When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War

Abstract

Although the laws of war are frequently altered after major conflicts, the post-Cold War revision of these rules has not occurred as a result of treaty negotiations. It has, instead, resulted from the United Nations Security Council's decision to create two temporary, ad hoc tribunals and from these courts' ensuing judicial decisions. The tribunals' transformation of the laws of war provides an opportunity to assess one of the most striking phenomena of international politics in the past ten years: the judicialization of international relations. Through the history of the tribunals, this Article provides a critical evaluation of the role, character, and normative desirability of international judicial lawmaking. It argues that international judicial lawmaking is most appropriate when the relevant underlying treaties are old, where underlying conditions have changed, and where there is little prospect for the treaties' revision. The story also highlights the limitations of rational design, a dominant theoretical paradigm used to analyze international institutions. As the history of international criminal law demonstrates, international legal development is far more contingent and complex than the relatively simple model used by most rational design theorists. It thus calls into question the utility of theoretical models that do not include an account of institutional development and transformation, particularly over time. Finally, the Article argues that temporary international courts can serve a critical, if underappreciated, role in the development of new areas of international law.