Revisiting Pinochet: The Development of Customary International Criminal Law

ABSTRACT

This article explores the usefulness of the Pinochet case (particularly the final judgment of the House of Lords) as precedent for domestic courts when they apply international criminal law. The first half of the article argues against the usefulness of the ‘Pinochet precedent’, identifying instances of inconsistent and sometimes incoherent reasoning in the Law Lords' treatment of international law. Close analysis of the final judgment demonstrates that the House of Lords ultimately jettisoned customary international law and fell back on UK domestic, statutory law to make its finding. The second half of the article explores the reasons behind the Law Lords' weak treatment of international law. This part of the article advances the theory that the orthodox construction of customary international law is necessarily indeterminate and explores the internal contradictions that follow when the voluntarist construction of international law is juxtaposed to the inherently nonconsensual body of criminal law. The article nonetheless argues that international law can and should be applied by domestic tribunals and suggests an approach that will facilitate a more rigorous application of international criminal law.