An analysis of policy-oriented jurisprudence at the International Criminal Tribunal for the former Yugoslavia (ICTY): A lemniscate of natural law, legal positivism and two liberalisms?

• Citation: (2022) African Yearbook on International Humanitarian Law 20
• DOI: https://doi.org/10.47348/AYIH/2022/a2
• Published date: 28 May 2024
• Pages: 20-34
• Author: Nell, A.
• Date: 28 May 2024

20

An analysis of policy-oriented

jurisprudence at the International

Criminal Tribunal for the former

Yugoslavia (ICTY): A lemniscate of

natural law, legal positivism and two

liberalisms?

Albert Nell*

Abstract

Policy-oriented jurispr udence was used to substantively suppor t certain

arguments rendere d by the International Crim inal Tribunal for the

former Yugoslavia (ICTY ) in two cases, namely those aga inst Dražen

Erdemović a nd Pavle Strugar. Based on its li mited use, the policy-oriented

approach was clearly not a popular s ource of justication for argu ments

at the ICTY. However, its inclusion in struct ures of argument reveals at

least some support for it. In the process of sug gesting possible reasons

why this particular theoretical approach was utilised in the justication

of argument, this a rticle aims to briey discuss t he broader philosophical

tensions visible in the relia nce on policy-oriented jurispr udence at the

ICTY, viz, natura l law/legal positivism, on the one hand, and the ‘two

liberalisms’, identied by Darr yl Robinson as inherent to internat ional

crimina l law (ICL), on the other hand. Given that policy-oriented

jurisprudence’s inclusion in ICL judg ments makes its future invocation

in ICL literature and judgme nts possible, the purpose of delvin g into the

broader theoretical pa radigms involved is important for the emergence of

a coherent jur isprudence.

Keywor ds: International Criminal Tribunal for the former Yugoslavia

(ICTY), policy-or iented jurisprudence, natural law and legal positivism,

liberalism, judicial argumentation, Erdemović, Strugar.

1 INTRODUCTION

Policy-oriented jurisprudence argues that international law is a

complex process of decision-making aimed at secu ring the common

* Lecture r, Faculty of Law, University of the Free State, South Afr ica. This article

develops certai n ideas raised in my PhD thesis. Email : NellA@ufs.ac.za.

https://doi.org/10.47348/AYIH/2022/a2

(2022) African Yearbook on International Humanitarian Law 20

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