Browsing by Author "Peltonen, Aleksi"

This thesis examines the role that contemporary international criminal courts play in the formation of customary international law. It addresses applicable law and the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the (permanent) International Criminal Court (ICC). More specifically, this thesis provides answers as to the role customary law plays as a source of applicable law in these courts and further, the role these courts play in developing the content of customary law. International criminal courts serve as important entities in discovering and interpreting existing rules of customary international law. Although these courts’ primary function is to apply existing law, not to create it, their case law forms an essential part of the formation process of customary international law. But uniting the legislative and judicial processes together diminishes the legitimacy of the resulting rules. The problem comes to the fore when international criminal courts broaden the scope of individual criminal liability by expanding the definitions of international crimes. The principle of legality –inherent to criminal law– prohibits retroactive crime creation and punishment and thus seems to prohibit courts from interpreting law expansively. However, throughout the history of international criminal law international criminal courts have been remarkably productive in their interpretations. This thesis examines the role of customary law in the practice of contemporary international criminal courts. It elaborates on the interplay between customary law and judicial decision and examines how traditional and modern approaches to custom formation deal with international courts as entities capable of forming new rules of customary law. Finally, it analyzes critically how rules of customary law have been discovered and identified in contemporary international criminal courts. By addressing the methods and arguments used in judicial reasoning it examines whether international criminal courts have fulfilled the requirements of the principle of legality in their work. The main argument of this thesis is that international criminal courts operate in the very heart of the customary law-making process. Their contribution to the corpus of international criminal law has been indispensable. However, the judicial creativity practiced by the modern international criminal courts seems to be on the decline as the ad hoc Tribunals (ICTY and ICTR) are concluding their work and the ICC begins to lead the way for the future application of international criminal law.