1. International Legal Structure

2. Prosecutor v Delalić and others, Trial Chamber Judgment of 16 November 1998
All accused acted in their capacity as members of the Bosnian armed forces
Violations of the laws and customs of war are punishable under Art. 3 of ICTY Statute
The laws and customs of war prohibit torture without defining the concept
Is rape torture?
The Chamber considered definitions in UNGA res (1975); Art.1 of CAT; and Art. 2 of IACHR
The Chamber inferred:
(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical,
(ii) which is inflicted intentionally,
(iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind,
(iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.

3. The concept of a legal system
Law as a conduct
Law as a legal system
Presupposes a structure of some sort
The idea of a structure is a necessary element in any process of understanding
Examples:
”organisation”, ”organization”, ”organisasion”
”The purposes of this organization is to maintain international peace”.

4. Structure in international law
Understanding of international law occurs within an institutional framework (=international legal discourse)
Understanding is subject to constraints
The importance of rules, principles and informal conventions
Structure as coherence

5. What is legal coherence?
Coherence as logical consistency
Soering Case
Art. 3 of ECHR:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Art. 2 of ECHR:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

6. Coherence and fragmentation
In international law, fragmentation may be seen as the opposite of coherence
The making of international law
The specialization and diversification of international law
Different concepts, languages, goals, principles, values, ….
ICTY in Kunarac and others (2001)
Accused acted as soldiers serving in the VRS
Participated in abusive practices, including rape
The Chamber would have to be mindful of the specificity of IHL, the definition of an offence being largely a function of the environment in which it develops (para. 469).

7. Summing up
In one sense, international law can be conceived of as a system
Thinking of international law as a system presupposes the idea of the existence of a structure
International legal discourse builds on the idea of a structure of a particular kind – coherence
Fragmentation can be conceived of as the opposite of coherence
Causes of fragmentation
The making of international law is a decentralized process
The specialization and diversification of international law