The Identification of Customary Rules in International Criminal Law

Tan, Y., 2018. The Identification of Customary Rules in International Criminal Law. Utrecht Journal of International and European Law, 34(2), pp.92–110. DOI: 10.5334/ujiel.434

European Society of International Law (ESIL) 2016 Research Forum (Istanbul)

19 Pages Posted: 6 Feb 2017 Last revised: 25 Nov 2018

See all articles by Yudan Tan

Yudan Tan

Leiden University, Grotius Centre for International Legal Studies, Students

Date Written: January 31, 2017

Abstract

This paper aims to examine whether a different methodology has emerged to identify customary rules in the field of international criminal law. It briefly touches upon debates regarding customary international law as a source of international criminal law. In order to seek whether a different theory in academia has been reached, it critically studies the classic two-element (State practice and opinio juris) identification methodology of customary law, its modifications and one-element approaches. It then explores the unique characteristics and difficulties in identifying customary rules of international criminal law. Finally, it recapitulates the jurisprudence of international criminal tribunals to ascertain whether these tribunals have formed a consistent method for custom identification.

It concludes that a different method has not been reached in academia or adopted by judges in practice to identify customary rules of international criminal law. The two-element approach still serves as guidance for general identification, but it should not be too rigid in specific criminal cases. International practitioners, particularly judges, should be cautious in the identification of customary rules of international criminal law, so as to prosecute and punish suspects of international crimes without endangering the principle of legality.

Keywords: State practice, opinio juris, custom, identification, international criminal law

Suggested Citation

Tan, Yudan, The Identification of Customary Rules in International Criminal Law (January 31, 2017). Tan, Y., 2018. The Identification of Customary Rules in International Criminal Law. Utrecht Journal of International and European Law, 34(2), pp.92–110. DOI: 10.5334/ujiel.434, European Society of International Law (ESIL) 2016 Research Forum (Istanbul), Available at SSRN: https://ssrn.com/abstract=2911991 or http://dx.doi.org/10.2139/ssrn.2911991

Yudan Tan (Contact Author)

Leiden University, Grotius Centre for International Legal Studies, Students ( email )

P.O. Box 9520
Leiden
Netherlands

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