MultiRights Seminar: "And the Tribunal said: This is the law!? Reassessing the law making by the international ad hoc criminal tribunals for the former Yugoslavia and Rwanda"

Dr. Birgit Schlutter will present a work in progress in collaboration with MultiRights.


Custom had a unique role in international criminal law’s early days. Without it at the basis, prosecutions would have often been impossible or at least very difficult; in particular, as the treaty law situation in some of the conflicts– such as in the former Yugoslavia – was often far from clear. Yet, many of the findings of the International Criminal Tribunals for the Former Yugoslavia (ICTY) or the Rwanda (ICTR) rely upon quite unaccustomed customary rules: prior to their establishment, only the Nuremberg proceedings and the persecutions following World War II had produced a body of jurisprudence of some weight on those most heinous atrocities for which an individual can be internationally prosecuted and punished.

When assessing the case law of the ICTY and ICTR on the matter of customary international law William Schabas, but also many others doubted that the custom declared by the ad hoc tribunals could really be called customary and contemplated to call it called judge made law instead.   Schabas, in particular, concluded that there were some serious doubts as to whether the law referred to as custom in international criminal law must not be called something else than customary international law.  This chapter reassesses his central claim, i.e. that the ad hoc tribunals were mostly engaged in judicial law making in the area of customary international criminal law.

The chapter will first address the more general phenomenon of law making by the international judiciary. It will then set out some criteria which may be used to check whether the ad hoc tribunals were engaged in “illegitimate” findings on new customary international criminal rules. Thereafter, the chapter will reassess the claim whether or not the international ad hoc criminal tribunals for the former Yugoslavia and Rwanda paid attention to the above mentioned differentiations or whether they ventured into the area of “international law making”, generally, or on particular occasions. The contribution will end with some conclusions as to which form of custom could survive in international criminal law, in particular, after the closing of the doors to the ICTY and ICTR.

For more information, please contact our project coordinator.


Published Jan. 18, 2012 11:42 AM - Last modified Oct. 13, 2014 10:50 AM