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Customary law or judge-made law: Judicial creativity at the UN criminal tribunals

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Chapter Summary

From the earliest days of the international criminal tribunals, customary international law has played an extraordinary and unprecedented role. The UN international criminal tribunals the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) have no explicit authorization in their statutes for the general application of customary international law. The relationship between the two sources of customary international law State practice and opinio juris is not particularly clear, and there would appear to be different views as to which of them is the more important. When the ICTY Statute was being drafted, the Secretary-General of the United Nations issued an explanatory report on the draft text that he was submitting to the Security Council. Customary international law has provided the international criminal tribunals with an extraordinary opportunity for judicial creativity.

Keywords: criminal tribunals; customary international law; ICTY; International Criminal Tribunal for Rwanda (ICTR); opinio juris; Security Council; Special Court for Sierra Leone (SCSL); United Nations



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