An Autonomous Regime of Identification of Customary International Humanitarian Law: Do Not Say What You Do or Do Not Do What You Say?
R. van Steenberghe (ed.), Droit international humanitaire: un régime spécial de droit international? (Bruylant, 2013)
26 Pages Posted: 11 Mar 2013
Date Written: March 8, 2013
This chapter discusses the methodology of establishment of customary humanitarian law in the practice of the international criminal tribunal and the International Committee of the Red Cross (ICRC). After shedding some light in the difficulties inherent in the ascertainment of customary humanitarian law, the chapter discusses the extent to which practice shows an emancipation by these bodies from the general rule of recognition pertaining to the establishment of customary law. Although concluding that it is too early to speak about an autonomization of the rule of recognition regarding the establishment of customary humanitarian law (and hence a fragmentation of the theory of customary international law), this chapter submits that some emancipatory moves can be clearly observed in practice of criminal tribunals and the ICRC. This chapter ends with a few critical remarks on the narratives used by these bodies and their inclination to obfuscate their emancipatory moves behind discourses vindicating the monopoly of the general rule of recognition and the kinship between international humanitarian law and general public international law.
This chapter was originated in a presentation made by this author at an expert workshop on the idea of international humanitarian law as a autonomous regime of international law featuring interventions, among others, by Georges Abi-Saab, Andrew Clapham, Marco Sassòli, Bruno Simma, Jean-Marie Henckaerts, Yves Sandoz, William Schabas, Louise Doswald-Beck, Laurence Boisson de Chazournes, Michael Bothe, Raphaël van Steenberghe, Pierre d’Argent, Vaios Koutroulis, Damien Scalia, Yasmin Naqvi, Jorge E. Viñuales.
Note: Downloadable document is in French.
Keywords: International Humanitarian Law, International Criminal Law, Theory of Sources, Customary International Law, Autonomy of Humanitarian Law, Rule of Recognition, Fragmentation, International Criminal Tribunals, ICRC, Red Cross, ICTY, Authority, Legitimacy, Transparency
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