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A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals

  • NORA STAPPERT

Abstract

What role have international legal scholars played in the development of international criminal law? Building on recent studies of the citation practices of international courts, the article provides an empirical assessment of the use and functions of citations to scholarly writings in the judgments of international criminal courts and tribunals. Using a mixed-methods approach, the article combines: a) a quantitative analysis of judgments interpreting the law of war crimes across four international and hybrid courts; with b) qualitative interviews with judges and legal officers at the International Criminal Court (ICC), the ad hoc Tribunals, and the Special Court for Sierra Leone (SCSL). The article argues that scholarly writings have been strikingly visible in the judgments of international criminal courts and tribunals, and especially at the ICC, which entails significant implications for the functions of academic writings and the role of international legal scholars.

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Postdoctoral researcher, School of Global Studies, Gothenburg University [nora.stappert@gu.se]. I am grateful to Linnéa Gelot, Yuna C. Han, Johan Karlsson Schaffer, Zachary D. Kaufman, Leila Ullrich, Sara Usher, Claire Vergerio, and two anonymous reviewers for their comments on earlier drafts of this article, as well as to the participants of a panel on ‘The International Criminal Court’ at the Annual Convention of the International Studies Association in Atlanta on 18 March 2016 and the participants of an Early Career Workshop and the Socio-Legal Studies Discussion Group held at the Centre for Socio-Legal Studies, University of Oxford, on 20–21 June 2016 and 20 October 2016 respectively. All errors are mine.

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1 See, for example, Voeten, E., ‘Borrowing and Nonborrowing Among International Courts’, (2010) 39 Journal of Legal Studies 547; Lupu, Y. and Voeten, E., ‘Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights’, (2012) 42 British Journal of Political Science 413; Borda, A. Zammit, ‘Appraisal-Based and Flexible Approaches to External Precedent in International Criminal Law’, (2015) 28 LJIL 643.

2 Art. 38 (1)(d) of the Statute of the International Court of Justice. For a recent step in this direction, see Christensen, M.J., ‘Preaching, Practicing and Publishing International Criminal Justice: Academic Expertise and the Development of an International Field of Law’, (2017) 17 International Criminal Law Review 239, at 250–1.

3 Schachter, O., ‘The Invisible College of International Lawyers’ (1978) 72 Northwestern University Law Review 217.

4 See Tushnet, M., ‘Academics as Law-Makers?’, (2010) 29 University of Queensland Law Journal 19, at 19–20.

5 See Bantekas, I., ‘Reflections on Some Sources and Methods of International Criminal and Humanitarian Law’, (2006) 6 International Criminal Law Review 121, at 129.

6 See d’Aspremont, J., Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (2011), 210.

7 Hernández, G., ‘The Responsibility of the International Legal Academic: Situating the Grammarian within the ‘Invisible College’, in d’Aspremont, J. et al. (eds.), International Law as a Profession (2017), 160, at 174 and fn. 75.

8 See similarly Manley, S., ‘Referencing Patterns at the International Criminal Court’, (2016) 27 EJIL 191, at 214.

9 ICTR Judge, interview conducted on 15 December 2015, phone interview.

10 See Akande, D., ‘Sources of International Criminal Law’, in Cassese, A. (ed.), The Oxford Companion to International Criminal Justice (2009), 41, at 41, 43.

11 Thirlway, H., The Sources of International Law (2014), 8.

12 See Cryer, R. et al., An Introduction to International Criminal Law and Procedure (2014), 12.

13 ICTR Judge, interview conducted on 15 December 2015, phone interview.

14 ICTR Legal Officer, interview conducted on 5 December 2015, The Hague.

15 See 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.

16 Art. 21(3) of the 1998 Rome Statute of the International Criminal Court, 2187 UNTS 3.

17 See also V. Nerlich, ‘The Status of ICTY and ICTR Precedent in Proceedings Before the ICC’, in Stahn and Sluiter supra, note 15, at 305.

18 See Johnstone, I., ‘The Power of Interpretive Communities’, in Barnett, M. and Duvall, R. (eds.), Power in Global Governance (2005), 185; Hernández, supra note 7, at 164; Rajkovic, N., Aalberts, T. and Gammeltoft-Hansen, T., ‘Introduction: Legality, Interdisciplinarity and the Study of Practices’, in Rajkovic, N., Aalberts, T. and Gammeltoft-Hansen, T. (eds.), The Power of Legality: Practices of International Law and their Politics (2016), 1, at 17–21. See also Fish, S., Is There a Text in This Class? The Authority of Interpretive Communities (1980), 1416.

19 See d’Aspremont, J., Epistemic Forces in International Law: Foundational Doctrines and Argumentation (2015), 1521. See also Wenger, E., Communities of Practice: Learning, Meaning, and Identity (1998); Adler, E. and Pouliot, V., International Practices (2011); Adler, E., Communitarian International Relations: The Epistemic Foundations of International Relations (2005), 328.

20 Johnstone, supra note 18, at 192. See also ibid., at 190–1.

21 Adler, E. and Pouliot, V., ‘International Practices: Introduction and Framework’, in Adler, E. and Pouliot, V. (eds.), International Practices (2011), 3, at 7.

22 Leander, A. and Aalberts, T., ‘Introduction: The Co-Constitution of Legal Expertise and International Security’, (2013) 26 LJIL 783.

23 Koskenniemi, M., ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’, (2011) 26 International Relations 3, at 17. See also Venzke, I., How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012), 70–1.

24 Vasiliev, S., ‘Editorial: On Trajectories and Destinations of International Criminal Law Scholarship’, (2015) 28 LJIL 701, at 711.

25 See Tushnet, supra note 4, at 21 (with regard to the domestic context).

26 d’Aspremont, supra note 6, at 209.

27 See Tushnet, supra note 4, at 22.

28 See ibid.

29 Interview with ICTY Judge, 9 December 2015, The Hague.

30 For an in-depth discussion see Christensen, M.J., ‘Academics for International Criminal Justice: The Role of Legal Scholars in Creating and Sustaining a New Legal Field’, (2014) 14 iCourts Working Paper Series 1, at 18–25, available at jura.ku.dk/icourts/working-papers/.

31 See Terris, D., Romano, C. and Swigart, L., The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (2007), 20.

32 See Danner, A. and Voeten, E., ‘Who is Running the International Criminal Justice System?’, in Avant, D., Finnemore, M. and Sell, S. (eds.), Who Governs the Globe? (2010), 35 at 53–64.

33 Interview with ICTY Judge, 16 December 2015, The Hague.

34 Interviews with ICTY Legal Officer, 3 December 2015, The Hague; ICTR Legal Officer, 5 December 2015, The Hague; ICTR Judge, 15 December 2015, phone interview.

35 Interview with ICTY Judge, 18 December 2015, The Hague.

36 See, for example, Darcy, S., ‘The Reinvention of War Crimes by the International Criminal Tribunals’, in Darcy, S. and Powderly, J. (eds.), Judicial Creativity at the International Criminal Tribunals (2010), 106, at 107.

37 Following the request of some judges and legal officers, interviews were generally kept anonymous. To achieve a higher level of anonymization, references to specific interviews do not include a distinction between current or former judges and legal officers.

38 In addition, the Extraordinary Chambers in the Courts of Cambodia (ECCC) also delivered one trial judgment interpreting the law of war crimes during the relevant timeframe, see The Prosecutor v. Kaing Guek Eav alias Duch, Trial Judgment, Case No. 001/18-07-2007/ECCC/TC, 26 July 2010, at 400–69. As this judgment remained the ECCC’s only relevant judgment, however, the ECCC was excluded from this analysis.

39 As this coding aimed to capture the extent to which international criminal courts and tribunals engaged with different types of legal texts, it did not systematically distinguish between the ways in which these citations were used within the judgment. As a general observation, however, these references to a large extent served the purpose of supporting the interpretation of the law of war crimes proposed by the court. For example, 144 out of 154 citations to academic articles and monographs coded were used to build or support the argument of the court.

40 See Section 4.1 below.

41 McCrudden, C., ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’, (2000) 20 Oxford Journal of Legal Studies 499, at 502.

42 See Webb, P., International Judicial Integration and Fragmentation (2013), 193–4.

43 See especially Art. 59 of the Statute of the International Court of Justice.

44 See Manley, supra note 8, at 207–8. Note, however, that Manley used a slightly different coding approach, for example regarding indirect citations. See ibid., at 197–9.

45 Treaty commentaries and dictionaries were included within the more general category of academic writings following the reasoning outlined above, namely that the decision of whether a text qualifies as ‘academic’ can best be made based on its publication format. Treaty commentaries in particular are typically published by academic publishers. A notable exception are the ICRC commentaries on the Geneva Convention and Additional Protocols I and II, which were cited regularly within the judicial interpretation of the law of war crimes. However, even in this case, it should be added that an extensive update of the ICRC commentaries on the Geneva Conventions was co-published by Cambridge University Press in 2016. With regard to dictionaries, the two dictionaries cited were the Oxford English Dictionary, published by Oxford University Press (seven citations), and Black’s Law Dictionary, published by West Publishing (three citations). Within the judicial interpretation of the law of war crimes, both dictionaries were referred to as a way of gaining insights on the meaning and usage of specific terms. For a similar categorization and reasoning, see Manley, supra note 8, at 193 and fn. 11.

46 See Darcy, supra note 36, at 111.

47 See Manley, supra note 8, at 207–8.

48 See The Prosecutor v. Thomas Lubanga Dyilo, Trial Judgment, Case No. ICC-01//04/-01/06, Trial Chamber I, 14 March 2012; The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgment, Case No. ICC-01/05-01/08, Trial Chamber III, 21 March 2016.

49 Interview with ICC Judge, 26 November 2015, The Hague.

50 ICTR Legal Officer, 5 December 2015, The Hague. Similarly interview with ICTR Legal Officer, 26 January 2016, The Hague.

51 ICC Legal Officer, interview conducted on 1 December 2015, The Hague.

52 ICTR Judge, interview conducted on 15 December 2015, phone interview. Similarly interview with SCSL Judge, 6 February 2016, Kingston upon Thames.

53 Interview with ICTY Judge, 9 December 2015, The Hague. Similarly interview with ICTY Judge, 16 December 2015, The Hague.

54 ICC Legal Officer, interview conducted on 1 December 2015, The Hague.

55 ICC Legal Officer, interview conducted on 5 December 2015, The Hague.

56 ICTR Legal Officer, interview conducted on 5 December 2015, The Hague.

57 Interview with ICTY Legal Officer, 3 December 2015, The Hague.

58 Interview with ICC Judge, 26 November 2015, The Hague.

59 Interviews with ICTY Judge, 18 December 2015, The Hague; ICTR Judge, 25 November 2015, phone interview.

60 Interviews with ICTY Judge, 9 December 2015, The Hague; ICTY Judge, 16 December 2015, The Hague.

61 ICTY Judge, interview conducted on 16 December 2015, The Hague.

62 For example, interviews with ICC Legal Officer, 27 November 2015, The Hague; ICTY Legal Officer, 3 December 2015, The Hague.

63 Interviews with ICTY Judge, 16 December 2015, The Hague; ICTR Legal Officer, 26 January 2016, The Hague.

64 ICTR Legal Officer, interview conducted on 26 January 2016, The Hague.

65 Interviews with ICTY Judge, 9 December 2015, The Hague; ICTR Judge, 25 November 2015, phone interview; ICTR Legal Officer, 5 December 2015, The Hague; ICTR Judge, 15 December 2015, phone interview; ICTY Judge, 16 December 2015, The Hague; ICTY Judge, 18 December 2015, The Hague; ICTR Legal Officer, 26 January 2016, The Hague; SCSL Judge, 6 February 2016, Kingston upon Thames.

66 Interviews with ICTR Legal Officer, 5 December 2015, The Hague; ICTR Legal Officer, 26 January 2016, The Hague; ICC Legal Officer, 1 December 2015, The Hague.

67 ICTR Legal Officer, interview conducted on 5 December 2015, The Hague.

68 Interview with ICC Judge, 26 November 2015, The Hague.

69 ICTR Legal Officer, interview conducted on 5 December 2015, The Hague.

70 Interview with ICTY Judge, 9 December 2015, The Hague.

71 Ibid.; interview with ICTY Judge, 16 December 2015, The Hague. Similarly interviews with ICC Legal Officer, 1 December 2015, The Hague; ICTY Legal Officer, 3 December 2015, The Hague; ICTR Legal Officer, 5 December 2015, The Hague.

72 Mégret, F., ‘International Criminal Justice: A Critical Research Agenda’, in Schwöbel, C. (ed.), Critical Approaches to International Criminal Law: An Introduction (2014), 17, at 18. From a slightly different perspective see also von Bernstorff, J., ‘International Legal Scholarship as a Cooling Medium in International Law and Politics’, (2015) 25 EJIL 977, at 988.

73 See, for example, Henry, N., ‘The Fixation on Wartime Rape: Feminist Critique and International Criminal Law’, (2013) 23 Social and Legal Studies 93; Clarke, K., ‘Rethinking Africa Though its Exclusion: The Politics of Naming Criminal Responsibility’, (2010) 83 Anthropological Quarterly 625; Mégret, F., ‘The Anxieties of International Criminal Justice’, (2016) 29 LJIL 197; Schwöbel, C. (ed.), Critical Approaches to International Criminal Law: An Introduction (2014).

74 van Sliedregt, E., ‘Editorial: International Criminal Law: Over-Studied and Underachieving?’, (2016) 29 LJIL 1, at 3.

76 See Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2008); Lee, R. (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999). See also Dörmann, K. (ed.), Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary (2002).

77 Interview with ICTY Legal Officer, 3 December 2015, The Hague.

78 See Vasiliev, supra note 24, at 705.

79 Interview with ICTY Judge, 9 December 2015, The Hague.

80 See, for example, Darcy, S. and Powderly, J. (eds.), Judicial Creativity at the International Criminal Tribunals (2010). See also more generally Von Bogdandy, A. and Venzke, I., International Judicial Lawmaking (2012).

81 See Holtermann, J. v. H. and Rask Madsen, M., ‘European New Legal Realism and International Law: How to Make International Law Intelligible’, (2015) 28 LJIL 211.

82 For a recent example, see Christensen, supra note 2, at 249–51.

83 ICTR Judge, interview conducted on 15 December 2015, phone interview.

84 ICTY Legal Officer, interview conducted on 3 December 2015, The Hague.

85 See Alter, K. and Helfer, L., ‘Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice’, (2010) 64 International Organization 563, at 565, 584–6. Relatedly, see also, for example, Cohen, A., ‘Transnational Statecraft: Legal Entrepreneurs, the European Field of Power and the Genesis of the European Constitution’, in Petersen, H. et al. (eds.), Paradoxes of European Legal Integration (2008), 111.

86 From a historical perspective see similarly Peters, A., ‘Realizing Utopia as a Scholarly Endeavour’, (2013) 24 LJIL 533, at 537.

* Postdoctoral researcher, School of Global Studies, Gothenburg University []. I am grateful to Linnéa Gelot, Yuna C. Han, Johan Karlsson Schaffer, Zachary D. Kaufman, Leila Ullrich, Sara Usher, Claire Vergerio, and two anonymous reviewers for their comments on earlier drafts of this article, as well as to the participants of a panel on ‘The International Criminal Court’ at the Annual Convention of the International Studies Association in Atlanta on 18 March 2016 and the participants of an Early Career Workshop and the Socio-Legal Studies Discussion Group held at the Centre for Socio-Legal Studies, University of Oxford, on 20–21 June 2016 and 20 October 2016 respectively. All errors are mine.

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