Chapter

Judicial "law-making" in the jurisprudence of the ICTY and ICTR in relation to protecting civilians from mass violence : how can judge-made law be brought into coherence with the doctrine of the formal sources of international law ?

Robert Heinsch

The protection of non-combatants during armed conflict and safeguarding the rights of victims in post-conflict society : essays in honour of the life and work of Joakim Dungel

Leiden ; Boston : Brill Nijhoff, [2015]

p. 297-330

English

This chapter examines the value of decisions of international criminal tribunals against the background of the legacy of the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda. Starting from the observation that both tribunals, during their 20 years of existence, have contributed considerably to the extension of the scope of legal protection of victims of mass atrocities, Heinsch looks at how this sometimes progressive jurisprudence can be harmonised with the assumption of article 38(1)(d) of the Statute of the International Court of Justice that decisions of international courts and tribunals can only be seen as subsidiary sources of international law. Discussing the current academic discourse on the normative value of decisions of international criminal courts, Heinsch comes to the conclusion that article 38(1)(d) is not fully reflective of the current reality of the status of sources of international law. The author suggests that the value of decisions of international tribunals should rather be seen as a quasi-formal source of international law, having the capacity not only to crystallize newly-developing customary international law, but also to create new rules of customary international law for the protection of victims of armed conflicts and mass atrocities.

• The protection of non-combatants during armed conflict and safeguarding the rights of victims in post-conflict society : essays in honour of the life and work of Joakim Dungel / ed. by Philipp Ambach... [et al.]