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This article investigates the influence of the international criminal tribunals on the conclusions reached by ICRC Customary Study. To engage in such an analysis requires an understanding of the interplay of treaties and customary international law and of the status of the jurisprudence of international tribunals as a source of international law. In relation to the latter, it is noted that the impact of any individual case is strongly linked to the quality of the reasoning it contains. Having thus set the scene, this article then goes on to appraise the ICRC Study’s approach to the international criminal tribunals founding documents and case-law. It criticises the Study for not setting out the precise normative status it places on the ICTY, ICTR and Special Court for Sierra Leone’s Statutes, and for failing to take a sufficiently nuanced view on the Rome Statute, in particular owing to Article 10 of that Treaty. The piece then moves on to look at some instances where case-law is relied upon by the Study without sufficient discussion of its merits, and where it has placed too much reliance on controversial aspects of the Rome Statute. It concludes by noting the problematic relationship between some of the rules and their commentary, but, despite the criticisms made, also agreeing with many of the conclusions the Study reaches.

Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study