Sources of International Humanitarian Law and International Criminal Law: Specific Features
Raphaël van Steenberghe
The Oxford Handbook of the Sources of International Law
Edited by Samantha Besson and Jean d'Aspremont
Law, International Law, Human Rights and Immigration, Criminal Law
10.1093/law/9780198745365.003.0042
II. Relation with the General Doctrine of the Sources of International Law
1. Formation of Customary Law and General Principles of International Law
2. Regulation of Treaties
III. Specific Features of some IHL and ICL Sources
1. The Rome Statute
2. Commitments by Armed Groups
IV. Concluding Remarks
Table of International Instruments
The Sources of International Law: An Introduction
Sources in the Scholastic Legacy: Ius Naturaeand Ius Gentium Revisited by Theologians
Sources in the Scholastic Legacy: The (re)Construction of the Ius Gentium in the Second Scholastic
Sources in the Modern Tradition: An Overview of the Sources of the Sources in the Classical Works of International Law
Sources in the Modern Tradition: The Nature of Europe's Classical Law of Nations
Sources of International Law in the Nineteenth-Century European Tradition: The Myth of Positivism
Sources of International Law in the Nineteenth-Century European Tradition: Insights from Practice and Theory
The History of Article 38 of the Statute of the International Court of Justice: 'A Purely Platonic Discussion'?
The History of Article 38 of the Statute of the International Court of Justice: The Journey from the Past to the Present
Sources in the Anti-Formalist Tradition: A Prelude to Institutional Discourses in International Law
Sources in the Anti-Formalist Tradition: 'That Monster Custom, Who Doth All Sense Doth Eat'
Sources in the Meta-History of International Law: From Liberal Nihilism and the Anti-Metaphysics of Modernity to an Aristotelian Ethical Order
Sources in the Meta-History of International Law: A Little Meta-Theory—Paradigms, Article 38, and the Sources of International Law
Legal History as a Source of International Law: From Classical to Modern International Law
Legal History as a Source of International Law: The Politics of Knowledge
Sources in Legal-Positivist Theories: Law as Necessarily Posited and the Challenge of Customary Law Creation
Sources in Legal-Positivist Theories: The Pure Theory's Structural Analysis of the Law
Sources in Legal-Formalist Theories: The Poor Vehicle of Legal Forms
Sources in Legal-Formalist Theories: A Formalist Account of the Role of Sources in International Law
Sources in Interpretation Theories: The International Law-Making Process
Sources in Interpretation Theories: An Interdependent Relationship
Sources in the Meta-Theory of International Law: Exploring the Hermeneutics, Authority, and Publicness of International Law
Sources in the Meta-Theory of International Law: Hermeneutical Conversations
Legal Theory As a Source of International Law: Institutional Facts and the Identification of International Law
Legal Theory as a Source of International Law: Doctrine as Constitutive of International Law
Sources and the Legality and Validity of International Law: What Makes Law 'International'?
Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-Positive Norms
Sources and the Systematicity of International Law: A Philosophical Perspective
Sources and the Systematicity of International Law: A Co-Constitutive Relationship?
Sources and the Hierarchy of International Law: The Place of Peremptory Norms and Article 103 of the UN Charter within the Sources of International Law
Sources and the Hierarchy of International Law: Source Preferences and Scales of Values
Sources and the Normativity of International Law: A Post-Foundational Perspective
Sources and the Normativity of International Law: From Validity to Justification
Sources and the Legitimate Authority of International Law: A Challenge to the 'Standard View'?
Sources and the Legitimate Authority of International Law: Democratic Legitimacy and the Sources of International Law
Sources and the Subjects of International Law: A Plurality of Law-Making Participants
Sources and the Subjects of International Law: The European Union's Semi-Autonomous System of Sources
Sources and the Enforcement of International Law: What Norms Do International Law-Enforcement Bodies Actually Invoke?
Sources and the Enforcement of International Law: Domestic Courts—Another Brick in the Wall?
Sources of International Human Rights Law: How General is General International Law?
Sources of International Human Rights Law: Human Rights Treaties
Sources of International Humanitarian Law and International Criminal Law: War/Crimes and the Limits of the Doctrine of Sources
Sources of International Environmental Law: Formality and Informality in the Dynamic Evolution of International Environmental Law Norms
Sources of International Environmental Law: Interactional Law
Sources of International Organizations' Law: Reflections on Accountability
Sources of International Organizations' Law: Why Custom and General Principles are Crucial
Sources of International Trade Law: Mantras and Controversies at the World Trade Organization
Sources of International Trade Law: Understanding What the Vienna Convention Says About Identifying and Using 'Sources For Treaty Interpretation'
Sources of International Investment Law: Conceptual Foundations of Unruly Practices
Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law
Sources of International Law in Domestic Law: Domestic Constitutional Structure and the Sources of International Law
Sources of International Law in Domestic Law: Relationship Between International and Municipal Law Sources
This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.
Keywords: Human rights remedies, General principles of international law, International criminal courts and tribunals, Sources of international law
Raphaël van Steenberghe, Professor of International Humanitarian Law at the University of Louvain (UCL), and Permanent Researcher of the Belgian National Fund for Scientific Research (FNRS), Belgium.