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Judicial Creativity at the International Criminal Tribunals$
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Shane Darcy and Joseph Powderly

Print publication date: 2010

Print ISBN-13: 9780199591466

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199591466.001.0001

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Using Custom to Reconceptualize Crimes Against Humanity

Using Custom to Reconceptualize Crimes Against Humanity

(p.80) 4 Using Custom to Reconceptualize Crimes Against Humanity
Judicial Creativity at the International Criminal Tribunals

Larissa van den Herik

Oxford University Press

This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.

Keywords:   international criminal law, crimes, crimes against humanity, sources of law, customary international law, armed conflict, customary law

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