Butterfly Effect on Leash: The Calculated Use of ICTY’s Rationales as a Persuasive Authority in Strengthening the Criminal Dimension of the Positive Obligations under the ECHR

Abstract: Originally from chaos theory, “the butterfly effect” as a concept indicates the verisimilitude of how the most insignificant thing can have a significant ripple effect in a certain process. By analogy, courts are not immune to the “butterfly effect”. Due to the rapid proliferation of legal regimes and bodies, courts are confronted with unorthodox situations requiring that they interface one-another, thus as a response they have developed “a sixth sense” in being cognizant of each-others decision to help them manage this effect. This concept premised against the backdrop of transjudicial communication inspired my research question. However, the choice of focusing on the effects that ICTY’s jurisprudence as an international criminal law body has upon the ECtHR- a human rights body, was driven by the fact that this discussion is at an embryonic stage, as opposed to the other side of the interaction that has been analysed more extensively. An additional propeller was the fact that the ending of ICTY’s mandate struck as an optimal time to explore the reach of its legacy within the ambit of human rights law in Europe. The work conducted in this thesis aims to discern the collateral effects resulting from this communication and its inter-play with the procedural obligation of States to investigate and prosecute human rights abuses under Article 2, 3 and 7 of the ECHR. Using foreign rationales is a phenomenon that goes beyond the deliberation of a particular case. It reinforces certain patterns and reveals features of ECtHR’s modus operandi.