In this circumstance, these national prosecutions are valuable evidence for identifying the existence of international crimes in customary law. National cases are sometimes hard evidence from which a customary rule is to be ascertained. During the assessment of evidence of the two elements, tribunals should carefully bear in mind these peculiarities and the principle of legality, specifically the prohibition of retroactive application of the law. Customary IHL is of crucial importance in today’s armed conflicts because it fills gaps left by treaty law and so strengthens the protection offered to victims.Read more. [2] See, e.g., Prosecutor v. Furundžija, No. To sum up, international criminal tribunals, in general, employ the two-element approach in a ‘loose’ or ‘flexible’ way to uphold or reject arguments regarding customary law. Copyright © 2020 Bscholarly LLC | All Rights Reserved. 76Schlütter (n 56); Noora Arajärvi, The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals (Routledge 2014). Hoc/2002/ph.JKT.PST (14 August 2002) 70. Apart from Judge Tomka’s ‘best and most expedient evidence’ explanation, the unique features of international criminal law and the difficulties in its customary identification are also persuasive explanations for flexibility in the application of the two-element method. The author’s gratitude also goes out to China Scholarship Council and ESIL for their financial support. However, it also considers that, where a principle can be shown to have been so established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle. 140North Sea Continental Shelf cases (n 124), 43–44 paras 74, 77. In two contexts, individuals would be bound by customary law rather than the Statute.49 Firstly, Article 12(3) of the Statute permits non-States Parties’ retroactive acceptance of the ICC’s jurisdiction by lodging a declaration with the Registrar. Fact: On 2 August 1926, a collision occurred on the high seas between the French mail steamer Lotus proceeding to Constantinople, and the Turkish collier, ―Boz – Kourt‖. There have been cases where the court ruled that where a custom is not accepted it cannot be said to be a customary law. Some commentators have also noted that ‘customary international law in the context of international criminal law means something different from customary international law in the context of traditional international law’. Nevertheless, the fact that frequent violations exist and States have had few successful instances in practice does not impede the formation of a customary rule.145 The prohibition of torture, for example, is recognised under customary law despite the frequent practice of torture around the world.146 Some substantive rules of international criminal law derive their origins from international humanitarian law and international human rights law.147 These two regimes introduce prohibitions such as the prohibition of torture and the abolition of death penalty. Asser Press 2006) 205; Hadžihasanović & Kubura Trial Judgment (n 102) para 257. 184Orić Appeal Judgement (n 117), Separate and Partially Dissenting Opinion of Judge Schomburg para 20; Hadžihasanović et al. In Čelebići, the ICTY Trial Chamber contemplated the issue of command responsibility under Article 7(3) of the ICTY Statute.117 The Chamber concluded that command responsibility, as a mode of liability for unlawful conducts of subordinates, is a well-established principle of customary international law.118 The Trial Chamber searched for evidence of Report of the 1919 Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, national legislation, post-World War II cases at military tribunals, Additional Protocol I to the 1949 Geneva Conventions and its preparatory works, and domestic military manuals. This paper aims to examine the method for ascertainment of customary rules in the field of international criminal law. case, the ICTY Appeals Chamber examined the issue of a superior’s responsibility before and after his assumption of command.90 The majority of the Appeals Chamber referred to Article 28 of the Rome Statute and Article 86 of 1977 Additional Protocol I to the 1949 Geneva Conventions as indications of opinio juris on this issue. Judge Schomburg of the ICTY also criticised the reference to Article 28 of the Rome Statute concerning command responsibility, as this treaty was a delicate compromise resulting from arduous negotiations.185 The definition of genocide is another excellent example to illustrate this idea. Save my name, email, and website in this browser for the next time I comment. 194Schlütter (n 56); Cassese (n 83)188–89. The international tribunals have even established a customary rule by merely relying on few exceptional interpretations. […] while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction, in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom. The Commission members welcomed this approach, and in 2018 the ILC adopted a set of 16 draft conclusions on ‘Identification of Customary International Law’.62 Its conclusion 2 under the title of ‘two constituent elements’ clearly reads that ‘[t]o determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law (opinio juris)’.63, It should be noted that the two-element approach remains the object of controversies among scholars supporting it.64 This is in part because no consensus exists among international scholars as to what opinio juris consists of. 143. However, not all prohibitory norms entail individual criminal responsibility, for instance, not all violations of a rule of international humanitarian law constitute a war crime. 42. (Report of the Secretary-General, at para. The CLD is a living tool and its content is being regularly updated. The prohibition of torture and outrages upon personal dignity, in particular humiliating and degrading treatment, is recognized as a fundamental guarantee for civilians and persons. The Appeals Chamber of the Special Tribunal for Lebanon (STL)164 clarified that there is an emerging definition of terrorism as an international crime under customary law.165 According to the Chamber, the elements of the crime of terrorism in the Lebanese Criminal Code are distinct from those under customary law. As the Eritrea-Ethiopia Claims Commission noted, a party wishing to challenge the customary nature of a provision would bear the burden of proof. The Case Law Database (“CLD”) is a gateway to the jurisprudence of the ICTR, ICTY, and IRMCT Appeals Chambers. Schabas (n 33) 543; Bitti (n 33). paras 42–148; Lebanese Criminal Code, art 314. 58American Law Institute, ‘Restatment of Foreign Relations Law of the United States’ (Third, 1986), 102, Comment b. It is also contended, that the diversity of customs in Nigeria, is the major obstacle to the uniformity of customary law system in Nigeria. Utrecht Journal of International and European Law, vol. See also Prosecutor v Aleksovski (Judgement) ICTY-95-14/1-T (25 June 1999) para 67; Hadžihasanović et al. This paper aims to examine whether a different methodology has emerged to identify customary rules in the field of international criminal law. 112James Crawford, ‘The Identification and Development of Customary International Law’ (Speech delivered at Spring Conference of the ILA British Branch, London, 23 May 2014) accessed 26 March 2018. 139UN Doc A/CN.4/663, 27–37; The Case of the SS ‘Lotus’ (France v Turkey) PCIJ Rep Series A No 10, 28 (Lotus case); Continental Shelf (Libyan Arab Jarnahiriya/Malta) (Judgment) [1985] ICJ Rep 13, 20 para 27 (Libya/Malta case); Roberts (n 73) 758; Schlütter (n 56) 277; Charles Quince, The Persistent Objector and Customary International Law (Outskirts 2010) 31. [1] […], 44. This thus, results in the paucity of States’ physical acts. This paper consists of six sections including this introduction and conclusion. The ILC commented that ‘there exists a category of war crimes in customary international law’. This paper examined the methods used to identify customary rules in international criminal law and discussed the peculiarities in the process of ascertainment. (And Why We Should Care)’ (2011) 9 Journal of International Criminal Justice 25, 51–52; Marko Milanović, ‘Aggression and Legality: Custom in Kampala’ (2012) 10 Journal of International Criminal Justice 165. 89ibid; Prosecutor v Kuprešić (Judgement) ICTY-95-16-T (14 January 2000) para 527. These tribunals, however, have avoided coherently categorising materials as evidence of State practice or opinio juris. The author has no competing interests to declare. [3] See Tadić Appeal Judgement, para. opinio juris of those States’.124. They do not deny that practice is not necessary for the formation of customary law but evidence of opinio juris is given more weight in specific cases. As for whether the existence of a treaty is evidence of customary international law, it has been classified as either opinio juris or State practice. In addition, the Chamber even considered the jurisprudence of the ICTR as evidence of State practice. Utrecht Journal of International and European Law, 34(2), 92–110. The two-element approach still serves as guidance for custom-identification in general, but a flexible application of it is acceptable in specific cases. The author would like to thank all conference participants and reviewers for their detailed comments. These tribunals give more attention to verbal statements of States and evidence of opinio juris than the States’ physical acts. In clarifying a status requirement for victims of the war crime of rape and sexual slavery, the Trial Chamber in Ntaganda first concluded that the Rome Statute did not provide a status requirement and then turned to consider whether customary law requires such a limitation of status for victims.45 The Prosecutor argued that introducing an additional element by relying on the expression ‘established framework of international law’ in Article 8 of the Statute would allow customary law to be applied even in the absence of a gap in the Statute.46 To ensure consistency of Article 8 with international humanitarian law, the Appeals Chamber of the ICC rejected her argument and concluded that this expression allows the ICC to apply customary international law regardless of whether any lacuna exists.47 In short, as for war crimes, an additional restrictive element in customary law may be applied by the ICC even if no legal gap exists. 145Obligation to Prosecute or Extradite (n 128) 457 paras 99–100. Your email address will not be published. This paper concludes that a different method departing from the two-element approach has not emerged in the identification of customary rules in international criminal law. As Broomhall wrote, ‘[t]he only legitimate basis for establishing the criminal responsibility of individuals [at the ICC] would presumably – in the absence of relevant national criminal prohibitions at the time of the alleged conduct – be that of customary international law’.52 In the two contexts, customary law as a source of law does matter at the ICC. The prohibition of torture, cruel or inhuman treatment and outrages upon personal dignity is contained in numerous military manuals. Although tribunals do not always clarify the attributes of evidence, they give more weight to opinio juris than State practice in some cases. Such practice can be found in official accounts of military operations but is also reflected in a variety of other official documents, including military manuals, national legislation and case law.