law
Summary
Customary international law is important for practitioners in international and national courts. This paper aims to examine the method for ascertainment of customary rules in the field of international criminal law. When we ask the question of how to identify customary law, we refer to a method to ascertain the existence of a customary rule rather than the substance of that rule In other words, the former deals with the process of identifying whether a customary rule has formed; while the latter concerns the content of a customary rule.[4] The classic approach to identifying custom is to seek sufficient evidence of State practice and opinio juris (two-element approach). To ascertain the custom-identification method, Article 38 of the Statute of the International Court of Justice (ICJ) remains a good starting point.[11] Concerning the identification method of customary law, there exists no treaty, customary rule or general principle. The paper concludes that in identifying customary rules in international criminal law, a different methodology that deviates from the two-element approach has not come into existence, whereas a flexible formula of the two-element approach is acceptable
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