Part IV The Regimes of the Sources of International Law, s.XXI Sources of International Humanitarian Law and International Criminal Law, Ch.42 Sources of International Humanitarian Law and International Criminal Law: War/Crimes and the Limits of the Doctrine of Sources
Steven R. Ratner
Edited By: Jean d'Aspremont, Samantha Besson
- Human rights remedies — International criminal courts and tribunals — General principles of international law — Sources of international law
This chapter contends that international humanitarian law (IHL) and criminal law (ICL) cast serious doubt on the traditional doctrine and understanding of sources. Article 38 of the International Court of Justice (ICJ) Statute inadequately describes key modes for prescribing law in these areas. International courts are particularly important for both areas, perhaps because of their unprincipled approach to the indicia of custom. More fundamentally, IHL and ICL suggest that sources scholarship should see itself not as determining necessary and sufficient methods for the making of law, but rather as a search for relevant inputs that become indicators of law. Under this view, certain processes are more authoritative than others, but all deserve scrutiny. Moreover, a theory of sources must take account of the purpose of understanding sources, which is to promote compliance with rules. IHL and ICL also shed light on the importance of morality and ethics to the law-making process.