Esakov, G.A. Customary international law as a source for criminal law prohibitions

Abstract: The article is devoted to customary international law as a source of Russian criminal law. The author analyzes the issue of whether the norms of international customary law may be used as crime-forming elements in the crime of use of prohibited means and methods of waging war. Based upon the study of history of the issue and international practice («the Martens clause», practice of international tribunals, norms of international humanitarian law, practice of the Constitutional Court of the Russian Federation and the European Court of Human Rights) the author formulates the criteria for such use. In the opinion of the author, it is acceptable to establish contents of criminal legal prohibition via the norms of international customary law, which are included into the sphere of conventionally prohibited behavior through the «Martens clause», on a condition that the obvious unlawfulness of the behavior was understood by a person at the moment when the crime was being committed. At the same time it shall inevitably be decided ad hoc, and the national courts shall have to face complicated issues of establishing the contents of norms of international customary law.

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