The International Tribunal for Yugoslavia (ICTY) is credited with having established the world’s first international criminal tribunal for prosecuting those who have contravened the more serious aspects of humanitarian laws.1 The problem is, defining what amounts to the most…
g the horrors and advances in international jurisprudence.2 Adding to the international regime for humanitarian international laws, the International Criminal Court (ICC) incorporated the draft Elements of Crimes which sets out the definition of humanitarian laws such as genocide, crimes against humanity and war crimes as provided for in the ICC Statute.3 The resulting body of international case law demonstrates that the international judiciary have developed a penchant for judicial creativity which sits somewhere between state practice and opinio juris and ultimately forms the foundations of international customary law.4
In Prosecutor v Kuprekic et al (Case No. IT-95-16 T) the ICTY determined that in determining the appropriate line of customary international law, reference must be had to domestic codes as well as case law.5 Essentially, the ICTY has used as demonstrated in Kuprekic et al national judgments for interpreting and applying treaties as well as customary international law and principles of international law.6
Taking the concept of state practice a step further, the ICTY in Kuprekic et al identified what is referred to as the concept of jus cogens in customary international law.7 Jus cogens takes the position that it is not necessary to conduct a protracted search of national laws for evidence that states are conducting themselves “out of a sense of obligation”.8 In other words certain human rights and concepts of humanity are taken for granted in customary international law. For instance the ICTY in the Prosecutor v Furundfija IT-95-17/I-T (December 10, 1998) ruled that the prohibitions and intolerance of torture are rules of jus cogens as well as the judgments contained in the International Court of Justice and the principles of the Martens Clause are concepts that lead jurisprudence or opinion juris.9
The Martens Clause therefore takes on a significant role in the development of international customary law in that it guides judicial ...
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