Appraisal-Based and Flexible Approaches to External Precedent in International Criminal Law

Zammit Borda, Aldo (2015) Appraisal-Based and Flexible Approaches to External Precedent in International Criminal Law. Leiden Journal of International Law, 28 (3). pp. 643-664. ISSN 1478-9698

[img]
Preview
Text
Accepted Version
Available under the following license: Creative Commons Attribution Non-commercial No Derivatives.

Download (430kB) | Preview
Official URL: https://doi.org/10.1017/S0922156515000333

Abstract

This article focuses on the approaches of international criminal judges to using external precedent, distinguishing between the appraisal-based and flexible approaches. On the one hand, the appraisal-based approach refers to uses of external judicial decisions which are preceded by an express legal appraisal. On the other hand, the flexible approach denotes a less stringent use of such decisions. It finds that, in a number of cases, international criminal judges have adopted a flexible approach to decisions and have assimilated them within the legal framework of the referring court or tribunal without the necessary adjustment. This may have important implications for the principle of legality and the fairness of the proceedings. The paper indicates that the adoption of either the appraisal-based or flexible approaches to external judicial decisions is not necessarily linked to the specific legal backgrounds of the judges involved, and different judges hailing from varying legal backgrounds have shifted between these approaches in different cases. This suggests that there is need for greater rigour in the judicial methodology for using external judicial decisions and, in particular, the importance of the appraisal-based approach to using such decisions, to ensure their the congruence with the legal framework of the referring court or tribunal.

Item Type: Journal Article
Faculty: ARCHIVED Faculty of Arts, Law & Social Sciences (until September 2018)
Depositing User: Lisa Blanshard
Date Deposited: 12 Nov 2019 15:57
Last Modified: 09 Sep 2021 19:01
URI: https://arro.anglia.ac.uk/id/eprint/704967

Actions (login required)

Edit Item Edit Item