Striking the Balance between Custom and Justice: Creative Legal Reasoning by International Criminal Courts

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Striking the Balance between Custom and Justice : Creative Legal Reasoning by International Criminal Courts. / Schack, Marc; Kjeldgaard-Pedersen, Astrid.

In: International Criminal Law Review, Vol. 16, 2016, p. 913-934.

Research output: Contribution to journalJournal articleResearchpeer-review

Harvard

Schack, M & Kjeldgaard-Pedersen, A 2016, 'Striking the Balance between Custom and Justice: Creative Legal Reasoning by International Criminal Courts', International Criminal Law Review, vol. 16, pp. 913-934. https://doi.org/10.1163/15718123-01605006

APA

Schack, M., & Kjeldgaard-Pedersen, A. (2016). Striking the Balance between Custom and Justice: Creative Legal Reasoning by International Criminal Courts. International Criminal Law Review, 16, 913-934. https://doi.org/10.1163/15718123-01605006

Vancouver

Schack M, Kjeldgaard-Pedersen A. Striking the Balance between Custom and Justice: Creative Legal Reasoning by International Criminal Courts. International Criminal Law Review. 2016;16:913-934. https://doi.org/10.1163/15718123-01605006

Author

Schack, Marc ; Kjeldgaard-Pedersen, Astrid. / Striking the Balance between Custom and Justice : Creative Legal Reasoning by International Criminal Courts. In: International Criminal Law Review. 2016 ; Vol. 16. pp. 913-934.

Bibtex

@article{eafaca702fc44e569d9e05916debceb7,
title = "Striking the Balance between Custom and Justice: Creative Legal Reasoning by International Criminal Courts",
abstract = "Certain customary norms complicate the work of international criminal courts and tribunals (icts). The principle of legality prescribes that no one can be convicted for 'new' or ill-defined crimes, and the rules on personal immunity bar icts from prosecuting high-level defendants. In cases involving these issues, icts face the dilemma of weighing fundamental 'rule of law' principles against their core objective: to hold leaders accountable for international crimes. Various icts have resorted to what some commentators euphemistically call 'creative' application of customary international law but critics label as 'poor legal reasoning'. By examining examples of such rulings, with particular focus on a recent string of decisions by the International Criminal Court (icc) regarding head of state immunity, this article attempts to identify and assess a modus operandi of icts confronted with the arduous choice between 'safe-bet' application of the relevant sources of law and ensuring international criminal justice. {\circledC} 2016 by Koninklijke Brill NV, Leiden, The Netherlands.",
keywords = "Faculty of Social Sciences, personal immunity, customary international law, international criminal courts, interpretation, principle of legality",
author = "Marc Schack and Astrid Kjeldgaard-Pedersen",
year = "2016",
doi = "10.1163/15718123-01605006",
language = "English",
volume = "16",
pages = "913--934",
journal = "International Criminal Law Review",
issn = "1567-536X",
publisher = "Brill - Nijhoff",

}

RIS

TY - JOUR

T1 - Striking the Balance between Custom and Justice

T2 - Creative Legal Reasoning by International Criminal Courts

AU - Schack, Marc

AU - Kjeldgaard-Pedersen, Astrid

PY - 2016

Y1 - 2016

N2 - Certain customary norms complicate the work of international criminal courts and tribunals (icts). The principle of legality prescribes that no one can be convicted for 'new' or ill-defined crimes, and the rules on personal immunity bar icts from prosecuting high-level defendants. In cases involving these issues, icts face the dilemma of weighing fundamental 'rule of law' principles against their core objective: to hold leaders accountable for international crimes. Various icts have resorted to what some commentators euphemistically call 'creative' application of customary international law but critics label as 'poor legal reasoning'. By examining examples of such rulings, with particular focus on a recent string of decisions by the International Criminal Court (icc) regarding head of state immunity, this article attempts to identify and assess a modus operandi of icts confronted with the arduous choice between 'safe-bet' application of the relevant sources of law and ensuring international criminal justice. © 2016 by Koninklijke Brill NV, Leiden, The Netherlands.

AB - Certain customary norms complicate the work of international criminal courts and tribunals (icts). The principle of legality prescribes that no one can be convicted for 'new' or ill-defined crimes, and the rules on personal immunity bar icts from prosecuting high-level defendants. In cases involving these issues, icts face the dilemma of weighing fundamental 'rule of law' principles against their core objective: to hold leaders accountable for international crimes. Various icts have resorted to what some commentators euphemistically call 'creative' application of customary international law but critics label as 'poor legal reasoning'. By examining examples of such rulings, with particular focus on a recent string of decisions by the International Criminal Court (icc) regarding head of state immunity, this article attempts to identify and assess a modus operandi of icts confronted with the arduous choice between 'safe-bet' application of the relevant sources of law and ensuring international criminal justice. © 2016 by Koninklijke Brill NV, Leiden, The Netherlands.

KW - Faculty of Social Sciences

KW - personal immunity

KW - customary international law

KW - international criminal courts

KW - interpretation

KW - principle of legality

U2 - 10.1163/15718123-01605006

DO - 10.1163/15718123-01605006

M3 - Journal article

VL - 16

SP - 913

EP - 934

JO - International Criminal Law Review

JF - International Criminal Law Review

SN - 1567-536X

ER -

ID: 167351466