Reflections on some sources and methods of international criminal and humanitarian law

In litigation concerned with international crime we tend to take it for granted
that the courts “discover” both the primary and supplementary sources and that
they use each according to their proper function. In this article we shall exam-
ine in what ways criminal tribunals apply the various sources through an incon-
sistent and incoherent methodology that is purely subjective and selective in
nature. The discussion is not meant to be exhaustive, but merely illustrative. We
look at the stretching of treaty boundaries through the media of dynamic and
evolutionary interpretations, assessing when such interpretation is viable and
not simply ultra vires. Equally, we examine some aspects of the international
criminalisation process through the use of customary international law and the
conflict this may generate with regard to the principle of retroactivity and speci-
ficity of the criminal law. Next, we take into consideration the emergence and
growing importance of general principles of international criminal and human-
itarian law in the absence of relevant treaty and customary rules on a particular
issue. It is evident from our discussion that the ad hoc tribunals lack a coherent
framework and methodology for ascertaining the existence of such principles
and discover them on many occasions on a crudely selective and arbitrary basis.
The same was found to be true with regard to general principles of criminal law
and the opinions of renowned jurists. Finally, we examine the role of the
Security Council in the post 9/11 era with particular reference to its power to
adopt binding resolutions other than as international law emanating from the
processes of the UN Charter, but rather as an autonomous law-making source