War/Crimes and the Limits of the Doctrine of Sources

Abstract

International humanitarian law (IHL) and international criminal law (ICL) are the product of lawmaking processes that are not captured in the black-letter doctrine of sources under which Article 38 of the ICJ Statute is the rule of recognition for international law. Despite efforts by certain institutional players and scholars to place these two regimes squarely within Article 38, both remain distinct in terms of how actors determine whether a purported rule is a legal rule. These distinctions constitute a challenge to the idea of a unified rule of recognition and argue instead for looking for indicators (not rules) about a norm's legal status. More important, IHL and ICL demonstrate not merely the futility, but the hazards, of a unified rule of recognition. For the purpose of a concept of sources is to ground the legitimacy of international law and, consequently, create the conditions for respect for and compliance with it. In that case, we need to treat any doctrine of sources as a tool, and not an end in itself. Such a move requires that we do precisely what traditional doctrine seems to reject – to link the identification of a rule as law not only with the context in which it is formed (including its subject area), but with the context in which the norm is invoked. I conclude with thoughts about the ethical sources of IHL and ICL, a topic neglected in scholarship on sources.

Keywords: international law, international humanitarian law, international criminal law, international legal theory, sources of international law, global justice, international courts