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Citation Practices of the International Criminal Court: The Situation in Darfur, Sudan

  • STEWART MANLEY
Abstract

This article analyzes the 9,203 citations made by the International Criminal Court (ICC) in its cases involving Sudan. To date, few empirical studies have assessed the citation practices of courts and even fewer of international courts. The data is rich. It reveals, for instance, the changing nature of the Court's citations over time, the disproportionate distribution of citations among chambers, the potential impact of party pleadings on citations, and the allocation of citations to previous rulings of the Court, other international tribunals and domestic courts. The article also explores possible explanations for the patterns that emerge and assesses what the patterns may mean for the Court. Unlike most other citation analyses, the study provides the additional benefit of having categorized the citations based on their function, distinguishing for instance between citations that the Court uses to help it decide legal and factual issues, and those it does not.

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1 Walsh, D.J., ‘On the Meaning and Pattern of Legal Citations: Evidence from State Wrongful Discharge Precedent Cases’, (1997) 31 Law & Society Review 337 , at 338.

2 W. Alschner and D. Charlotin, ‘The Growing Complexity of the International Court of Justice's Self-Citation Network: Institutional Achievement or Access-to-Justice Concern?’, (2016) University of Cambridge Legal Studies Research Paper Series, Paper No. 58/2016, at 3.

3 Walsh, supra note 1, at 339–40.

4 R. Black, ‘Essays on the Role of Law in Judicial Decision Making’, (2009) All Theses and Dissertations (ETDs), Paper 37, at 44.

5 Sources that judges read but choose not to cite may also impact the development of law, but counting citations is an established, and a much clearer and more reliable, method of determining impact. Kaye, J.S., ‘One Judge's View of Academic Law Review Writing’, (1989) 39 Journal of Legal Education 313, at 313 fn 2.

6 Black, supra note 4, at 45.

7 See, e.g., Manz, W., ‘The Citation Practices of the New York Court of Appeals, 1850-1993’, (1995) 43 Buffalo L. Rev. 121, at 121.

8 S. Sengupta, ‘Omar al-Bashir Case Shows International Criminal Court's Limitations’, N.Y. Times, 15 June 2015, at A9 (noting the Court's lack of the power to arrest and the lack of country co-operation).

9 Despite a great deal of digging, two ICC judgments could not be located. The first, ICC-02/08-110, appears to be a mistaken citation because its case number 02/08 does not exist and the second, ICC-01/04-01/06-796-Conf-tEN, appears to be a confidential document that has not yet been made public.

10 This amount was calculated by manually counting all of the records, available at www.icc-cpi.int, on 11 October 2015.

11 See The Prosecutor v. Abdallah Banda Abakaer Nourain, Corrigendum of the ‘Decision on the Confirmation of Charges’, ICC-02/05-03/09-121-Corr-Red, Pre-Trial Chamber I, 13 March 2011.

12 Sisk, G., ‘Book Review: The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making’, (2008) 93 Cornell L. Rev. 873, at 877.

13 Hall, M. and Wright, R., ‘Systematic Content Analysis of Judicial Opinions’, (2008) 96 California L. Rev. 63, at 64.

14 R. Posner describes the reasons for citing as: (1) to provide information that allows the reader to verify the accuracy of statements or incorporate a body of information by reference (‘informational’), (2) to acknowledge that the idea expressed was first the author's own or that of others (‘priority’), (3) to identify works with which the author disagrees (‘negative citations’), (4) to provide an authoritative basis for the idea (‘authority’), or (5) to enhance credibility by citing a well-regarded work (‘celebratory’). Posner, R., ‘An Economic Analysis of the Use of Citations in the Law’, (2000) 2 American Law and Economics Review 381, at 384–6.

15 Johnson, C.A., ‘Follow-up Citations in the U.S. Supreme Court’, (1986) 39 Western Political Quarterly 538, at 543; Hall and Wright, supra note 13, at 93.

16 I. Greene et al., Final Appeal: Decision-Making in Canadian Courts of Appeal (1998), 139.

17 Formerly The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus.

18 The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, Pre-Trial Chamber I, 4 March 2009.

19 The text and figures refer to ‘Pre-Trial Chambers’ (plural) and ‘Trial Chamber’ (singular) because both Pre-Trial Chambers I and II, but only Trial Chamber IV, were involved in the Sudan cases.

20 Alschner and Charlotin, supra note 2, at 3.

21 The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Decision on the Defence Request for a Temporary Stay of Proceedings, ICC-02/05-03/09-410, Trial Chamber IV, 26 October 2012.

22 The Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest, supra note 18.

23 The Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest, supra note 18, para. 201.

24 The Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest, supra note 18, Separate and Partly Dissenting Opinion of Judge Anita Ušacka, para. 3.

25 The Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the Appeal of the Prosecutor against the ‘Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, ICC-02/05-01/09-73, Appeals Chamber, 3 February 2010.

26 A similarly higher rate of citations to academic scholarship in individual opinions than in majority opinions has been observed at the ICJ. Stahn, C. and De Brabandere, E., ‘The Future of International Legal Scholarship: Some Thoughts on “Practice”, “Growth”, and “Dissemination”’, (2013) 27 (1) LJIL 1, at 2, fn 11.

27 Studies of domestic court citations are ambivalent; some have found higher citation rates in dissents while others have found lower. Smyth, R., ‘What Do Judges Cite? An Empirical Study of the “Authority of Authority” in the Supreme Court of Victoria’, (1999) 25 Monash L. Rev. 29, at 42 (higher); Merryman, J., ‘Toward a Theory of Citations: An Empirical Study of the Citation Practice of the California Supreme Court in 1950, 1960 and 1970’, (1977) 50 Southern California L. Rev. 381, at 392–4 (lower).

28 The Prosecutor v. Banda and Jerbo, Decision on Stay of Proceedings, supra note 21, paras. 89–150.

29 The Prosecutor v. Banda and Jerbo, Decision on Stay of Proceedings, supra note 21, Concurring Separate Opinion of Judge Eboi-Osuji (‘Concurring Separate Opinion of Judge Eboi-Osuji’), para. 31.

30 Concurring Separate Opinion of Judge Eboi-Osuji, supra note 29, para. 14.

31 Tate, C. and Sittiwong, P., ‘Decision Making in the Canadian Supreme Court: Extending the Personal Attributes Model Across Nations’, (1989) 51 The Journal of Politics 900, at 913–14; Grossman, J., ‘Social Backgrounds and Judicial Decision-Making’, (1966) 79 Harv. L. Rev. 1551, at 1552.

32 Curriculum vitae of Chile Eboi-Osuji, available at asp.icc-cpi.int/iccdocs/asp_docs/EJ2009/ICC-ASP-EJ2009-NG-CV-ENG.pdf. Eboe-Osuji also received a Ph.D. in Law from the University of Amsterdam; no Dutch cases were cited.

33 Concurring Separate Opinion of Judge Eboi-Osuji, supra note 29, para. 3.

34 Rife, M. Courant, ‘Making Legal Knowledge in Global Digital Environments: The Judicial Opinion as Remix’, in Starke-Meyerring, D. et al. (eds.), Writing in Knowledge Societies (2011), 139 at 150.

35 Richmond, D.R., ‘Unoriginal Sin: The Problem of Judicial Plagiarism’, (2013) 45 Arizona State Law Journal 1077, at 1079.

36 Greene et al., supra note 16, at 158.

37 Bitti, G., ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC’, in Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court (2009), 285 at 296.

38 The numbers of citations in Figure 10 are lower than in Figure 8 because of the omission of concurring and dissenting opinions.

39 These figures are from the ICC's Legal Tools site, available at www.legal-tools.org/en/search/. The number of records in the ICC database is not stable because additional documents appear to be added from time to time. On 13 June 2017, there were 195 prosecution and 142 defence records available, making the numbers more comparable.

40 The Prosecutor v. Thomas Lubanga Dyilo, Decision on the Admissibility of Four Documents, ICC-01/04-01/06-1399, Trial Chamber I, 16 June 2008, at 15, para. 24.

41 There were an additional 16 joint prosecution and defence records and nine factually persuasive citations to them.

42 M. Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (2013), at 210.

43 Ibid., at 211.

44 Karnavas, M.G., ‘Gathering Evidence in International Criminal Trials – The View of the Defence Lawyer’, in Bohlander, M. (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (2007), 75 at 125.

45 The Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, Pre-Trial Chamber I, 8 February 2010, at 17.

46 Ibid., at 11.

47 Ibid., at 8.

48 Landes, W., Lessig, L. and Solimine, M., ‘Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges’, (1998) 27 The Journal of Legal Studies 271 ; see also Easterbrook, F., ‘The Most Insignificant Justice: Further Evidence’, (1983) 50 University of Chicago L. Rev. 481 ; Klein, D. and Morrisroe, D., ‘The Prestige and Influence of Individual Judges on the U.S. Courts of Appeal’, (1999) 28 The Journal of Legal Studies 371 . For studies outside the US see, e.g., Smith, R. and Bhattacharya, M., ‘What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia’, (2003) 5 American Law and Economics Review 233 ; McCormick, P., ‘Judicial Citation, The Supreme Court of Canada and the Lower Courts’, (1996) 34 Alberta L. Rev. 870 .

49 Posner, R., ‘Is the Ninth Circuit Too Large? A Statistical Study of Judicial Quality’, (2000) 29 The Journal of Legal Studies 711 .

50 Schauer, F. and Wise, V., ‘Nonlegal Information and the Delegalization of Law’, (2000) 29 The Journal of Legal Studies 495 .

51 Manz, W., ‘Cardozo's Use of Authority: An Empirical Study’, (1995) 32 California Western L. Rev. 31 .

52 Zaring, D., ‘The Use of Foreign Decisions by Federal Courts: An Empirical Analysis’, (2006) 3 J. Empirical Legal Stud. 297 .

53 K. Llewellyn, The Common Law Tradition: Deciding Appeals (1960), 102–3; Spriggs II, J. and Hansford, T., ‘Measuring Legal Change: The Reliability and Validity of Shepard's Citations’, (2000) 53 Political Research Quarterly 327 .

54 Fowler, J. et al., ‘Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court’, (2007) 15 Pol. Analysis 324 .

55 Lupu, Y. and Voeten, E., ‘Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights’, (2010) 42 British J. Pol. Sci. 413 .

56 Kaul, H., ‘Construction Site for More Justice: The International Criminal Court after Two Years’, (2005) 99 Am. J. Int'l L. 370, at 370, 376.

57 See, e.g., ibid., at 379; Jorda, C., ‘Reflections on the First Years of the International Criminal Court’, (2007) 36 Hofstra L. Rev . 240, at 253.

* Lecturer, Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia [].

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