Of Fragmentation and Precedents in International Criminal Law

Andrea Carcano
2016 Journal of International Criminal Justice  
Following highly divergent approaches taken by judges in the Peris› ic¤ , Taylor and S › ainovic¤ 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
more » ... 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.
doi:10.1093/jicj/mqw060 fatcat:4nad6bmbu5eutoipjtq7oyxnfa