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Judicial Creativity at the International Criminal Tribunals$
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Shane Darcy and Joseph Powderly

Print publication date: 2010

Print ISBN-13: 9780199591466

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199591466.001.0001

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The Ad Hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake

The Ad Hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake

(p.159) 7 The Ad Hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake
Judicial Creativity at the International Criminal Tribunals

Robert Cryer

Oxford University Press

This chapter looks at the judicial development of the doctrine of command responsibility before the ad hoc Tribunals. It demonstrates that despite command responsibility having a firm basis as a form of individual liability within the constituent statutes of both the Yugoslav and Rwanda Tribunals, its substantive development has nonetheless been dependent on creative judicial interpretation. In examining one particular limb of the doctrine, the chapter deconstructs the reasoning of majority and minority opinions in the Hadžihasanović and Oric cases showing not only the tensions between individual members of the bench but also the obvious reluctance to engage in what may be viewed as excessive judicial creativity.

Keywords:   international criminal law, Yugoslavia, Rwanda, individual criminal responsibility, command responsibility, judicial interpretation, customary international law

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