In March 2016, both the US House of Representatives and Secretary of State John Kerry designated the alleged crimes committed by ISIL against, inter alia, the Yezidis, a small religious minority in Iraq and Syria, as 'genocide.' This article examines the evidence for this designation as emerges from various human rights reports and other publicly available sources, to assess whether ISIL's actions against the Yezidis may be legally characterized as the crime of genocide. The article finds that, while ISIL's actions against the Yezidis in Iraq and Syria may constitute the underlying acts of the crime of genocide, on the basis of information currently available in the public domain, it is not possible to reach a view on whether individuals perpetrators had the dolus specialis necessary to commit the crime of genocide. The article, however, outlines a pattern of conduct which could indicate a genocidal plan.
This article focuses on the distinctions that the ad hoc Tribunals have drawn between the comparative law method and the review of evidence for clarifying customary international law and general principles of law. It outlines the dangers in the readiness of some international judges to accept narrow inquiries, which at best attach special weight and at worst restrict the scope of inquiry to a single, specific legal system. The readiness of some international judges to simply elevate legal rules and concepts with which they are familiar from their own legal education and practice to the level of universal truths may imply a failure to understand the other legal traditions on offer. The article concludes by showing that, unless the dangers inherent in the readiness to accept narrow inquiries are clearly emphasized, the achievement of an international criminal justice that is truly tolerant of plurality is a long way off.
This article offers an interpretation of Article 38(1)(d) of the ICJ Statute based on the formal pronouncements of international criminal courts and tribunals, distilled from their judgments. It considers that the qualification 'subsidiary' is meant neither to distinguish the means from the primary sources nor to denote 'of lesser importance'. It further examines the verification process envisaged in 'the determination of rules of law', as well as the more direct impact of judicial decisions vis-à-vis the teachings of publicists.
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