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The Notion of ‘Persuasive Value’ of External Precedent in International Criminal Law

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This article examines the notion of ‘persuasive value’ of external precedent in the context of international criminal law. It finds that, in a number of cases, individual judges have appeared to assess the relevance and persuasive value of the same judicial decision differently and suggests that an assessment of this notion may be contingent on the specific circumstances of the case, including the individual approaches of judges. The article proceeds to flesh out some extrinsic and intrinsic elements of this notion. With respect to the former, these include: (1) the specific attitudes of individual judges; (2) the authority of the forum, including the generalist or specialist character of the court and the potential role of judicial networks; (3) the effect of successive citations; and (4) the potentially uneven playing field of citations. With respect to the latter, these may include: (1) the nature of the law being applied and the consonance of the findings with the applicable law; and (2) the quality of the reasoning. While there potentially may be a link between the quality of reasoning of a given decision and an assessment of its persuasive value, this may depend on the circumstances of the case and, in particular, on the approaches of the individual judges, who may accord differing weight to the elements involved in the equation. Thus, the article concludes that, ultimately, any assessment of the notion of persuasive value may have to remain contingent and incomplete.

Affiliations: 1: Senior Lecturer, School of Law, Anglia Ruskin University, UK; Fellow of the Honourable Society of the Middle Temple*, aldo.zammitborda@anglia.ac.uk

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/content/journals/10.1163/15718107-08401001
2015-02-20
2018-09-26

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