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Domestic Courts' Contribution to the Development of International Criminal Law: Some Reflections

  • Harmen van der Wilt (a1)

This article seeks to give an impression of the way in which domestic courts are contributing to the development of international criminal law. Have they predominantly followed the case law of international tribunals and, by doing so, have they corroborated those standards? Or have they rather ventured in new directions and, as a consequence, been involved in a creative process, establishing and refining international criminal law?

Four different approaches, reflecting the position of domestic courts vis à vis the standards and case law of international criminal tribunals, are identified and analysed: strict compliance, antagonism, judicial construction, and ‘casuistry’. The author concludes that the most important contribution of domestic courts to the development of international criminal law consists of further interpretation of open-ended norms. While this is obviously inherent in the process of ‘judicial creativity’, the feature is reinforced by the non-hierarchical nature of international criminal law. As a consequence, international criminal tribunals lack the power and authority to impose their interpretation of international criminal law on domestic courts. The risk of fragmentation is mitigated, however, by the nature of criminal law, which requires strict and clear standards, and by the increasing interactions between courts at different levels.

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On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2, 23

André Nollkaemper , National Courts and the International Rule of Law (Oxford University Press2011)

Jules Deschênes , ‘Toward International Criminal Justice’ (1994) 5 Criminal Law Forum 249, 265–66

Joseph Rikhof , ‘Hate Speech and International Criminal Law: The Mugesera Decision by the Supreme Court of Canada’ (2005) 3 Journal of International Criminal Justice 1121, 1126–27

Matthew Gillett and Matthias Schuster , ‘Fast-Track Justice: The Special Tribunal for Lebanon Defines Terrorism’ (2011) 9 Journal of International Criminal Justice 989, 1005–14

Larissa van den Herik , ‘A Quest for Jurisdiction and an Appropriate Definition of Crime: Mpambara before the Dutch Courts’ (2009) 7 Journal of International Criminal Justice

Yuval Shany , ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law

Theodor Meron , ‘War Crimes Law Comes of Age’ (1998) 92 The American Journal of International Law 462, 468

Armin von Bogdandy , ‘Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law’ (2008) 6 International Journal of Constitutional Law 397, 406

Harmen van der Wilt , ‘National Law: A Small but Neat Utensil in the Toolbox of International Criminal Tribunals’ (2010) 10 International Criminal Law Review 209

Laurence R Helfer and Anne-Marie Slaughter , ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale Law Journal 273, 372

Anne-Marie Slaughter , ‘The Real New World Order’ (1997) 76 Foreign Affairs

Harmen van der Wilt , ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’ (2008) 8 International Criminal Law Review 229

Judith Hippler Bello and Irwin Cotler , ‘International Decisions: Regina v. Finta’ (1996) 90 The American Journal of International Law 460, 474

Gerhard Werle , Principles of International Criminal Law (2nd edn, TMC Asser Press2009)

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
  • URL: /core/journals/israel-law-review
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