Pluralism in International Criminal Law
Leiden Journal of International Law, Vol. 25, Issue 4 (2012)
8 Pages Posted: 7 Oct 2012 Last revised: 12 Dec 2012
Date Written: 2012
Fragmentation of international law is a phenomenon that has been discussed ever since the ILC in 2000 decided to add to its programme of work the topic ‘Risks ensuing from the fragmentation of international law’. The proliferation of international criminal courts and tribunals sparked this debate on fragmentation. The development of a specialist regime of international law was perceived as posing a risk to the coherence and homogeneity of international law. Much of the anxiety over fragmentation stems from the collision between the ICJ and the ICTY over the ‘overall control-test’ in Tadic where the ICTY departed from settled ICJ law on attribution of liability and on qualification of the nature of an armed conflict (employing a standard of ‘effective control’). Twenty years since the establishment of the ICTY, the fragmentation/pluralism debate has entered a new phase. With a well-developed body of ad hoc Tribunal case law, an emerging body of case law at the ICC, hybrid systems like the Cambodia Tribunal, and more and more domestic prosecutions, pluralism has become an issue within the branch of ICL. While there are those who express concern over heterogeneity in ICL, recent scholarship acknowledges ICL’s pluralistic nature and, instead of striving for unity, calls for ways of managing pluralism.
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