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20 Int'l Crim. L. Rev. 805 (2020)
Custom in General International Law and International Criminal Law: A Survey of Selected Issues

handle is hein.journals/intcrimlrb20 and id is 802 raw text is: INTERNATIONAL CRIMINAL LAW REVIEW Crinal BRILL 20 (2020) 805-840 Review N IJ H O F F brillcom/icla Custom in General International Law and International Criminal Law: A Survey of Selected Issues Diego Mejia-Lemos National University of Singapore, Singapore; Xi'an Jiaotong University, Xi'an, China d.ml@nyu.edu Abstract This article surveys selected decisions of international criminal courts and tribunals, and related literature, examining custom from a general standpoint. This article con- siders the place and nature of custom, with a particular focus on challenges levelled against custom's suitability in international criminal law. This article also analyses cus- tom's 'structure, and, more specifically, the application of the 'two-element approach' by international criminal courts and tribunals. This articles then discusses claims that international criminal courts and tribunals engage in sui generis customary law- making, and revisits the distinction between custom inforo and in pays, examining that distinction's pertinence to assessing such claims. Having emphasised the influ- ence of general international law on international criminal law, this article lastly re- verses its focus, and addresses custom's wider functions as source for rules on custom's identification and, more generally, other sources' recognition, showing how some deci- sions of international criminal courts and tribunals elucidate those wider functions. Keywords public international law (PIL) - sources of international law - general international law - customary international law - international criminal law (ICL) - international criminal courts and tribunals - International Criminal Tribunal for the formerYugosla- via (ICTY) - acceptance as law (opiniojuris) © KONINKLIJKE BRILL NV, LEIDEN, 2020 DOI:10.1163/15718123-bja10025

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