Finding custom : the ICJ and the international criminal courts and tribunals compared
The diversification and fragmentation of international criminal law
Leiden ; Boston : M. Nijhoff, 2012
International criminal tribunals have had frequent recourse to customary international law. Given the flexible nature of this source of law, this recourse might be the one of the main causes of internal fragmentation of substantive international criminal law. The use of customary international criminal law by international criminal courts has been criticized, in particular by continental criminal lawyers who are unfamiliar with the application of unwritten law in criminal proceedings. This chapter will analyse the use of customary international law by international criminal tribunals through a different lens. It will examine whether the method that international criminal courts and tribunals use to determine the existence of a rule of customary international law constitutes an instance of fragmentation in itself. More specifically, this chapter investigates whether and to what extent international criminal courts and tribunals depart from the conventional methodology of identifying custom in the realm of public international law.
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