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Judges, Law & War

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Shane Darcy

on 21 November 2014

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Transcript of Judges, Law & War

Dr Shane Darcy
International Judicial Legacy
Fausto Pocar (ICTY President)
Patricia Wald (ICTY)
"… it was a shock to me to judge in a system that basically had no precedent or statutory base to rely upon as to what the law was. There were some fairly pithy definitions of war crimes and crimes against humanity in the ICTY charter [...] but beyond that judges were left pretty much on their own to discern what international customary humanitarian law required."
"The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts.
Judges, Law & War
The Judicial Development of International Humanitarian Law
Irish Centre for Human Rights, National University of Ireland Galway
Dr Shane Darcy
21 November 2014
Oppenheim's International Law
"... an unwarranted assumption of legislative power which has never been given to this Tribunal by any authority."
Haopei Li (ICTY Appeals Chamber)
"It would be detrimental not only to the Tribunal but also to the future development of international criminal law and international criminal jurisdiction if our jurisprudence gave the appearance of inventing crimes – thus highly politicizing its function – where the conduct in question was not without any doubt penalized at the time when it took place".
Wolfgang Schomburg (ICTY Appeals Chamber)
"…it is interesting to see the extent to which, through obiter dictum or so-called interpretation that actually boils down to the creation of new legal standards, courts can expand their own role and actually replace lawmakers.
Antonio Cassese (ICTY President)
"In few matters do judicial discretion and freedom of judicial appreciation manifest themselves more conspicuously than in determining the existence of international custom. […] Many an act of judicial legislation may in fact be accomplished under the guise of the ascertainment of customary international law".
Hersch Lauterpacht
"…there is much opportunity for courts to be innovative and create new law, as long as, of course, one offers convincing reasoning, one relies upon general principles, and one applies or, if you prefer, one manipulates those principles in a proper and well-balanced way."
"... in view of the difficulties surrounding the codification of international law, international tribunals will in the future fulfill, inconspicuously but efficiently, a large part of the task of developing international law."
Gabrielle Kirk McDonald (ICTY President)
"As war itself has changed, the laws of war should follow. Yet, because the international community has clung passionately, politically, to the immovable rock of State sovereignty that keeps alive and keeps dominant archaic perceptions of warfare, the pace of the law has been far slower than the pace of the war.
Rosalyn Higgins (ICJ President)
"[There is] at least

a minimal agreement that judges have a creating function, that adjudication is not a mere, automatic application of existing rules to particular situations. The interpretive function of judges may do much to fill alleged gaps."
Theodor Meron (ICTY President)
"The Hague Tribunal has issued several important decisions that clarify and give judicial interpretation to some fundamental rules of international humanitarian law. […] This area of law has grown much more during these last few years than in the half-century following Nuremberg".
International Court of Justice
"It is clear that the Court cannot legislate ... its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons. [...] it states the existing law and does not legislate."
ICTY Appeals Chamber
"This fundamental principle does not prevent a court from interpreting and clarifying the elements of a particular crime. Nor does it preclude the progressive development of the law by the court. But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification".
Memorandum to Judge Biddle, Nuremberg Tribunal, 10 July 1946
"It is essential to state the views of the Tribunal as to just what the international law was. It is not too cynical to point out that whether it was or was not before your honors spoke, from the period when you do speak it is the law."
"This rich body of jurisprudence, both substantive and procedural, will be indispensable for the future enforcement of international humanitarian law in other jurisdictions. It is fair to say that no future war crimes cases will be tried without some guidance from the jurisprudence of the ICTY."
Antonio Cassese (ICTY President)
Thomas Buergenthal (ICJ President)
"....the jurisprudence of the different international tribunals can erode the unity of international law, lead to the development of conflicting or mutually exclusive legal doctrines, and thus eventually threaten the universality of international law".
Judge Picard, ICTY Trial Chamber
"... we have come to a dark place in international law indeed."
Prosecutor v. Tadic
“I pushed so much and we exploited the Tadic case to draw as much as possible from a minor defendant to launch new ideas, and be creative”
Judge Harhoff, ICTY
"I am sitting here with a very uncomfortable feeling that the court has changed the direction of [sic] pressure from “the military establishments” in certain dominant countries."
ICTY President Antonio Cassese
At least, in my area of international law, lawmakers are very often utterly impotent. Lawmakers often cannot make decisions, and the judges step in and decide".
Where before we chiseled at the rock, the ICTY is a drill, the ICC a wrecking ball."
This law is not static, but by continual adaptation follows the needs of a changing world."
"...'why don't we just jettison this stupid distinction?' - we came up with the evidence - well some evidence [laughter]"
Full transcript