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19 ILSA Quart. 16 (2010-2011)
Grotian Moment Concept, The

handle is hein.jessup/ilsaqrtly0019 and id is 190 raw text is: The Grotian Moment Concept by Michael P Scharf' T his article examines the concept of Grotian Moment, a term that denotes a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. Under the traditional approach to determining whether an emerging norm has ripened into a binding rule of customary interna- tional law, courts and commen- tators examined two factors: (1) widespread state practice; and (2) manifestations of opinio juris (states' acceptance of the norm out of a sense of obligation). The Grolian Moment concept sug- gests the significance of a third factor: the context in which the rule arises. It thereby explains how customary international law can sometimes be created with scant evidence of state practice in times of fundamental change in the international system. der rule, was applied by the Nuremberg Tribunal and the Control Council Law No. 10 Tribunals that tried Nazi war criminals after World War II, and has since been applied by the Yugoslavia Tribunal, Rwanda Tribunal, and Special Court for Sierra Leone. The attorneys for the Khmer Rouge Defendants argued that the judgments of the Nuremberg Tribunal and its Control Council Law No. 10 progeny provided too scant a samping to constitute a periods of extraordinary chane'the widespread state prac- whether by technological advances, tice and opinto juris required the commission o new forms of to establish JCE as a custom- crimes against humanity, or the ary international norm as of development of new means of 1975, and that the Cambodia warfare orterrorism, a concept that Tribunal could not rely on the rationalizes accelerated formation of jurisprudence of the modern customary rules is required it international tribunals because international law isto keep pace they were created after the with such developments. commission of the crimes in question. In response, the brief that I drafted maintained that Nuremberg constituted a Gro- During a sabbatical in the fall of 2008, I had the unique experience of serving as Special Assis- tant to the International Prosecutor of the Ex- traordinary Chambers in the Courts of Cambodia (ECCC), the tribunal created by the United Na- tions and government of Cambodia to prosecute the former leaders of the Khmer Rouge for the atrocities committed during their reign of terror (1975- 1979)2 While in Phnom Penh, I was as- signed to prepare a first draft of the Prosecutor's Brief3 in reply to the Defense Motion to Exclude Joint Criminal Enterprise (JCE) as a mode of li- ability from the trial of the five surviving leaders of the Khmer Rouge. The JCE doctrine, which is somewhat similar to the American felony mur- tian Moment- an instance in which there is such a fundamental change to the international system that a new principle of customary inter- national law can arise with exceptional velocity. This was the first time in history that the term Grotian Moment was used in a proceeding before an international court. Yet, the concept has potentially broad application. This article be- gins with a history of the concept of Grotian Moment, while comparing and contrasting the concept with the notion of instant customary international law. It then explores application of the Grotian Moment concept to several areas of emerging customary international law. ISA 0uariterly ) volume 19 issue 3 a February 2011

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