Journal Article

Of Fragmentation and Precedents in International Criminal Law

Andrea Carcano

in Journal of International Criminal Justice

Volume 14, issue 4, pages 771-792
Published in print September 2016 | ISSN: 1478-1387
Published online October 2016 | e-ISSN: 1478-1395 | DOI: https://dx.doi.org/10.1093/jicj/mqw060
Of Fragmentation and Precedents in International Criminal Law

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Following highly divergent approaches taken by judges in the Perišić, Taylor and Šainović judgments, the dispute over the application of the standard of ‘specific direction’ as an element of actus reus of aiding and abetting liability appears to have been settled within the subsequent jurisprudence of the ad hoc international criminal tribunals. Yet the various legal issues raised by the judgments continue to vex: viewing this particular line of cases as mere instances of ‘fragmentation’ of international criminal law (ICL) would be a superficial exercise. After discussing the notion of ‘fragmentation’ and the value of using the metaphor in the context of ICL, the author turns to substantive criminal law to try and determine the correct actus reus of aiding and abetting liability in contemporary ICL, and to ask whether ‘specific direction’ has any role to play therein. He then addresses the more general problem of determining the role of coherence and consistency in the development of ICL, the function of precedents within and across international courts and tribunals, and the evolving role and function of customary international law in contemporary ICL to draw lessons for the International Criminal Court.

Journal Article.  11223 words. 

Subjects: Criminal Law ; International Law ; International Criminal Law ; International Humanitarian Law ; Transnational Crime

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