Beyond Footnotes: Comparing Case-Based Reasoning at The European Court of Human Rights and the International Criminal Tribunal for the Former Yugoslavia

The potentially binding effect of precedents, and the use of past decisions in legal reasoning more generally, is well-researched with regard to domestic courts. Considerably less is known, however, on how international courts rely on past cases. After all, while the international legal order is institutionally fragmented, no binding doctrine of precedent exists at the international level. Nevertheless, international courts famously rely on their own – and often each other’s – past cases. With the methodological advances made in recent years in the wake of an increasing digitalization, a growing number of studies has used network analysis to research such case citations in the judgments of international courts. However, these studies exhibit a core weakness: because they typically use a case-to-case network, they cannot provide insights into the judgment’s argumentative context within which the citation is used. In this paper, we show that building a paragraph-to-paragraph network instead can advance our understanding of case-based reasoning at international courts considerably. In particular, this novel methodological approach allows us to analyze the exact content that links the citing and cited judgments, and thus the reasoning that develops through strings of judgments over time. To demonstrate the added value of this approach, we compare the European Court of Human Rights’ case law on the prohibition of discrimination (art. 14 ECHR) with the International Criminal Tribunal for the former Yugoslavia’s jurisprudence on the law of war crimes (art. 3 of the ICTY Statute). Such a comparison of the use of previous case law across two different international courts and legal regimes shows the wide applicability of our approach and its promise for comparative research. The paper therefore not only contributes to methodological debates on case law citation analysis, but also to empirical research on the role of case-based reasoning at international courts.