
Contents
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I Introduction I Introduction
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II State-to-State Silence: The ICTY’s Interlocutory Decision on Jurisdiction in Tadić II State-to-State Silence: The ICTY’s Interlocutory Decision on Jurisdiction in Tadić
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III State-to-Courts Silence: The STL’s decisions in the Ayyash et al. case and in the matter of El Sayed III State-to-Courts Silence: The STL’s decisions in the Ayyash et al. case and in the matter of El Sayed
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IV The Revival of State-to-Courts Silence: The Al Bashir Saga at the ICC IV The Revival of State-to-Courts Silence: The Al Bashir Saga at the ICC
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V State-to-State Silence in Institutional Settings: Palestine’s Status under the Rome Statute and the ICC’s Assembly of States Parties V State-to-State Silence in Institutional Settings: Palestine’s Status under the Rome Statute and the ICC’s Assembly of States Parties
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VI Conclusion VI Conclusion
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6 State Silence and International Criminal Law
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Published:April 2025
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Abstract
Reliance on reactive State silence in international criminal law is not self-evident but has pervaded the field, bolstering its development after the Nuremberg and Tokyo Trials and filling important legal gaps. Analysis of four landmark case studies on the invocation of reactive State silence in the field yields three key conclusions. First, reliance on reactive silence has been pivotal to the development of international criminal law, even if, on occasion, it has substituted for rigorous methods of custom identification and legal interpretation. Second, reactive silence has been deemed relevant not only in the context of ‘State-to-State’ relationships but also on a ‘State-to-courts’ basis, as well as in institutional settings, such as the International Criminal Court’s Assembly of States Parties. Third, the thresholds for legally relevant silence remain relevant but have been shaped by international criminal law’s collective aims and erga omnes nature.
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