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Contents
2.1Introduction.......................................................................................................................... 5
2.2Custom................................................................................................................................. 6
2.3General Principles of Law Common to All Civilized Nations............................................. 8
2.4Judicial Decisions................................................................................................................ 9
2.5Writings of Publicists........................................................................................................... 10
2.6Treaties or International Conventions.................................................................................. 10
2.7Conclusion........................................................................................................................... 11
2.8Summary.............................................................................................................................. 12
References................................................................................................................................... 13
2.1Introduction
1Article 38(1) of the Statute of the International Court of Justice is widely recognized as the
most authoritative statement as to the sources of international law. It provides as follows: the
Court, whose function is to decide in accordance with international law such disputes as are sub-
mitted to it, shall apply: (a) international conventions, whether general or particular, establishing
2.2Custom
Footnote 1 (continued)
rules expressly recognized by the contesting parties; (b) international custom, as evidence
of a general practice accepted as law; (c) the general principles of law recognized by civilized
nations; (d) subject to the provision of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law. Shaw 1997, p. 55; Brownlie 1990, p. 3.
2 Bledsoe and Boczek 1987, p. 28; Shaw 1997, pp. 5772.
3McGinnis 2006, p. 2.
2.2Custom 7
One major issue about custom as a source of international law that needs to be
addressed here is its status and application in the contemporary field of interna-
tional criminal law, where the concept of universal jurisdiction has its most visible
and effective application. In this regard, it is noteworthy that the rules of interna-
tional criminal law, as embodied in the Statute of the International Criminal Court
(ICC), now represent a synthesis of customary international law and a partial codi-
fication by treaty. In effect, there is now a significant degree of consolidation of
customary law and treaty law in international criminal law.4 This fact notwith-
standing, it remains true that in the absence of a global legislative body, customary
law continues to play a crucial role in international criminal law.5 In its orthodox
sense, customary international law exists if actual practice can not only be found,
but tied to a sense of legal obligation. By contrast, an unorthodox perspective is
that customary international law has been profoundly apolitical, in the sense that
its rules have been carefully tailored to suit sovereign states irrespective of
whether sovereignty inheres in a monarch or a military dictator or a popularly
elected President.6
Jurisprudentially, however, there are some authoritative modern classic appli-
cations of the concept in international criminal law, which can justifiably be
characterized as progressive developments in the law. Two such applications
derive from decisions of the United Nations-backed Special Court for Sierra
Leone that provide authoritative judicial endorsement of the status of interna-
tional customary law as a source of international law. The first is that it is well
established under customary international law that crimes against humanity, vio-
lations of Common Article 3 and Additional Protocol II of the Geneva
Conventions, and serious violations of international humanitarian law do entail
individual criminal responsibility, even if treaty law does not specifically deline-
ate them as crimes; consequently, there is no violation of the principle of legality
in such matters.7 The second is that it is settled law within the jurisdiction of the
Special Court that child recruitment was criminalized before it was explicitly set
out as a criminal prohibition in treaty law; by November 1996, the starting point
of the time frame relevant to the indictments, the principle of legality, and the
principle of specificity were being upheld.8
Cassese reasons that such general principles of law include, for example, the
principle of non-retroactivity of criminal law and the principle of command
responsibility (germane to national law systems), since international criminal law
is a branch of public international law, whose sources of law are derivable from
the rules proper to international law.14 Akin to this reasoning is that the concept of
suggestive of natural law (reason) and refute the arguments of the extreme positivists in favour of
the moderate positivists and the eclectics (Grotius). They also resemble the Roman jus gentium
(law common to all nations). See also Werle 2009, p. 53 for the view that not every law found in
several or all legal systems is automatically a general principle of law and therefore a component
of the international legal order.
13 Prosecutor v. Furundzija, ICTY (Trial Chamber), judgment of 10 December 1998, para 178.
14Cassese 2008, pp. 1415.
2.3 General Principles of Law Common to All Civilized Nations 9
2.4Judicial Decisions
judicial decisions of international courts may influence international law under three conditions,
namely: (1) If they exhibit a striking unanimity of approach to the same question; or (2) If a
particular decision has won widespread respect, either for its epic quality (e.g. the Nuremberg
Judgment) or for its statement of a new and subsequently accepted principle (e.g. that of compen-
sating victims of crimes against humanity) as in the Velasquez Rodriguez case; or (3) Because of
the power and persuasiveness of the actual opinion, even if the result is not widely accepted (e.g.
The U.S. Supreme Court Ruling in New York Times v. Sullivan).
10 2 Sources of International Law
International Criminal Tribunal for Yugoslavia (ICTY) emphasized that [in] the
interests of certainty and predictability, the Appeals Chamber should follow its
previous decisions, but should be free to depart from them for cogent reasons in
the interests of justice. Hence, the distinction between primary and secondary
sources of law in the specific context of the international criminal law does not
seem to be of much relevance in any articulation or rationalization of the status of
judicial decisions as a source of law.
2.5Writings of Publicists
According to Article 38 of the Statute of the ICJ, the teachings of the most highly
qualified publicists of the various nations do constitute a subsidiary means for
the determination of the rules of law. Generally, opinions of publicists are
assumed to be on the same footing as judicial decisions as secondary sources of
international law.21
21 See Bledsoe and Boczek 1987, p. 30 where they also observe that, notwithstanding the fact
that the opinions of legal scholars are a subsidiary source of international law yet, (1) historically,
publicists such as Hugo Grotius and Emerich De Vattel created a major influence on the evolu-
tion of international law, and (2) that modern legal scholars have also played an important role
in international courts decisions, as demonstrated by the classic American case of The Paqete
Habana; The Lola, 175 U.S. 677 (1900); see also Shaw 1997, p. 98 for the view that with the rise
of positivism and the consequent emphasis of state, treaties and customs assume the dominant
position in the exposition of the rules of the international system, causing legalistic writings to
decline in importance.
22 See Oppenheim as quoted in Jennings etal. 1992, pp. 512513 for the proposition that not
only is custom the original source of international law, but treaties are the source of the validity
and modalities of which themselves derive from customs.
2.6 Treaties or International Conventions 11
pacts, and statutes.23 The existing state of the law may be summed up thus: if the
treaty is between two parties, it is a bilateral treaty binding only upon the signato-
ries and is an example of particular international law. If the agreement is among a
large number of states, it is a multilateral treatya law-making treatythat
might produce a general international legal norm.24
In the specific context of international criminal law, the status of treaties or
international conventions as sources of law, though pre-eminent, does present
some complexities. One such complexity is that under the adjudicatory framework
of the International Criminal Court (ICC), Article 21 of the Courts Statute reflects
three levels of rationalization. The first is the distinction between mandatory and
discretionary application. The second level is the creation of a trifurcated hierar-
chical normative order of priority as to the sources of law. The third is the formu-
lation of a general rule for interpretation and application. According to the Statute,
the primary source of law is the Statute itself, whereas the elements of crimes and
the rules of procedure and evidence are supplementary sources.25
Another complexity arises from recognizing that international criminal law is a
branch of public international law. Based on this reasoning, it may be argued that
the sources of law from which the relevant rules may be derived are those germane
to international law and applied in the stipulated hierarchical normative order.26 In
this regard, Cassese notes that going back to the Nuremberg International Military
Tribunal (IMT), the main relevant source is the London Agreement of 8 August
1945, which embodies both substantive and procedural law, followed by the 1998
Rome Statute of the ICC, and the Statute of the Special Court for Sierra Leone
(SCSL) embodied in the Annex to the Agreement between the United Nations and
the Government of Sierra Leone of 16 January 2002. The same is true of the stat-
utes of the International Criminal Tribunal for Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR), which were adopted by
United Nations Security Council Resolutions and passed in 1993 and 1994,
respectively.
2.7Conclusion
2.8Summary
References
Bledsoe RL, Boczek B (1987) The international law dictionary. Clio Press Ltd., Oxford
Brownlie I (1990) Principles of public international law, 4th edn. Oxford University Press,
Oxford
Cassese A (2008) International criminal law, 2nd edn. Oxford University Press, Oxford
Jennings RY etal (eds) (1992) Oppenheims international law, vol 1. Longman, London
McGinnis JO (2006) The comparative disadvantage of customary international law. Harvard J
Law Publ Policy 30:16
Robertson G (2002) Crimes against humanity, the struggle for global justice (Rev. Edn.). The
New Press, New York
Shaw MN (1997) International law, 4th edn. Cambridge University Press, Cambridge
Werle G (2009) Principles of international criminal law, 2nd edn. T.M.C. Asser Press, The Hague
http://www.springer.com/978-94-6265-053-4