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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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The Reinvention of War Crimes by the International Criminal Tribunals

The Reinvention of War Crimes by the International Criminal Tribunals

Chapter:
(p.106) 5 The Reinvention of War Crimes by the International Criminal Tribunals
Source:
Judicial Creativity at the International Criminal Tribunals
Author(s):

Shane Darcy

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199591466.003.0006

This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. It considers the ground-breaking Tadić jurisprudence relating to grave breaches and ‘violations of the laws and customs of war’, and explores how the formulation for war crimes devised by the Appeals Chamber has been followed with regard to specific offences. The chapter looks at a potential downside of such expansive conceptions of the law in terms of a possible compromising of the principle nullum crimen sine lege. Given the nature of the Rome Statute of the International Criminal Court, it is argued that the culmination of the work of the ad hoc Tribunals may mark the end of an era of judicial creativity in the context of the international law of war crimes.

Keywords:   international criminal law, crimes, war crimes, sources of law, customary international law, judicial creativity, international law

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