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Title: International criminal adjudication, judicial cross-referencing and the international criminal court
Author: Jones, Annika
Awarding Body: University of Nottingham
Current Institution: University of Nottingham
Date of Award: 2012
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As a result of the expansion and development of international law and the proliferation of international courts and tribunals, judges working in different institutions are increasingly coming to encounter similar issues of law and fact. Consequently, new opportunities have arisen for judicial cross-referencing at the international level, raising the question of when and how judges should use the decisions of other institutions in the course of their decision-making. This thesis examines the use of judicial decisions at the International Criminal Court (lCC). The Court operates as part of a wide institutional framework which responds to the commission of mass atrocity. Many of the issues that arise before the Court will already have been considered by other judicial institutions at the international, regional and domestic levels. The thesis sets out the parameters for judicial crossreferencing at the ICC, taking into consideration developments within the international legal order regarding the sources of international law, treaty interpretation and international fact-finding, and the benefits and risks associated with judicial interaction in the international criminal context. It looks at how judicial decisions should be· used in the identification of international law at the ICC, the interpretation of the Rome Statute and the establishment of the facts underlying the charges. It then turns to consider the approach that has been taken to judicial cross-referencing in the early years of the Court's operation through the use of two empirical methods: interviews with judges and legal officers of the ICC and content analysis of the decisions of the Court in the case of Prosecutor v. Thomas Lubanga Oyi/o. Drawing upon Hart's idea of primary and secondary rules, the research also reflects upon the extent to which the secondary rules of international law - rules which determine how international law's primary obligations are identified, adjudicated and changed over time - accommodate the practice of judicial crossreferencing at the ICC. It is argued that judicial decisions have a strong role to play in the interpretation of the Rome Statute and the identification of international law beyond its provisions. Judicial decisions offer a source of inspiration and guidance for judges as they encounter gaps and ambiguities in the law. By interacting with other courts and tribunals, judges at the ICC can enhance the certainty and stability of international law and support its coherence as similar rules and principles come to be applied by a range of different judicial institutions. It is argued that greater caution should be exercised when cross-referencing in matters of fact due to the attendant risks for the rights of the accused in the international criminal context. The results of the empirical study show that judicial decisions have been referred to frequently in the early years of the Court's operation. In practice, judicial decisions have a far greater significance than they have been attributed in the ICC's secondary rules of international law. It is concluded that there is need for a more elaborate body of secondary rules of international law which accurately reflects the important role that judicial decisions have come to play within the international legal order. ii
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available