This chapter discusses the methodology of establishment of customary humanitarian law in the practice of the international criminal tribunal and the International Committee of the Red Cross (ICRC). After shedding some light in the difficulties inherent in the ascertainment of customary humanitarian law, the chapter discusses the extent to which practice shows a emancipation by these bodies from the general rule of recognition pertaining to the establishment of customary law. Although concluding that it is too early to speak about an autonomization of the rule of recognition regarding the establishment of customary humanitarian law (and hence a fragmentation of the theory of customary international law), this chapter submits that some emancipatory moves can be clearly observed in practice of criminal tribunals and the ICRC. This chapter ends with a few critical remarks on the narratives used by these bodies and their inclination to obfuscate their emancipatory moves behind discourses vindicating the monopoly of the general rule of recognition and the kinship between international humanitarian law and general public international law. Note: Downloadable document is in French.
Monday, March 11, 2013
d'Aspremont: An Autonomous Regime of Identification of Customary International Humanitarian Law: Do Not Say What You Do or Do Not Do What You Say?
Jean d'Aspremont (Univ. of Manchester - Law) has posted An Autonomous Regime of Identification of Customary International Humanitarian Law: Do Not Say What You Do or Do Not Do What You Say? (in Droit international humanitaire: un régime spécial de droit international?, R. van Steenberghe ed., forthcoming). Here's the abstract: