Stare decisis in the ICTY Appeal System? Successor Responsibility in the Hadžihasanović Case

Abstract

Although international criminal law is becoming increasingly harmonized, it is inevitable that differently composed panels at the Appeals Chambers of the International Criminal Tribunal for the former Yugoslavia (ICTY) (and other international courts) will disagree with each other. The author examines the institutional and jurisprudential reasons for an appeals chamber to respect or revisit the prior decisions of previous appeals chambers which might be composed of an overlapping set of judges. Although the common law doctrine of stare decisis does not apply in a formal manner at the ICTY, Appeals Chambers are still reluctant to overturn prior doctrinal pronouncements due to concerns of stability in the law — precisely the rationale for stare decisis. This creates the wholly unsatisfactory possibility that three judges on the Appeals Chamber could decide the law even though a majority of the Appeals Chamber judges at the Tribunal might disagree with their interpretation of the law. The author discusses this paradoxical situation by examining, as a case study, the ICTY judgments on successor responsibility in command responsibility cases.