Introduction

Chapter One Customary International Law, Theoretical Conceptions and Evidence of its Formation

Ⅰ. Introduction

Ⅱ. Customary international law

A. Custom as a source of international law

1. Custom

2. Sources of international law

3. Formal and material sources of international law and further distinctions

B. Assessment

Ⅲ. Introduction to the theory of customary international law

Ⅳ. Scope of the theoretical assessment

Ⅴ. Theory of the formation of customary international law

A. Positivism

1. Voluntarist conceptions

2. Other opinio juris-based approaches to customary international law

3. Ago's theory of spontaneous law

4. Practice-based approaches

5. Strict normativism: Hans Kelsen's pure theory of international law and neo-Kelsenian approaches

6. Assessment

7. Later approaches: Haggenmacher, Mendelson and others

8. Commentary on the late positivist approaches

9. Other practice-based conceptions

B. Two-element approaches

C. Two-element conceptions of the formation of customary international criminal law and customary international human rights law

1. Different sorts of customary international law

2. The deductive approach to custom-formation

3. The 'core rights' approach

4. Two-element approaches to customary international human rights and humanitarian law: assessment

D. Naturalist conceptions

1. Moral theoretical approaches to the formation of customary international law

2. Assessment

E. Realist Conceptions

1. New Haven and similar approaches

2. The customary international law game

3. Assessment of the New Haven and the game theory concepts of custom

F. New Approaches to International Law

1. The Sliding-Scale Approach

2. Ascending and descending conceptions of international criminal law

3. Evaluation of the sliding-scale approach and subsequent up and down arguments

4. Institutionalised law-making: Charney's 'universal international law' and subsequent ideas

5. Assessment of institutionalised law-making approaches

6. Critical Legal Studies perceptions of the formation of customary norms

7. Assessment of the CLS conception of customary international law

G. Theory of customary international law: tentative conclusions

H. Evidence

Chapter Two Customary International Law and its Relationship with other Sources and Methods of Law-Identification

Ⅰ. Introduction

Ⅱ. The relationship of customary international law with other sources of international law: general principles of international law and customary international law

Ⅲ. General principles of law in accordance with Article 38 (c) and other general principles

A. Preliminary considerations

B. General principles of national or international origin

1. General principles of national origin

2. General principles of a genuine international origin

3. A third category?

4. General principles of international law originating from any source of international law

5. Preliminary Conclusion

C. General principles of law as a source of international human rights and international criminal law

1. Simma's and Alston's approach to international human rights law

2. Kolb, Henkin and Yasuaki

3. Simma's and Paulus' approach to international criminal law

4. Discussion of a general principles approach to international human rights and international criminal law

D. Concluding remarks on the relationship of custom and the general principles of law

Ⅳ. Interpretative methods and their relationship with the finding of customary international law

A. Interpretation

1. The notion of interpretation

2. Underlying concepts

B. Particular methods: Articles 31-33 VCT

1. Article 31 (1) and (2) VCT

2. Article 31 (3) (c) VCT

3. Article 31 (3) (c) and the Oil Platforms Case

4. Further interpretative rules of the VCT

5. Subsidiary means of interpretation

C. Interpretation of treaties by the ICJ, the ICTY and the ICTR

1. Grammatical interpretation, supporting elements and systemic interpretation

2. Object and purpose, effectiveness and other circumstances

3. Customary international law

4. Assessment

D. Analogy

1. Introduction

2. Notion and theoretical underpinnings

3. Analogy in the jurisprudence of ICJ and ICTY

4. Final considerations on the relationship between analogy and custom

E. Final assessment of the relationship between interpretation and analogy and the discovery of new customary international law

Chapter Three Visions of Development

Ⅰ. Introduction

Ⅱ. Theoretical conceptions of the development of customary international (criminal) law

A. The humanisation of humanitarian law

B. A communitarian vision

C. Increasing fragmentation

Ⅲ. Assessment

Chapter Four Practical Developments (Part One): Customary International Law in the Case Law of the PCIJ and the ICJ

Ⅰ. Introduction

Ⅱ. Strict Voluntarism

A. The PICJ's Lotus Case

B. Discussion of the Lotus findings in the light of the formation of customary international law

Ⅲ. Two-element approaches to custom: The customary law on the continental shelf and further cases

A. The Asylum Case, the Fisheries Case and further judgements

B. The North Sea Continental Shelf Cases

C. Discussion of the impact of the North Sea Continental Shelf findings on the methodology of customary international law

D. Continental Shelf Case I (Tunisia v Libya)

E. Continental Shelf Case II (Libya v Malta)

F. The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons

G. The importance of the conclusions of the Nuclear Weapons advisory opinion for the formation of customary international law

Ⅳ. Deductive reasoning

A. The Corfu Channel Case

B. The Advisory Opinion on the Reservations on the United Nations Convention on the Prevention and Prohibition of the Crime of Genocide

C. Relevance of the findings in the Advisory Opinion on the Genocide Convention and further developments: the Barcelona Traction Case and the Genocide Case (Bosnia Herzegovina v. Serbia Montenegro)

Ⅴ. A first drawback for the deductive approach: the South-West Africa Cases

Ⅵ. Deduction affirmed? The Gulf of Maine Case

Ⅶ. Deductive and empirical approaches side by side: the Nicaragua Case

A. The Court's findings

B. Further assessment of the Nicaragua Judgment

Ⅷ. Resumption of the deductive method: The Yerodia Case

A. The ICJ's findings

B. Assessment of the Yerodia judgment

C. Compararison: the discussions at the Institut de Droit International on the immunities from execution and jurisdiction of Heads of State and Government in international law

Ⅸ. The importance of 'elementary considerations of humanity': the Advisory Opinion on the Construction of a Wall in the Palestinian Territories and further cases

A. Advisory Opinion on the Construction of a Wall in the Palestinian Territories

B. The 2002 Congo Case and the Srebrenica judgement

Ⅹ. Conclusions on the analysis of the case law of the ICJ

A. The evidence assessed

B. The methods applied

Chapter Five Practical Developments (Part Two): The Case Law of the International Ad Hoc Criminal Tribunals on Customary International Criminal Law

Ⅰ. Introduction

Ⅱ. Preliminary considerations: the definition of international criminal law

Ⅲ. The different approaches of the ICTY and the ICTR to customary international law

A. Differences in the scope of ratione materiae jurisdiction

B. The applicability of the Geneva Conventions of 1949 and its Additional Protocols to the conflict in Rwanda and the former Yugoslavia

C. The succession situation in the SFRY and the applicable treaty law

D. The existence of an international or non-international armed conflict on the territory of Yugoslavia

Ⅳ. The case law of the ICTY and the ICTR on customary international law

Ⅴ. The findings of the ICTY on the evolution of new customary international criminal law

A. The 'sources based approach': international legal instruments and international jurisprudence as evidence of new customary international law

1. Nuremberg Jurisprudence and the military trials following World War II

2. Risks ensuing from utilizing the Nuremberg jurisprudence and similar case law as evidence of new customary law

3. Other international and domestic case law on matters of international humanitarian law

4. International humanitarian law instruments

5. International human rights instruments

6. The ILC Draft Code of Crimes

7. The influence of the Rome Statute

8. The ICRC Study on Customary International Humanitarian Law and ICRC opinions

B. Deductive approach / core-rights approach

1. Prerequisites for the application of Articles 2 and 3 ICTY Statute/Article 4 ICTR Statute: The Tadic case

2. Conclusions on the Tadic Interlocutory Appeal

3. Affirmation of the findings of the Tadic Interlocutory Appeal judgment: the Martic Case, the Celebici Case and subsequent judgments

4. The 'customs of war' in Article 3 ICTY Statute / Article 4 ICTR Statute: the Kupreskic Trial Chamber judgment and subsequent decisions

5. Assessment of the findings of the Kupreskic Trial Chamber

6. The prohibition on destroying civilian property

7. Murder

8. Outrages upon personal dignity

9. Terrorisation of a civilian population: the Galic appeal judgment

10. Assessment

11. Rape

12. The Hadzihasanovic Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility and subsequent case law

13. Drawbacks to the deductive approach: the Ojdanic Interlocutory Appeal on Joint Criminal Enterprise Liability and further judgments

C. Mixed methodologies

1. Blurring of different sources of international law (general principles of international law and customary international law)

2. The need for a differentiation between methodologies: the case law of the ICTY on the customary criminality of co-perpetratorship

3. Blurring of customary international law and interpretation

4. No differentiation between customary international law and analogy

Ⅵ. The case law of the ICTR

A. International legal instruments approach

1. Crimes against humanity and the fair trial principle

2. Widespread and systematic attack

B. Blurring of interpretation and custom

1. Discriminatory intent requirement

2. Murder

3. Rape

4. Complicity in genocide

5. Command responsibility

C. Common sense approach

1. Extermination

2. Other inhumane acts

D. Deductive approach

1. The customary international law character of the prohibition of genocide, acts of complicity and public incitement to genocide

2. Individual criminal responsibility

3. Joint criminal enterprise liability

Ⅶ. Conclusions on the jurisprudence of the ICTY and the ICTR on customary international law

A. Determining agencies

1. The Nuremberg trials, the case law of the ICJ, and the case law of the ICTY and ICTR

2. The case law of the military tribunals established after World War II and national case law concerning international crimes

3. The ILC Draft Code of Crimes

4. International treaties and UNGA resolutions

5. Military manuals

6. ICRC opinions

7. Assessment

B. A hierarchy of determining agencies for customary international criminal law?

C. The methodologies applied when identifying new customary international law

1. Different approaches to custom

2. Relationship between the four approaches

D. Merging of different methods and sources of international (criminal) law

Ⅷ. The approaches of the ICTY and the ICTR compared

Chapter Six Evolution of New Customary International Criminal Law: Further Implications

Ⅰ. Introduction

Ⅱ. Article 21 (1) (b) of the ICC Statute: further development of customary international criminal law?

A. Preliminary issues

B. Article 21 (1) (b) ICC Statute: controversies

C. Travaux preparatories

D. Conclusion

Ⅲ. Clash of custom with aspects of legality? - The nullum crimen sine lege principle and its implications for the formation of new customary international criminal law

A. The principle nullum crimen sine lege in national and international law: overview

B. Scope of the principle in international law

1. International human rights instruments: Article 11 UDHR

2. Article 7 (1) ECHR and Article 15 (1) ICCPR

3. Article 7 (2) ECHR and Article 15 (2) ICCPR

4. Other provisions

5. The ILC Draft Code against Peace and Security of Mankind and the interpretation of nullum crimen sine lege in international legal scholarship

C. The nullum crimen sine lege principle in the case law of the international ad hoc criminal tribunals

1. Nullum crimen as a principle of justice: the Tadic Interlocutory Appeal

2. Individual requirements of the principle of legality: the Celebici Trial Chamber judgement

3. Assessment

4. The Hadzihasanovic Interlocutory Appeal decision

5. No creation of new law: the Aleksovski Appeals Chamber judgment

6. Limitations on the methodology of customary international criminal law: The Vasiljevic Trial Chamber judgment and the Ojdanic Appeals Chamber decision

7. Custom, interpretation and the nullum crimen principle: the Stakic Trial Chamber judgment

8. ICTR Cases

D. Conclusions on the interpretation of the nullum crimen principle by the ICTY and ICTR

E. Further development of nullum crimen sine lege Article 22 of the ICC Statute

1. The prohibition of retroactivity

2. The rule of strict construction and prohibition of interpretation in malam partem

3. The prohibition of analogy

4. Article 22 (3) ICC Statute

F. Conclusion on the nullum crimen principle in Article 22 ICC Statute

Ⅳ. Overall conclusion on the impact of the nullum crimen sine lege principle on the finding of new customary international law

Chapter Seven Developments in Customary International (Criminal) Law: Implications from the Case Law of the ICJ, the ICTY and the ICTR

Ⅰ. Introduction

Ⅱ. The conclusions from the case law of the ICJ, the ICTY and the ICTR

A. Lessons from the ICJ's case law

1. Concerning the evidence of new customary international law

2. The different methods of determining new customary international law

B. Lessons from the case law of the ICTY and the ICTR

1. Considering the relevant evidence of a new customary rule

2. Considering the methodologies applied

C. Implications for the theory of international law

D. Conclusions

Ⅲ. An evaluation scheme for the determination of new customary international (criminal) law

A. Introduction

B. Evaluation scheme for discovering new customary international (criminal) law

1. Preliminary considerations - the importance of interpretation

2. The classical two element approach to customary international law

3. Application of the international legal instruments approach

4. The core rights approach

5. Analogy

6. General principles of law

C. Conclusion

Bibliography

Index