Judicial Lawmaking, Discourse Theory, and the ICTY on Belligerent Reprisals

Abstract

Without presenting a full definition, it can be said that the notion of judicial lawmaking implies the idea that courts create normative expectations beyond the individual case. That is, our question is whether courts’ normative declarations have an effect which is abstract and general. Our purpose here is to ask about judicial lawmaking in this sense with respect to international criminal courts and tribunals. In particular, we will focus on the International Criminal Tribunal for the Former Yugoslavia (ICTY). No other international criminal court or tribunal has issued so many judgments as the ICTY, so it seems a particularly useful focus for examining the creation of normative expectations.

Dr. Milan Kuhli, M.A., Assessor jur., is a Research Fellow at the Cluster of Excellence “Formation of Normative Orders” at the Goethe University Frankfurt am Main. Professor Dr. Klaus Günther is Professor of Legal Theory, Criminal Law, and Criminal Procedure at the Goethe University and one of the Co-Speakers of the Normative Orders Cluster of Excellence. We would like to thank Joshua Kleinfeld, J.D., Yale Law School, for both his substantive suggestions and his help as language editor and translator.