The Use of Precedent as Subsidiary Means and Sources of International Criminal Law

This article examines the use of precedent in the judgments of international criminal courts and tribunals. It finds that although such courts and tribunals have resorted to external judicial decisions as subsidiary means for the determination of rules of law, in some cases, their use of external judicial decisions has been equivocal. Moreover, in two notable cases, these courts and tribunals have unequivocally relied on precedent as a direct source of law. In this context, the article offers some reflections on whether courts may serve as sources for the creation of rules of law. It finds that there does not seem to be any legal basis for the use of external judicial decisions as direct sources of rules of international law. There is, moreover, a danger that regarding external judicial decisions as direct sources may encourage a lax, uncritical reliance on such decisions.