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The Use of Precedent as Subsidiary Means and Sources of International Criminal Law

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journal contribution
posted on 2023-07-26, 13:29 authored by Aldo Zammit Borda
This article examines the use of precedent in the judgments of international criminal courts and tribunals. It finds that although such courts and tribunals have resorted to external judicial decisions as subsidiary means for the determination of rules of law, in some cases, their use of external judicial decisions has been equivocal. Moreover, in two notable cases, these courts and tribunals have unequivocally relied on precedent as a direct source of law. In this context, the article offers some reflections on whether courts may serve as sources for the creation of rules of law. It finds that there does not seem to be any legal basis for the use of external judicial decisions as direct sources of rules of international law. There is, moreover, a danger that regarding external judicial decisions as direct sources may encourage a lax, uncritical reliance on such decisions.

History

Refereed

  • Yes

Volume

18

Issue number

2

Page range

65-82

Publication title

Tilburg Law Review

ISSN

2211-2545

Publisher

Ubiquity Press

File version

  • Published version

Language

  • eng

Legacy posted date

2013-12-16

Legacy creation date

2022-02-17

Legacy Faculty/School/Department

ARCHIVED Faculty of Arts, Law & Social Sciences (until September 2018)

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