Seizing the ‘Grotian Moment’: Accelerated Formation of Customary International Law in Times of Fundamental Change

32 Pages Posted: 12 Apr 2010 Last revised: 14 Mar 2016

Michael P. Scharf

Case Western Reserve University School of Law

Date Written: April 12, 2010

Abstract

Growing out of the author’s experience as Special Assistant to the International Prosecutor of the Cambodia Genocide Tribunal in 2008, this article examines the concept of “Grotian moment,” a term the author uses to denote a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. The article makes the case that the paradigm-shifting nature of the Nuremberg precedent, and the universal and unqualified endorsement of the Nuremberg Principles by the U.N. General Assembly in 1946, resulted in accelerated formation of customary international law, including the mode of international criminal responsibility now known as Joint Criminal Enterprise (JCE) liability. As such, the Cambodian Genocide Tribunal may properly apply JCE to crimes that occurred in 1975-1979, twenty years before the modern international tribunals recognized JCE as customary international law. The article uses this example to demonstrate the value of the “Grotian Moment” concept to explain an acceleration of the customary law-formation process and the heightened significance of certain General Assembly resolutions during times of fundamental change.

Keywords: Customary International Law, Joint Criminal Enterprise, General Assembly Resolutions, Instant Custom, Grotian Moment, International Constitutional Moment, Nuremberg, Extraordinary Chambers in the Courts of Cambodia

JEL Classification: K33, K42

Suggested Citation

Scharf, Michael P., Seizing the ‘Grotian Moment’: Accelerated Formation of Customary International Law in Times of Fundamental Change (April 12, 2010). Cornell International Law Journal, Vol. 43, p. 439, 2010; Case Legal Studies Research Paper No. 2010-19. Available at SSRN: https://ssrn.com/abstract=1588283

Michael P. Scharf (Contact Author)

Case Western Reserve University School of Law ( email )

Case Western Reserve University, School of Law
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3299 (Phone)
216-368-2086 (Fax)

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