THE ROLE OF CUSTOMARY INTERNATIONAL LAW IN THE PRACTICE OF INTERNATIONAL CRIMINAL COURTS
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 3, Issue
Abstract
This article analyzes the role of customary norms in the practice of international criminal courts. The main focus is on two aspects of the impact of international criminal j courts in the formation of customary norms and practices using international customary law in the execute justice. It addresses applicable law and the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR), and the International Criminal Court (ICC). More specifically, this article provides answers as to the role customary law plays as a source of applicable law in these courts and further, the role these courts play in developing the content of customary law. International criminal courts serve as important entities in discovering and interpreting existing rules of customary international law. Although these courts’ primary function is to apply existing law, not to create it, their case law forms an essential part of the formation process of customary international law. But uniting the legislative and judicial processes together diminishes the legitimacy of the resulting rules. The problem comes to the fore when international criminal courts broaden the scope of individual criminal liability by expanding the definitions of international crimes. The principle of legality –inherent to criminal law– prohibits retroactive crime creation and punishment and thus seems to prohibit courts from interpreting law expansively. However, throughout the history of international criminal law international criminal courts have been remarkably productive in their interpretations. In conclusion, the author argues that the application of customary international law by the international criminal justice has a number of specific features. First, almost all of the practice in ascertaining the existence of practices performed ICTY. Other courts only limited reference to his practice. Another feature is that unlike all other practices of the judiciary, international criminal law, although they used two-component concept of customary norms, but the leading role belongs opinio juris. In addition, unlike the Tribunals, the ICC takes away much less important customary rules applicable after the inability to use the Charter and other documents.
Authors and Affiliations
А. І. Андрейків
Keywords
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