authority of international tribunals

Francisco Martin ricenter at
Wed May 19 11:07:34 PDT 2004

Just to clear up a matter . . . .  The context of the posting below by Prof. Sellers (which originally appeared on the ASIL listserv) was made in response to my claim (I am the "Francisco" mentioned below) that the ICTY's decisions in the Mucic and Naletilic and Martinovic Cases established that common article 3 of the GCs applied also to international conflicts. (For those curious, the discussion originally surrounded the issue of whether CIA and private military contractors could be charged with common article 3 violations against non-Iraqi and non-Afghani detainees under the War Crimes Act of 1996.  They probably can.)  

It appears that Prof. Sellers and Prof. Kammerhofer are overstating my position.  I recognize that, strictly and formally speaking, international courts can only  bind parties to cases and interpret law -- not make law.  This is consistent with the ICJ statute regarding judicial opinions as a subsidiary means for determining law.  However, decisions from international tribunals represent substantial authority for interpreting treaties in future cases between different parties. International courts cite precedent all the time for interpretive purposes.

Is this so different from how the courts operate in the U.S. in regard to citing precedent?  I don't think so.  For example, the Supreme Court is not bound by its own precedents, but it cites them all the time as interpretive authorities and often overrules its previous holdings.  After all, there is no stare decisis doctrine in the Constitution.

Anyway, I just wanted to keep the record clear.

Francisco Forrest Martin

----- Original Message ----- 
From: Mortimer Sellers 
To: conlawprof at
Cc: Mortimer Sellers
Sent: 5/19/2004 1:01:58 PM 
Subject: authority of international tribunals

Dear colleagues,

  We have had several exchanges on this list about the role of international law in U.S. courts.

  Sometimes U.S. lawyers cite international tribunals as if they were binding authority for the content of international law.  They are not.  Such tribunals are at best a "subsidiary means" (I.C.J. statute) for determining rules of law.

  This is important if one believes, as many do, that international law is part of the Constitution of the United States, and binds U.S. courts.  With his permission, I am attaching an e-mail from Jorg Kammerhofer on the ASIL listserve, which tries to clarify this point in response to some posts by North American lawyers.

                Tim Sellers

-----Original Message-----
From: Jörg Kammerhofer [mailto:j.kaho at]
Sent: Wednesday, May 19, 2004 10:51 AM
To: ASILforum
Subject: Re: Who is Protected; Who Apparently Might Be Charged?

Dear fellow list members,

 Let me make one thing absolutely clear. The fact that an international tribunal (created by the Security Council) makes a pronouncement on what it thinks is the law does not mean that this pronouncement is authoritative. As far as international treaty law or customary international law are concerned, these pronouncements have no more worth than if [Mortimer Sellers] , André de Hoogh or Jörg Kammerhofer had made the pronouncements. International law is not a common law! 

I will illustrate briefly: The ICTY is not a primary source of international law, and by no means one of higher order than custom or treaty. As far as I know, the Geneva Conventions do not authorise the ICTY to create either general norms authoritatively interpreting (i.e. changing) or individual norms applying (i.e. determining for a particular case) its norms. Its authority under international treaty law derives from the authority of the Council, which, in turn, derives from the Charter. The Charter - it is true - claims to be a higher sort of norm (Art 103), but, while I am not terribly familiar with the statute of the ICTY I am almost certain that it does not authorise the tribunal to create norms binding upon the parties to the Geneva Conventions or upon all states, respectively.

Its informal authority derives from the fact that the judges serving on the bench are highly respected and experienced international lawyers. I am perfectly willing to agree that their pronouncements must be taken seriously - as must any accomplished scholar's - and their argument evaluated and accepted or rejected. Their pronouncement may well be true (and I do not wish to discuss the merits of Francisco's statement here). But to say that because an international criminal tribunal has stated that 'X is law.' (where X is a given norm), because of the very fact of its making the statement X is law, that the statement establishes that X is law, that - even taken as declaration - the law cannot be other than X, is simply wrong and smacks of legal cultural imperialism or wishful thinking.

Yours sincerely,

Jörg Kammerhofer
j.kaho at 
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