Precedent in international criminal courts and tribunals

Abstract

This 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.