Zammit Borda - Precedent CJICL.pdf (152.74 kB)
Precedent in International Criminal Courts and Tribunals
journal contribution
posted on 2023-07-26, 13:29 authored by Aldo Zammit BordaThis article examines the use of precedent in international criminal adjudication and engages with the ‘theory of precedent’ suggested by Daniel Terris, Cesare P R Romano and Leigh Swigart. The article considers the inapplicability of the doctrine of binding precedent in this area. It also examines the principle of judicial comity, discussing instances in which international criminal courts and tribunals have appeared to depart from the findings of external judicial decisions. It further considers the reliance of such courts and tribunals on judicial decisions from both generalist and specialist international courts, as well as from national courts, examining the process of transposition associated with such reliance. It finds that the approaches of international criminal courts and tribunals to the use of external judicial decisions have generally been multiple, incoherent and, in some cases, contradictory. In this respect, the article finds little evidence for the view that it is possible to distil any consistent ‘theory of precedent’ from the practice of such courts and tribunals.
History
Refereed
- Yes
Volume
2Issue number
2Page range
287-313Publication title
Cambridge Journal of International and Comparative LawISSN
2050-1706External DOI
Publisher
Edward ElgarFile version
- Published version
Language
- eng
Official URL
Legacy posted date
2013-12-16Legacy creation date
2022-02-17Legacy Faculty/School/Department
ARCHIVED Faculty of Arts, Law & Social Sciences (until September 2018)Usage metrics
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