Judicial lawmaking, discourse theory, and the ICTY on belligerent reprisals
by Milan Kuhli and Klaus Günther
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German law journal, Vol. 12, no. 5, 2011, p. 1261-1278
Without presenting a full definition, it can be said that the notion of judicial lawmaking implies the idea that courts create normative expectations beyond the individual case. A judiciary might engage in lawmaking without formally presenting arguments of a justificatory sort; a court could, for example, simply announce a new norm. But where a court does engage in norm justification, it is always engaging in or at least shading into lawmaking. Norm identification, by contrast, although it has a creative element, is not essentially creative. The article is divided into four main parts. Part B highlights the history of the establishment of the ICTY and the content of the ICTY Statute. This background will prove indispensable in comprehending the ICTY’s lawmaking character. Part C probes the theoretical background of the norm justification/identification distinction. Part D provides a case study of the ICTY engaging in a discourse of norm justification: The case against Zoran, Mirjan, and Vlatko Kupreškic from 14 January 2000, concerning the issue of belligerent reprisals. We will show that in this case, the ICTY did not identify particular norms of international customary law, but rather determined the validity of those norms—a justificatory form of discourse. Part E takes up the question of the legitimacy of judicial lawmaking.
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