This chapter examines the conditions under which international tribunals may issue orders for interim measures in contentious cases in order to preserve the parties’ respective rights pending final judgment on the merits of the case. It contends that tribunals influence one another in their practice. The chapter first considers whether international tribunals can be categorised as international organisations. It starts by examining relevant jurisprudence of the International Criminal Court (ICC) which has explicitly addressed this issue and affirmed its institutional nature. Although it is not competent to entertain disputes which involve states, the view expounded by the ICC is applicable mutatis mutandis to other international courts and tribunals. Drawing on Eli Lauterpacht’s notions of cross-fertilisation and parallel instances, and employing principles of international institutional law, primarily maxims of constitutional interpretation and the doctrine of functionalism, this chapter then addresses whether these in themselves provide a foundation for a general claim that interim measures orders are binding and impose obligations on the parties to which they are addressed. This involves a close analysis of the LaGrand case. The underpinning premise is that if international tribunals are conceived as international organisations, they have a degree of autonomy in determining the parameters of their competence which is detached from the intentions of their authors. The chapter then turns to the influence exerted by the International Court’s practice concerning interim measures on that of other international tribunals in matters such as the requirements of urgency and irreparable prejudice as prerequisites for the indication of measures. It concludes by noting that this process is dynamic as developments in the practice of one court may be received by others. This is illustrated by the adoption of the notion of ‘plausibility’ by international tribunals once this criterion had been enunciated by the International Court of Justice. As a parting shot, possible normative bases for this exchange of practice are briefly canvassed.

This chapter examines state responsibility for system criminality: that is, the remedies available under international law should a state order or encourage, permit or tolerate the widespread or systematic commission of international crimes, even if these are lawful under its domestic law. The analysis here is restricted to acts which threaten core values of international society, such as genocide, torture, and widespread or systematic violations of the law of armed conflict which amount to crimes against humanity. This chapter does not discuss individual criminal responsibility for acts that amount to international crimes, but rather examines the possibilities of engaging the responsibility of the allegedly delinquent state.

As Nollkaemper points out, state responsibility is neither criminal nor civil as we conceive these in domestic legal systems. At its core, a finding of state responsibility simply records that the delinquent state has committed a breach of general international law which binds all states, or of a specific legal obligation which binds two or more states. The aims of the ascription of responsibility to a state for system criminality encompass the termination of the unlawful conduct and prevention of its repetition; the vindication and confirmation of fundamental norms of the international legal system; and the reconciliation of the entities and individuals implicated in the delict, whether as perpetrators or injured. Given these objectives, can the law of state responsibility provide an adequate response to acts ‘performed in response to orders from authority that [are] considered illegal or immoral by the larger community’?

Introduction

The function of this chapter is not to evaluate the substantive merits of the customary rules formulated in the Study on customary international humanitarian law applicable in international and non-international armed conflicts. Rather it aims to evaluate the methodology underpinning it – in particular, the approach adopted to the question of custom formation – in order that its conceptual foundations may be tested and appraised. The structure of this chapter is quite straightforward. It starts by raising some general considerations regarding the reduction of customary law to a written text, essentially issues associated with the process of codification. A brief account of the methodology employed in the Study is then made in order to lay the basis for its evaluation. One of the principal questions addressed is whether the Study's methodology is as traditional as it claims to be: this necessitates an examination of the role of treaty practice in custom formation and the question of persistent objection. The final section is a critical appraisal of some aspects of the practice invoked by the Study. At the outset, however, it must be emphasised that a critical scrutiny of the Study's methodology does not necessarily undermine the validity of the substantive conclusions reached.

The question of codification

Perhaps the obvious analogies to the Study are the Harvard Drafts of the 1920s and 1930s and the US Restatement of Foreign Relations Law.