Judicial practice in international criminal law : law-making in disguise ?
Law-making and legitimacy in international humanitarian law
Cheltenham ; Northampton : E. Elgar, 2021
This chapter discusses the role of the decisions of international criminal tribunals when determining customary international law. The analysis of the jurisprudence of modern international criminal tribunals shows no common, unified approach to the identification of customary law. The delimitation between a mere application and interpretation of existing legal principles on the one hand and the creation of new law on the other is difficult when judges refer to modern and progressive approaches to customary law. They are criticized for their selectivity and for making generalizations on the basis of a handful of cases. To assess whether such criticism is just or exaggerated, it is indispensable to understand the confusion that surrounds custom as a source of law. The chapter argues that a more conscious approach of using and establishing custom would ensure that judgments are based on well-founded reasoning and would enhance the perceived legitimacy of international criminal justice.
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