Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity 9781509948949, 9781509948970, 9781509948963

Table of contents :
Contents
Abbreviations
1. Introduction
I. The 'Judicialisation Turn' in International Law
II. Arguments
III. Legal Interpretation as a Form of Argumentation
IV. Scope and Limits of the Book
V. Book Outline
2. Courts and the Argumentation of International Law
I. A Legal Realist Perspective on Courts
II. Discretion in Legal Interpretation
III. Courts' Argumentation: Between Logic and Persuasion
IV. Governing Judicial Decisions
3. Rethinking Judicial Decisions beyond Formal Architectures
I. Genesis and Historical Development of International Criminal Law: A Plurality of Courts
II. General Effects of Regime Development
III. The Seeds of Universalism
IV. National Courts and International Crimes
V. Approaching Judicial Decisions in National Adjudication
VI. Courts Citing Judicial Decisions: An Interim Evaluation
4. The Entrapment of Judicial Decisions
I. Citing Judicial Decisions as a Structuring Device: Incrementalism versus Revisionism
II. The Road Towards the Stabilisation of Interpretive Outcomes
III. Deferring to the International Acquis: The Role of National Courts in Interpreting 'Protected Group'
IV. From Stabilisation to Perfect Alignment of Interpretive Outcomes: The Case of 'Armed Conflict'
V. Interim Conclusions
5. Rewriting the Meaning of International Law
I. Social Acceptance as a Validator of Correctness: Any Room for Change?
II. Departing from the 'Established Jurisprudence': The Case of Genocide
III. Revisiting the Concept of 'Unlawful Combatants'
IV. Managing the Flow of Arguments through Epistemic Superiority
V. Judicial Decisions as 'Persuasive Authority'
VI. Authoritative Statements as Knowledge on International Criminal Law
6. Rethinking the Judicialisation Era
I. Structural Changes in International Legal Argumentation
II. Judicial Decisions as Epistemic Tools in the Argumentation of International Law
III. Reassessing the Role of Judicial Decisions in International Law: A Retrospective
IV. The Way Forward: A Prospective
Bibliography
Index

Citation preview

JUDICIAL DECISIONS IN INTERNATIONAL LAW ARGUMENTATION This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts’ resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the ‘judicialisation turn’ on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions. Volume 89 in the series Studies in International Law

Studies in International Law Recent titles in this series Prosecutorial Discretion at the International Criminal Court Anni Pues Judicial Deference in International Adjudication: A Comparative Analysis Johannes Hendrik Fahner Human Rights Commitments of Islamic States: Sharia, Treaties and Consensus Paul McDonough Intervention in Civil Wars: Effectiveness, Legitimacy, and Human Rights Chiara Redaelli General Principles as a Source of International Law: Art 38(1)(c) of the Statute of the International Court of Justice Imogen Saunders The Law of Humanity Project: A Story of International Law Reform and State-making Ukri Soirila Extraterritoriality and Climate Change Jurisdiction: Exploring EU Climate Protection under International Law Natalie L Dobson International Law and the War with Islamic State: Challenges for Jus ad Bellum and Jus in Bello Saeed Bagheri Private Actors as Participants in International Law: A Critical Analysis of Membership under the Law of the Sea Armando Rocha Truth and Transitional Justice: Localising the International Legal Framework in Muslim Majority Legal Systems Alice Panepinto State Responsibility for Non-State Actors: Past, Present and Prospects for the Future Richard Mackenzie-Gray Scott International Agreements between Non-State Actors as a Source of International Law Melissa Loja Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity Letizia Lo Giacco For a complete list of titles in this series see www.bloomsbury.com/uk/series/studies-in-international-law/

Judicial Decisions in International Law Argumentation Between Entrapment and Creativity

Letizia Lo Giacco

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © Letizia Lo Giacco, 2022 Letizia Lo Giacco has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022941357 ISBN: HB: 978-1-50994-894-9 ePDF: 978-1-50994-896-3 ePub: 978-1-50994-895-6 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

In memory of my father (1936–2021)

vi

Contents Abbreviations���������������������������������������������������������������������������������������������� ix 1. Introduction��������������������������������������������������������������������������������������������1 I. The ‘Judicialisation Turn’ in International Law��������������������������������1 II. Arguments��������������������������������������������������������������������������������������5 III. Legal Interpretation as a Form of Argumentation�����������������������������8 IV. Scope and Limits of the Book��������������������������������������������������������12 V. Book Outline���������������������������������������������������������������������������������21 2. Courts and the Argumentation of International Law������������������������������23 I. A Legal Realist Perspective on Courts��������������������������������������������23 II. Discretion in Legal Interpretation��������������������������������������������������28 A. Rule-Bound Justification��������������������������������������������������������31 B. Choosing between Competing Courses of Action�������������������36 III. Courts’ Argumentation: Between Logic and Persuasion������������������41 IV. Governing Judicial Decisions���������������������������������������������������������47 A. Following Judicial Decisions: An Internal Perspective��������������54 B. Judicial Decisions as a Sufficient Basis of Justification in the Practice of International Criminal Law?������������������������57 3. Rethinking Judicial Decisions beyond Formal Architectures�������������������64 I. Genesis and Historical Development of International Criminal Law: A Plurality of Courts����������������������������������������������64 II. General Effects of Regime Development�����������������������������������������70 III. The Seeds of Universalism�������������������������������������������������������������74 IV. National Courts and International Crimes�������������������������������������76 V. Approaching Judicial Decisions in National Adjudication��������������81 VI. Courts Citing Judicial Decisions: An Interim Evaluation����������������84 4. The Entrapment of Judicial Decisions����������������������������������������������������92 I. Citing Judicial Decisions as a Structuring Device: Incrementalism versus Revisionism�������������������������������������������������������������������������92 II. The Road Towards the Stabilisation of Interpretive Outcomes��������95 A. Interpreting ‘Protected Group’ in Genocide Cases�������������������96 B. Discretion in the Interpretive Practices of ‘Protected Group’����98 C. Accepting Interpretive Outcomes: The Import of the ICC Statute�������������������������������������������������������������������������� 111 D. Interpretation as an Incremental Process of Content Formation���������������������������������������������������������������������������� 116

viii  Contents III. Deferring to the International Acquis: The Role of National Courts in Interpreting ‘Protected Group’�������������������������������������� 117 IV. From Stabilisation to Perfect Alignment of Interpretive Outcomes: The Case of ‘Armed Conflict’������������������������������������� 128 A. The Concept of Armed Conflict in International Jurisdictions������������������������������������������������������������������������� 130 B. National Courts between Entrapment and Revisionism��������� 135 V. Interim Conclusions�������������������������������������������������������������������� 139 5. Rewriting the Meaning of International Law��������������������������������������� 141 I. Social Acceptance as a Validator of Correctness: Any Room for Change?��������������������������������������������������������������������������������� 141 II. Departing from the ‘Established Jurisprudence’: The Case of Genocide�������������������������������������������������������������������������������� 148 III. Revisiting the Concept of ‘Unlawful Combatants’������������������������ 154 IV. Managing the Flow of Arguments through Epistemic Superiority���������������������������������������������������������������������������������� 161 V. Judicial Decisions as ‘Persuasive Authority’���������������������������������� 168 VI. Authoritative Statements as Knowledge on International Criminal Law������������������������������������������������������������������������������ 173 6. Rethinking the Judicialisation Era�������������������������������������������������������� 177 I. Structural Changes in International Legal Argumentation������������ 177 II. Judicial Decisions as Epistemic Tools in the Argumentation of International Law�������������������������������������������������������������������� 181 III. Reassessing the Role of Judicial Decisions in International Law: A Retrospective��������������������������������������������������������������������������� 183 IV. The Way Forward: A Prospective�������������������������������������������������� 189 Bibliography���������������������������������������������������������������������������������������������� 193 Index��������������������������������������������������������������������������������������������������������� 207

Abbreviations AC

Appeals Chamber

AJ

Appeal Judgment

AJIL

American Journal of International Law

API

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, entered into force on 7 December 1978

APII

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, entered into force on 7 December 1978

BYIL

British Yearbook of International Law

ECHR

European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocols Nos. 11 and 14, entered into force on 3 September 1953.

ECtHR

European Court of Human Rights

EJIL

European Journal of International Law

GCI

First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, entered into force on 21 October 1950

GCII

Second Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, entered into force on 21 October 1950.

GCIII

Third Geneva Convention relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, entered into force on 21 October 1950

GCIV

Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, entered into force on 21 October 1950

x  Abbreviations GGs

Geneva Conventions (I–IV) of 12 August 1949, entered into force on 21 October 1950

ICC

International Criminal Court

ICC Statute

Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc A/CONF.183/9, and entered into force of 1 July 2002 (‘Rome Statute’)

ICJ

International Court of Justice

ICJ Statute

Statute of the International Court of Justice, signed on 26 June 1945 and entered into force on 24 October 1945, TS No 993.

ICL

International Criminal Law

ICRC

International Committee of the Red Cross

ICTY

International Criminal Tribunal for the Former Yugoslavia, established by UN Security Council Resolution 827 of 25 May 1993

ICTR

International Criminal Tribunal for Rwanda, established by UN Security Council Resolution 955 of 8 November 1994

IHL

International Humanitarian Law

ILC

International Law Commission

IMT

International Military Tribunal in Nuremberg

IMTFE

International Military Tribunal for the Far East

IRRC

International Review of the Red Cross

LJIL

Leiden Journal of International Law

OPIL

Oxford Public International Law Reports

PCIJ

Permanent Court of International Justice

POW

Prisoner of War

SCSL

Special Court for Sierra Leone, established by international agreement between Sierra Leone and the United Nations of 16 January 2002

STL

Special Tribunal for Lebanon

Abbreviations  xi TC

Trial Chamber

TJ

Trial Judgment

UNSC

United Nations Security Council

UNGA

United Nations General Assembly

VCLT

Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entered into force on 27 January 1980

xii

1 Introduction I.  THE ‘JUDICIALISATION TURN’ IN INTERNATIONAL LAW

T

he practice of invoking judicial decisions is well known among jurists in international law.1 While today reference to judicial decisions appears comparatively more frequently than in the past,2 in some substantive areas, arguing, reading, teaching and revisiting fundamental issues can hardly be divorced from judicial decisions. It suffices to recall the ritual use of the SS Lotus case in the discourse on extra-territorial jurisdiction, the Tadić interlocutory appeal decision for war crimes in non-international armed conflicts, or the Barcelona Traction case to claim the existence of erga omnes obligations in international law. As such, judicial decisions appear so entrenched in international law argumentation that making no reference to them would seemingly be associated with missing an important piece of knowledge in the understanding of international law. Judicial decisions are powerful tools in legal practice at large. They can persuade us of the correctness of a certain interpretive outcome; they can attract

1 E Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 Journal of Legal Studies 547; Y Lupu and E Voeten, ‘Precedent in International Courts: A Network Analysis of Case Citation by the European Court of Human Rights’ (2012) 42 British Journal of Political Science 413; U Šadl, ‘Precedent in the Sui Generis Legal Order: A Mine Run Approach’ (2014) 20 European Law Journal 544; U Šadl, ‘Case – Case-Law – Law: Ruiz Zambrano as an Illustration of how the Court of Justice of the European Union Constructs its Legal Arguments’ (2013) 9 European Constitutional Law Review 205; HG Cohen, ‘Theorising Precedent in International Law’ in A Bianchi, D Peat and M Windsor (eds), Interpretation in International Law (Oxford University Press, 2015) 268–89; A Zammit Borda, ‘The Direct and Indirect Approaches to Precedent in International Criminal Courts and Tribunals’ (2013) 14 Melbourne Journal of International Law 608; V Nehrlich, ‘The Status of the ICTY and the ICTR Precedent in Proceedings before the ICC’ in C Stahn and G Sluiter, The Emerging Practice of the International Criminal Court (Martinus Nijhoff, 2009) 305–25; N Ridi, ‘The Shape and Structure of the “Usable Past”: An Empirical Analysis of the Use of Precedent in International Adjudication’ (2019) 10 Journal of International Dispute Settlement 200; S Steininger, ‘What’s Human Rights Got To Do With It? An Empirical Analysis of Human Rights References in Investment Arbitration’ (2018) 31 Leiden Journal of International Law 33. 2 As an example, one might compare the 2016 ICRC Commentary on the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, Art 2, with the 1958 (J Pictet) ICRC Commentary on the same provision. In the former, reference to judicial decisions to interpret the provisions of the Geneva Conventions is quantitatively outstanding in comparison to the latter.

2  Introduction adherence because of the authority they emanate or because of the reasons for action they embed. Judicial decisions can operate as examples of good practice, of quality legal reasoning, of material recollection; but they can also act as a warning against bad practice, as means to depart from prior legal reasoning and propose better solutions to the issue at hand, or as examples of inaccurate methodologies.3 In international law, the power of judicial decisions seems to extend well beyond that which is traditionally accorded to them in the doctrine of sources. For instance, Georg Schwarzenberger famously described judicial decisions as ‘merely evidence of international law or, to be more exact, law-determining agencies for ascertaining the contents of the actual rules of international law’.4 Robert Jennings critically remarked that judicial decisions are invoked as ‘holy writs’ in international legal practice,5 despite the doctrine of sources of international law refuting their legally binding character. Instead of taking the road of the doctrine of sources of law – that others before me have privileged – this book turns to the somewhat uncharted terrain of legal argumentation. Its aim is not to critique adjudicators’ supposedly unorthodox approaches to the sources of international law, nor to forge a theory of judicial decisions as binding precedents in international law. Rather, the present inquiry aims to take a bird’s eye view of the aggregate effect of using judicial decisions as arguments in international law adjudication, within the formative process of what is understood, produced and disseminated as international law. In particular, in scratching the surface of one of the most applied techniques in the international legal profession,6 the present book is concerned with the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. Its aim is to show how the growing number of judicial decisions has normalised the resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the ‘judicialisation turn’ on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions. Judicial decisions are hardly ‘just’ judicial decisions. They carry world visions; they give reasons for preferring one interpretive outcome over another; they validate the existence of rules and principles that are deemed necessary for the international legal order; they recount narratives to greater communities

3 J Bell, ‘Researching Globalization: Lessons from Judicial Citations’ (2014) 3 Cambridge Journal of International and Comparative Law 961. 4 G Schwarzenberger, A Manual of International Law, 6th edn (Professional Books Ltd, 1976) 18. 5 R Jennings, ‘The Role of the International Court of Justice’ (1997) 68 BYIL 1, 41–42. 6 Pierre Bourdieu has elaborated on the notion of habitus as socialised norms and tendencies. See P Bourdieu, The Logic of Practice (Stanford University Press, 1990).

‘Judicialisation Turn’ in International Law  3 than the sole parties to the dispute; they rationalise a certain state of affairs; they are authoritative expressions of what the law is and are thus treated as bearing an epistemic value. As such, citing judicial decisions implies much more than just rehashing judicial findings. It means – consciously or unconsciously – disseminating a reason for action; endorsing a certain understanding of international law and of its function in international affairs; subscribing to or stigmatising a certain world view; promoting local doctrines and making them visible to an international audience, among others. The volume of judicial decisions on points of international law mirrors the multiplication of international courts and tribunals ever since the establishment of the Permanent Court of International Justice in 1922. This phenomenon, which some have termed ‘judicialisation’,7 uncontroversially constitutes ‘one of the most remarkable features of contemporary international relations’,8 and it is periodised as having had its peak after the Cold War with the creation of the first United Nations (UN) international criminal jurisdictions. Some commentators have even ascribed to international courts and tribunals ‘a tremendous role in shaping the structure and content of international law’.9 The greater engagement of courts with international law has certainly magnified the function of judicial decisions as authoritative statements of the law in legal interpretation. It should hence be no surprise that judicial decisions have increasingly become imbued in legal argumentation, more visibly today than in the past. Yet how courts have succeeded in concreto to establish a certain understanding of international law and orient its development still remains a widely under-explored question. Technology has further amplified the reach of judicial decisions. A number of those decisions have been stored in searchable, user-friendly databases, which have considerably increased their dissemination. To illustrate, it is estimated that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) issued more than 2,000 decisions during their 20 years of activity, while the International Criminal Court (ICC) produced more than 7,000.10 Upon their completion in 2017, the ICTY and ICTR set up a ‘legacy database’ that can be searched by subjectmatter. The output comprises a list of judicial decisions abbreviated to relevant

7 A Føllesdal and G Ulfstein (eds), The Judicialization of International Law (Oxford University Press, 2018) 1; B Kingsbury, ‘International Courts: Uneven Judicialisation in Global Order’ in J Crawford and M Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012) 203–27. 8 CPR Romano, KJ Alter and Y Shany, ‘Mapping International Adjudicative Bodies, the Issues and the Players’ in CPR Romano, KJ Alter and Y Shany (eds), The Oxford Handbook of International Adjudication (Oxford University Press, 2013) 4–26, 9. 9 F Zarbiyev, ‘Judicial Activism in International Law – A Conceptual Framework for Analysis’ (2012) 3 Journal of International Dispute Settlement 247, 248. 10 This estimation is based on the data available on the ICTY/ICTR and ICC official websites, respectively.

4  Introduction excerpts and maxims – precisely as if they served an epistemic function in relation to the subject-matter searched for. Existing databases are not solely of an institutional character, that is, created by the institution that issued those decisions. They also form an academic footprint, such as the TMC Asser Institute International Crimes Database and the Oxford Reports on International Law (ORIL) of Oxford University Press, suggesting that judicial decisions are useful tools not just for practice of international law, but for the knowledge on international law. In some areas of international law, national judicial decisions have come to significantly enrich international case law as a result of the growing activity of national courts in interpreting international law.11 Seminal examples are offered by Eichmann, Finta, Pinochet and Van Anraat. It is often the case that national jurisdictions translate their judgments and decisions on points of international law into English or French to make them accessible beyond local audiences. The plurality of courts with overlapping material competence suggests that prior judicial decisions may have a role to play when interpreting applicable law. In other words, adjudicating on points of substantive international criminal law is not to be seen as an idiosyncratic endeavour, but as an operation involving some knowledge about judicial decisions of other courts on like matters. The very practice of citing other courts’ decisions shows that judicial institutions do not operate in a vacuum but relate to one another regardless of formal architectures. Citing judicial decisions occurs not only in the context of ascertaining rules of customary international law, on which the scholarly debate has extensively focused, but also in the more interesting setting of determining the content of statutory rules. While for the former, it would be intuitive to expect adjudicators to cite judicial decisions that embed rule-ascertainment statements, for the latter it is less so, given the existence of a codified legal source to be interpreted. How, then, have judicial decisions become so central in the activity of contentdetermination of international law? By zooming in on argumentative techniques deployed by courts in interpreting posited rules of international criminal law,12 this book shows that courts themselves have laid down norms of argumentation, which have confined and

11 Among others, Anthea Roberts has effectively illustrated the reliance on domestic judicial decisions while pointing out that domestic judgments such as Pinochet, Eichmann and Filártiga are usually cited in textbooks as well as in scholarly publications to explain international law. See A Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 International and Comparative Law Quarterly 57. See, among others, M Delmas-Marty, ‘The Contribution of Comparative Law to a Pluralist Conception of International Law’ (2003) 1 Journal of International Criminal Justice 13, 16; A Tzanakopoulos and C Tams, ‘Domestic Courts as Agents of Development of International Law’ (2013) 26 Leiden Journal of International Law 513, 534. 12 See section IV, ‘Limits and Scope of the Book’, for justification of this delimitation.

Arguments  5 enabled change in international law and which still remain entrenched in legal practices to date. The focus is thus on the strength of judicial decisions as arguments in international legal reasoning, rather than on their bindingness as law. As such, two processes are examined in this book: the stabilisation of interpretive outcomes through the use of judicial decisions (entrapment); and the departure from prior judicial decisions by virtue of an exercise of discretion (liberation).13 Accordingly, rather than focusing on aspects of consistency and coherence in their substantive findings, which has been central to the literature on legal fragmentation, the present book looks at the structure of legal argumentation as evidenced in the practice of international law adjudication and combines it with an internal dimension of how courts have justified reiterating prior legal findings, in spite of the absence of a stare decisis principle in international law. As such, this provides an explanatory account of how the judicialisation era has created new room in the formation and amendment of what is understood, produced and disseminated as the meaning of international law. In so doing, it invites more careful reflection on the bearing of the judicialisation era on the ways in which international law has taken shape and continues to take shape through courts’ authoritative statements of the law. II. ARGUMENTS

The central claim of this book is that the unprecedented production and dissemination of judicial decisions on international criminal law has prompted an alternative set of creative paths in legal argumentation. More specifically, three interrelated arguments are put forward by the present research: the entrapment argument, the liberation argument, and the ontological argument. First, the entrapment argument claims that both international and national courts have used judicial decisions in constructing the meaning of statutory rules of international criminal law. The reiteration of judicial decisions in the adjudication of international criminal law has validated what is understood by courts as the correct interpretation of international criminal law, and it has thus constrained judges’ scope of discretion.14 Discretion looms in every interpretive act of the law. Its limits are not clearly posited in the law, and courts shy away from clearly defining the bounds of their discretion. Although citation of and alignment with prior judicial decisions by later courts may play out as a constraint on courts’ discretion, this is still the most powerful tool that courts have at their disposal to orient international law towards a certain course of action. Prior judicial decisions are evidence not only of how a legal issue has been interpreted previously, but also of the range of

13 On 14 See

discretion, see ch 2, section II. ch 4.

6  Introduction discretion that courts have exercised. As such, citing prior judicial decisions is a way of showing that a later court is aligning itself with earlier interpretive outcomes, and that its exercise of discretion harmonises with prior instances. In other words, prior judicial decisions provide a ­justification for reaffirming like legal holdings and consolidating them as a correct interpretation of the law. It follows that judicial decisions yield effects on how legal findings are justified, and the way in which international law is practised, more broadly. This iterative use of judicial decisions has been enabled by norms of argumentation laid down by courts themselves. The creation by courts of these norms has been subtle and hinged on at least three primary levels. First, in interpreting international law, international courts have created norms, in the form of ‘tests’. The establishment of a test enables a court to widen its scope of discretion in the face of rigid posited legal definitions. Secondly, in interpreting international law, international courts have expressed reasons for action which have influenced how future cases are adjudicated based on the choice of a course of action operated in earlier decisions. Reasons for action expressed by international jurisdictions range from the importance of ensuring legal stability, predictability and formal justice, to reasons such as the ‘humanity considerations and common sense’. The basis for these reasons for action cannot always be inferred from the legal rule that the court interprets. For instance, whilst ‘humanity considerations’ might be constructed based on the Martens clause,15 which is considered to be customary, reasons of legal predictability and stability may be traced back to the idea of international law a court has and the function it ascribes to it. This reason, though legitimate, stems from judges’ axiological preferences vis-à-vis the role of international law and of their own judicial function within the legal system. The latter aspect has emerged in the discussion of different approaches to interpretation. Such reasons for action have allowed concepts like ‘common sense’ to attain a legal connotation, and to become part of the argumentative practice of international law. Thirdly, international jurisdictions have laid down norms of argumentation, thus establishing a shift in the burden of justification, that is, that the later court has the burden of showing that there is a more correct interpretation and that the prior court was mistaken, or that a later court should not depart from ‘established jurisprudence’. These norms have allowed the interpretive choices in previous judicial decisions to become stable and made it difficult to depart from them. These norms do not only constrain courts in later cases; they also self-constrain the court that has laid them down. Such constraint arguably influences the discretion of later courts, whose measure of interpretive choices is limited by earlier cases. However, the appreciation of a case as like, or as entailing compelling reasons for departing from the ‘established jurisprudence’,



15 See

Preamble to the 1899 Hague Convention.

Arguments  7 may further expand the bounds of discretion, as long as such appreciation may be legally justified.16 As part of the norms of argumentation, international courts and tribunals have declared that international judicial decisions should be regarded as more authoritative than national ones, de facto downplaying the weight of national courts’ decisions on points of international law.17 Interestingly enough, this has been claimed by the ICTY, even if it then substantively followed the interpretation provided by prior national judicial decisions. International courts have been at the forefront in articulating the meaning of rules in international law and in underscoring courses of action that could be justified by way of legal arguments. In doing so, international courts have created an inventory of arguments that, as authoritatively pronounced by international courts, may be used in later judicial argumentative practices. As such, the formation of the meaning of the law is oriented and constrained by courts’ norms of argumentation that, for instance, require the following of prior established jurisprudence unless ‘compelling reasons’ exist to depart from it, or justification of departure from a previously established line of cases.18 In the argumentation of international law, prior judicial decisions are thus justified to reaffirm like legal findings. Secondly, once interpretive outcomes were stabilised, argumentative techniques still enabled courts to regain discretion and depart from a previously established acquis. Against the backdrop of the web of judicial decisions providing an authoritative interpretation of the law, the marks of creation are exhibited in the departure from the course of action laid down by prior jurisprudence.19 The use of judicial decisions, expressed through citation and reiteration of judicial decisions by courts, is thus an avenue of legal formation insofar as it stabilises interpretive outcomes or, alternatively, offers a reason to depart from a previously established line of cases. In a legal system, this is conducive to identifying judicial decisions as correct statements of international law, as long as later courts have accepted them as such via citation. This bifurcated path enables analysis of the ambivalent role that judicial decisions have played in legal argumentation, deploying both an element of creativity and self-constraint as regards later decisions. Trapped in a network of precedents as default points of reference in international law argumentation, courts have employed techniques, such as the defeasibility of the law or argumentative norms on precedents, enabling them to depart from established courses of action and ultimately to rewrite the meaning of international law. 16 To these three levels one could add a fourth, traditionally underscored by the literature on ­judicial law-making, namely, the determination of existing rules of international law. This process of rule-ascertainment has first and foremost involved rules of customary international law, often identified using criteria other than consistent, uniform practice of the majority of states and opinio juris (ie the criteria elucidated by the jurisprudence of the International Court of Justice (ICJ)). 17 See ch 4, section V. 18 See eg Prosecutor v Stanisić and Župljanin (Judgment) ICTY-08-91-A (30 June 2016), para 598. 19 See ch 4.

8  Introduction As such, formation of international law may result from a process of stabilisation of interpretive outcomes by following prior judicial decisions, as well as from a process of active formation of the law by departing from prior decisions, by virtue of an exercise of discretion. Thirdly, the rise of courts and the production and dissemination of judicial decisions on points of international law have influenced the way in which courts address international legal issues, underscoring a transition from a logicaldeductive (syllogistic) structure of argumentation to a topical structure of argumentation, in which prior judicial decisions serve as reference points for interpreting rules of international criminal law.20 The regular citation of judicial decisions in the adjudication of international criminal law exhibits such a tendency. Past judicial decisions form an inventory of argumentative structures to use as practical solutions to legal problems. The reliance on judicial decisions for judicial decision-making has fundamental implications owing to the essence of judicial decisions as expressing not just interpretive utterances but also a reason for action. Such reason hinges on the interpreter’s discretion, including axiological preferences, and is subtly looming in the iterative use of judicial decisions. Rewriting international law thus means not only departing from an established course of action, but also, at a deeper level, revisiting the reason for action ingrained in any adjudicative act. To demonstrate these arguments, this book presents an analysis of judicial decisions as arguments used by courts in international criminal adjudication,21 involving the interpretation of codified rules of international criminal law. It is worth repeating that while it would be intuitive to expect judicial decisions to play a crucial role in the discourse on customary international law – by definition unwritten – it would be counter-intuitive to expect judicial decisions to play a comparable role in the interpretation of written rules of international law. The analysis unfolds by reference to two ideal-typical models: (i) one in which interpretive outcomes are progressively stabilised in legal argumentation; and (ii) the other in which departure from a previously established acquis is enabled. The latter especially unveils the element of creativity that international legal scholarship has tried to capture over time, including through the prism of judicial creativity. III.  LEGAL INTERPRETATION AS A FORM OF ARGUMENTATION

While acknowledging that there is no agreed definition of interpretation in international law, this section considers the concept of legal interpretation as a 20 See ch 5. 21 Adjudicating is defined as the ‘law-based way of reaching a final decision in a contention … which leads to a binding outcome’ for the parties to the dispute. The present work does not consider arbitration in the set of judicial practices examined. See Romano, Alter and Shany, ‘Mapping International Adjudicative Bodies, the Issues, and the Players’ (n 8) 4–26, 4.

Legal Interpretation as a Form of Argumentation  9 form of argumentation, in view of the analysis of judicial decisions undertaken in the following chapters. Legal interpretation is a multi-faceted process insofar as it involves an array of diverse activities. A fundamental distinction considers legal interpretation as encompassing a process of content-determination and a process of lawascertainment.22 This non-exhaustive distinction is envisaged as overcoming a monolithic understanding of legal interpretation. While the process of contentdetermination is oriented towards ‘the applicable standard of behaviour or the normative guideline for the case’, the process of law-ascertainment is geared towards interpreting ‘the pedigree of rules in order to ascertain whether a given rule can claim to be part of the international legal order’.23 The latter will thus consist in distinguishing law from non-law, which is a process usually involving the interpretation of the doctrine of sources.24 Although functionally divorced, common features are shared by the two processes. For instance, they are both ‘instrumental to the constitution of the authority of both international law and international legal arguments’.25 Though not uncontroversial, looking at interpretation as a practice of making international law is not a new position in the scholarly debate.26 22 J d’Aspremont, ‘The Multidimensional Process of Interpretation – Content-Determination and Law-Ascertainment Distinguished’ in Bianchi, Peat and Windsor (eds), Interpretation in International Law (n 1) 111–132. According to d’Aspremont, maintaining the distinction between the two processes allows for resort to a rule-based approach in the case of content-determining interpretation, and to social practices for law-ascertainment interpretation, where such community stands for one of law-applying authorities sharing ‘linguistic signs to determine the object of study and its object of agreement and disagreement’, hence ‘signs of communication’. As such, d’Aspremont is interested in formulating a theory of the sources of international law à la HLA Hart, where legal sources are identified through social practices. See J d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (Oxford University Press, 2011). 23 d’Aspremont, ‘The Multidimensional Process of Interpretation’ (n 22) 117. 24 Ibid. 25 Ibid 119. For the full enumeration of commonalities, see ibid 119–20. This classification in rule-ascertainment and content-determination is considered particularly relevant in the field of international criminal law adjudication, in that courts’ activity of determining the content of legal rules often blurs with, for example, the process of ascertainment of rules of customary international law. See eg Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995), paras 139–40. 26 A von Bogdandy and I Venzke, ‘On the Democratic Legitimation of International Judicial Lawmaking’ (2011) 12 German Law Journal 1341, 1345; G Hernández, ‘International Judicial Law Making’ in C Brölmann and Y Radi (eds), Research Handbook on the Theory and Practice of International Lawmaking (Edward Elgar, 2016) 200–21, 201. Typically, the limited codification of the law has gone hand in hand with the more prominent role of the international judge to develop the normative content of rules and to fill the lacunae of a presumed incomplete legal order. See H Lauterpacht, The Development of International Law by the International Court (Stevens & Sons, 1958); T Buergenthal, ‘Law Making by the ICJ and Other International Courts’, Proceedings of the Annual Meeting (American Society of International Law), (2009) 103 International Law as Law 403, 403. The argument for courts as ‘agents of development’ of international law has been made as regards domestic courts (see eg A Tzanakopoulos and CJ Tams, ‘Introduction: Domestic Courts as Agents of Development of International Law’, (2013) 26 Leiden Journal of International Law 531) as well as international ones (see Lauterpacht, The Development of International Law by the

10  Introduction Ingo Venzke has aptly bridged the paradigm of sources and the paradigm of interpretation by defining interpretation as a performative and ‘constitutive activity in that it contributes to the making of what it purports to find’.27 In a similar vein, several definitions of legal interpretation have departed from more traditional views defining interpretation as ‘a process of understanding a legal text’;28 an act assigning meaning to texts with the objective of establishing rights and obligations;29 or as a process to ‘deduce the meaning exactly of what has been consented to and agreed’ by the parties to an international treaty.30 For instance, Gleider Hernández contends that the positivist concept of law in a post-modern world (…) can and does admit … that the interpretative act has a constitutive – or, at the very least, a normative – effect on the development of international law: given that legal systems are essentially rooted in the power of linguistic constructions, the possibility of semantic indeterminacy remains a reality.31

An extension of this position is offered by some approaches for which ­interpretation engages not only an individual interpreter but a community of interpreters, or an interpretive community. The meaning of a legal text is thus determined by social context.32 Plainly, if interpretation is constitutive of the object it purports to find, it follows that interpretation plays an existential function vis-à-vis the sources it interprets.33

International Court, above; CG Weeramantry, ‘The Function of the International Court of Justice in the Development of International Law’ (1997) 10 LJIL 309; F Kratochwil, Rules, Norms, and Decisions (Cambridge University Press, 1989) 220. 27 I Venzke, ‘The Travails of Legal Positivism from Post-Modern Perspectives: Performativity, Deconstructions and Governmentality’ in J Kammerhofer and J d’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, 2014) 182–210, 182. 28 On the different definitions of interpretation, see U Linderfalk, On the Interpretation of Treaties – The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, 2007) 10–13. See also U Linderfalk, ‘Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making’ (2015) 26 European Journal of International Law 169, 171: ‘the ultimate aim of the treaty interpretation process, as described in the VCLT, is to establish the legally correct meaning of the interpreted treaty’, ie ‘the communicative intention of the treaty parties’. 29 M Herdegen, ‘Interpretation in International Law’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, Vol VI (Oxford University Press, 2012) 260–68. 30 A Orakhelashvili, The Interpretation of Acts and Rule in Public International Law (Oxford University Press, 2008) 286. 31 G Hernández, ‘Interpretation’ in Kammerhofer and d’Aspremont (eds), International Legal Positivism in a Post-Modern World (n 27) 317–48, 317. See similarly R Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public (Bruylant, 2006) 3. 32 A Bianchi, ‘Textual Interpretation and (International) Law Reading: The Myth of (in)­ determinancy and the Genealogy of Meaning’ in PHF Bekker, R Dolzer and M Waibel (eds), Making Transnational Law Work in the Global Economy (Cambridge University Press, 2010) 34–55. 33 On the point, see DB Hollis, ‘The Existential Function of Interpretation in International Law’ in Bianchi, Peat and Windsor (eds), Interpretation in International Law (n 1) 78–110.

Legal Interpretation as a Form of Argumentation  11 In the wake of this latter stance, the present study considers that the meaning of legal texts is construed through ‘performative and constitutive’ argumentative practices aimed at persuading a certain audience.34 Yet, while acknowledging that interpretation is characterised by a rule-bound justification, it admits that a discretionary component is innate in the process of interpreting.35 Indeed, there may be more than one way in which a legal text may be interpreted, and the choice between different simultaneous, plausible and correct meanings is an interpreter’s one. This choice is hereinafter referred to in terms of discretion in legal interpretation.36 Conceding that a judge can choose between competing courses of action invites reflections on how such a choice is restrained and justified in order for the judicial decision-making process not to result in arbitrary but legally justified outcomes instead. Especially in the case of international criminal law, these questions have a direct bearing on individuals involved in the criminal proceedings. Whether or not a court may be considered to be developing the law, or making the law, entails a twofold assumption. First, that it is possible to assess what is new, not hinged on the law, as compared to a hypothetically ‘more objective’ interpretation. Secondly, that there exists a universal understanding of what a judge ought (not) to do in the exercise of his/her judicial function within a legal order. Thus, whether or not a judge, as an interpreter of a legal text, is contributing to law-making is in the eyes of the beholder and of his/her normative stance as to what the act of interpreting should entail. Against this background, legal interpretation is here understood as a particular form of argumentation consisting of ‘arguing for a particular understanding of authoritative texts as a kind of (justifying) reason for legal decisions’.37 By argumentation, reference is made to an activity of justification consisting of adducing arguments in favour or against something. It is the place where reasons are given, where justification is shaped and reshaped, and as such the site where one would look to know why a course of action was preferred to another possible one. Thus, interpretation and argumentation are not synonymous. Instead, argumentation is the framework within which interpretation unfolds as an activity of justifying rather than as an activity of ‘finding’ a meaning of a text.38

34 M Koskenniemi, ‘Methodology in International Law’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, online edn (Oxford University Press, 2007). 35 See ch 2. 36 See ch 2, section III. 37 N MacCormick, ‘Argumentation and Interpretation in Law’ (1995) 9 Argumentation 467, 467. 38 The expression ‘“finding” a meaning of a text’ is understood as the act of discovering a pre-existing meaning somehow hidden in a legal text. For a treatment of the dialectic between justification and finding/discovery of meaning, see L Lo Giacco, ‘Eureka! On Courts’ Discretion in “Ascertaining” Rules of Customary International Law’ in P Merkouris, J Kammerhofer and N Arajärvi (eds), N Mileva (ass ed), The Theory, Practice and Interpretation of Customary International Law (Cambridge University Press, 2022) 256–76.

12  Introduction Pursuant to this view, judicial decisions are the result of interpretive actions, which intrinsically embed elements of law-making39 but, at the same time, provide a term of reference against which exercises of discretion in subsequent judicial decisions may be assessed and weighted against arbitrariness in the argumentation process. IV.  SCOPE AND LIMITS OF THE BOOK

The practice of using judicial decisions as arguments in international law is at the core of the present inquiry. The focus on practices is akin to the theoretical approach embraced throughout the work, which construes the meaning of international law as the result of the authoritative interpretations by relevant actors. The expression ‘relevant actors’ refers to the array of actors that take part in the legal practices of international law, such as legal interpretation, adjudication, etc. Admittedly, such an array may be more or less narrowly defined so as to include actors engaging in the interpretation of international law, for example states, international organisations, courts, legal scholars, quasi-judicial bodies such as United Nations Commissions of Inquiry, UN Treaty Bodies, and other international bodies like the International Committee for the Red Cross (ICRC) and the International Law Commission (ILC).40 For the purpose of this study, only courts are considered, since it focuses on judicial decisions as embedding a particular form of institutional legal reasoning.41 This is the first limit of the present book. Although exploring the formative processes of international law through the iterative use of judicial decisions may in principle unfold in very diverse areas of public international law, this book does not provide a wholescale theory of legal argumentation, nor a comprehensive study on judicial decisions in international law. It rather focuses on the use42 of judicial decisions in the context of

39 Judicial decisions have expressed this position too. For instance, in the case United States of America v Alstötter et al, the Military Tribunal, established by Control Council Law No 10 for the trials of war criminals in the occupied territories, affirmed that ‘International law is not the product of a statute. Its content is not static. The absence from the world of any governmental body authorised to enact substantive rules of international law has not prevented the progressive development of the law.’ See United States of America v Alstötter et al (‘the Justice case’), Judgment of 4 December 1947, in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, III, 974–75. 40 A Boyle and C Chinkin, The Making of International Law (Oxford University Press, 2007); A von Bodgandy and I Venzke (eds), International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance (Springer, 2012); J d’Aspremont (ed), Participants in the International Legal System (Routledge, 2011); J Klabbers, ‘Law-making and Constitutionalism’ in J Klabbers, A Peters and G Ulfstein (eds), The Constitutionalisation of International Law (Oxford University Press, 2009) 81–125, 85–86. 41 Ch 2, section I. 42 The terms ‘used’ and ‘use’ are deliberately broad with a view to accounting for instances in which courts do not necessarily follow the legal interpretation of prior judicial decisions. For

Scope and Limits of the Book  13 international criminal law adjudication. A number of reasons make this branch of public international law particularly suited.43 International criminal law is an area in which the quantitative and qualitative expansion in the use of judicial decisions has appeared most prominent. From the 1990s onwards, a number of international judicial institutions came into existence.44 In 1993 and 1994 respectively, the UN Security Council established by resolution the ICTY and the ICTR.45 In 1998, the international agreement establishing the first permanent international criminal jurisdiction, the ICC, was adopted.46 In 2002 and 2007 respectively, the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon (STL) were set up. Before the creation of the International Military Tribunal in Nuremberg (IMT) and the International Military Tribunal for the Far East in Tokyo (IMTFE) in 1945,47 rules criminalising the conduct of individuals under international law were largely uncodified.48 These rules were succinctly formulated in the foundational documents of the IMT and IMTFE, that is the Nuremberg Charter (or London Charter) and the Tokyo Charter, and considerably developed

instance, a court may cite a case and explain departure from it. Still, this will be treated as a case of citation, in which the court uses – albeit it does not follow – the cited decision. As said earlier, citation makes such a use visible. Other forms of use that are not tied to citation are therefore in principle left out. The only envisaged exception to this is given by cases in which the interpretation of a prior judicial decisions is cited verbatim in a subsequent case. Arguably, reference is made equally visible to when citation is formally expressed, although filtering such cases where citation is de facto may be more difficult. 43 E van Sliedregt, Individual Criminal Responsibility in International Law (Oxford University Press, 2012) 5, referring to the law-making process through judicial interpretation. See also H van der Wilt, ‘Domestic Courts’ Contribution to the Development of International Criminal Law: Some Reflections’ (2013) 46 Israel Law Review 207, 207. 44 Karen Alter reports that about two dozen international courts were operative by the end of 2011. See KJ Alter, ‘The Multiplication of International Courts and Tribunals After the End of the Cold War’ in Romano, Alter and Shany (eds), The Oxford Handbook on International Adjudication (n 21) 64–88, 65–67. 45 Acting under Chapter VII of the UN Charter, the UN Security Council established the ICTY by Resolution 827 of 25 May 1993, and the ICTR by Resolution 955 of 8 November 1994. 46 Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and entered into force of 1 July 2002 (Rome, 17 July 1998) 2187 UNTS 3 (‘Rome Statute’ or ‘ICC Statute’). For a thorough study on the multiplication of international courts and tribunals, see Romano, Alter and Shany (eds), The Oxford Handbook of International Adjudication (n 8). Cf CPR Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’ (1999) 31 NYU Journal of International Law and Politics 709. 47 While the IMT in Nuremberg was established by international treaty, the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, the IMTFE was set up following a directive of the Commander-in-Chief of the Allied Powers, General MacArthur, issued on 19 January 1946. 48 An ante litteram instance of a rule providing for the criminal responsibility of individuals under international law is traced back to the Versailles Peace Treaty of 28 June 1919, which envisioned the creation of an international tribunal to try Kaiser William II of Hohenzollern ‘for the supreme offence against international morality and the sanctity of treaties’. See Versailles Peace Treaty, Art 227(1). On this point, see G Werle and F Jessberger, Principles of International Criminal Law, 3rd edn (Oxford University Press, 2014) 2–5.

14  Introduction through judicial decisions of the (IMT), later codified by the ILC in the so-called ‘Nuremberg Principles’.49 Following the establishment of the ad hoc tribunals, international criminal law rules underwent a further development. By 2017, the ad hoc tribunals were officially shut down,50 marking the closure of two judicial institutions that had been at the forefront of international criminal justice and that still bear a legacy for many substantive international criminal law issues.51 The closure of the ICTY and ICTR occurred amid the new emphasis on the activity of national jurisdictions and on newly international judicial institutions. Indeed, a more active role for national jurisdictions in the prosecution and adjudication of international crimes had been envisaged with the adoption of the principle of complementarity informing the ICC. Following the ratification of the ICC Statute, as well as in the wake of the affirmation of the principle of universal jurisdiction, national courts did indeed become more engaged with the interpretation and application of international criminal law. This has made international criminal law a particular landscape, in which a plurality of courts – national and international – with overlapping material jurisdiction would arguably relate to one another in the adjudication of international criminal law.52 Nevertheless, the making of international criminal law has been largely under-explored in legal scholarship.53 While formative processes of international law gained increasing attention over the years,54 the debate on international criminal law-making has been significantly absorbed by the strands on judicial creativity and judicial activism, and their compatibility with the principle of

49 ILC, ‘Principles of International Law Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’ [1950] II Yearbook of the International Law Commission 374, para 97. 50 The closure of the ICTR officially dates back to 31 December 2015, while the ICTY was declared closed on 27 December 2017. 51 For an analysis of the influence of the UN ad hoc tribunals on different areas of international criminal law, see S Darcy and J Powderly (eds), The International Criminal Tribunals and the Judicial Development of International Criminal Law (Oxford University Press, 2010). 52 For a thorough reflection on the modern relationship between domestic and international courts, see J Nijman and A Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press, 2007). 53 The point is also clearly made in S Vasiliev, ‘The Making of International Criminal Law’ in Brölmann and Radi (eds), Research Handbook (n 26) 354–394, 355. 54 By way of illustration, see A Cassese and JHH Weiler (eds), Change and Stability in International Law-Making (de Gruyter, 1988); G Danilenko, Law-Making in the International Community (Martinus Nijhoff, 1993); J Alvarez, International Organisations as Law-Makers (Oxford University Press, 2006); Boyle and Chinkin, The Making of International Law (n 40); J Brunnée and SJ Toope, Legitimacy and Legality in International Law – An Interactional Account (Cambridge University Press, 2010); S Darcy and J Powderly (eds), Judicial Creativity at the International Criminal Tribunals (Oxford University Press, 2011); J Pauwelyn, R Wessel and J Wouters (eds), Informal International Lawmaking (Oxford University Press, 2012); von Bodgandy and Venzke (eds), International Judicial Lawmaking (n 40); I Venzke, How Interpretation Makes International Law (Oxford University Press, 2013); Brölmann and Radi (eds), Research Handbook (n 26).

Scope and Limits of the Book  15 legality in criminal matters.55 The creative role of the judge has been examined in light of loose or non-rigorous ways of ascertaining rules of customary international law, as well as of rules of treaty interpretation.56 Commentators, for instance, regarded the application of rules of interpretation by the ad hoc international criminal tribunals as ‘at best unpredictable’ and ‘frequently chaotic and unsystematic’.57 Further, the use of judicial decisions by international criminal jurisdictions has been tackled from the vantage point of precedent in international law,58 privileging the angle of judicial decisions as sources of international law.59 Importantly, judicial decisions have mainly been treated as single instances of adjudication, overlooking the structural, systemic significance of the use of judicial decisions in international criminal law adjudication and the role that judicial discretion has played therein. As such, the effects that the volume of judicial decisions has produced on the way in which legal findings are justified in international law still warrant theoretical reflections. Further, the material field of investigation is limited to substantive international criminal law as opposed to procedural international criminal law. Substantive international criminal law is defined as the set of ‘norms that establish, exclude or otherwise regulate [individual] responsibility for crimes under international law’.60 The choice to delimit the field of inquiry to the substantive

55 See eg Darcy and Powderly (eds), Judicial Creativity at the International Criminal Tribunals (n 54); K Ambos, ‘Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism under International Law?’ (2011) 24 Leiden Journal of International Law 655. 56 See eg WA Schabas, ‘Judicial Activism and the Crime of Genocide’ in Darcy and Powderly (eds), Judicial Creativity at the International Criminal Tribunals (n 55) 63–79. 57 J Powderly, ‘Judicial Interpretation at the Ad Hoc Tribunals: Method from Chaos?’ in Darcy and Powderly (eds), Judicial Creativity at the International Criminal Tribunals (n 54) 17–44, 17. 58 A Zammit Borda, ‘Precedent in International Criminal Courts and Tribunals’ (2013) 2 Cambridge Journal of International and Comparative Law 287; Zammit Borda, ‘The Direct and Indirect Approaches to Precedent’ (n 1) 608; Nehrlich, ‘The Status of the ICTY and the ICTR Precedent’ (n 1). 59 A Zammit Borda, ‘The Use of Precedent as Subsidiary Means and Sources of International Criminal Law’ (2013) 18 Tilburg Law Review 65; A Zammit Borda, ‘A Formal Approach to Article 38(1)(d) of the ICJ Statute from the Perspective of the International Criminal Courts and Tribunals’ (2013) 24 EJIL 649. It is worth mentioning that Mohamed Shahabuddeen has accounted for the use of judicial decisions from the perspective of the bench, providing important insights into how a court decides which cases to cite. See M Shahabuddeen, Precedent in the World Court (Cambridge University Press, 1997). 60 G Werle, Principles of International Criminal Law, 2nd edn (TMC Asser Press, 2009) 29. Similarly, international criminal law can be defined as ‘a body of international rules designed to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, international terrorism) and to make those persons who engaged in such a conduct criminally liable’. See A Cassese, P Gaeta et al, Cassese’s International Criminal Law, 3rd edn (Oxford University Press, 2013) 3; Werle and Jessberger, Principles of International Criminal Law, 3rd edn (n 48) 31: ‘International criminal law encompasses all norms that establish, exclude, or otherwise regulate responsibility for crimes under international law. Other definitions of international criminal law however exist. See eg Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2010) 4–5; C Kress, ‘International Criminal Law’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, online edn (Oxford University Press, 2009).

16  Introduction aspect of international criminal law is justified by a number of factors. First, substantive international criminal law concerns, besides the conditions to exercise jurisdiction, the material legal rules and principles defining the constitutive elements of international crimes and governing the individual criminal responsibility under international law originating therefrom. The assumption is that those material rules and principles apply to all states equally, regardless of territorial or national constraints. The same would not hold true for procedural international criminal law, which is defined as the set of legal rules and principles dealing with procedures at trial. Arguably, procedural norms are still largely tied to the territorial state and therefore differ among domestic jurisdictions and international criminal jurisdictions alike. Secondly, since this study concerns content-determination processes, it is necessary to make reference to a body of norms that are applied grosso modo under like, let alone identical, terms. Substantive international criminal law appears to offer a more solid ground for inquiry, as many of its rules have even been regarded as crystallised into customary international law – unlike procedural international criminal law. Thirdly, it is maintained that arguments based on a substantive international criminal law analysis may be of significance, and thus be potentially extended, to other areas of public international law. The same would not hold true for an analysis of procedural international criminal law, which is peculiar to the field of criminal law. An additional delimitation regards the thematic areas in which the inquiry into judicial decisions on points of international criminal law unfolds, namely: (i) judicial decisions pertaining to the crime of genocide, dealing in particular with the legal concept of ‘protected group’ as a constitutive element of the crime; (ii) judicial decisions dealing with the legal concept of ‘armed conflict’ in the context of war crimes or violations committed in times of armed conflict; and (iii) judicial decisions dealing with the notion of ‘unlawful combatant’ in the context of violations committed in times of armed conflict. The delimitation of material is justified as follows. As the present research primarily focuses on the process of content-determination of legal rules via the iterative citation of judicial decisions, it warrants an examination of areas that are disciplined by posited legal rules. This would enable an analysis of whether courts have engaged with primary sources to adjudicate points of international criminal law, or rather adjudicated by reference to prior judicial decisions. In connection with this, it will also enable us to assess to what extent international and national courts have resorted to a like methodology (ie the rules of the Vienna Convention on the Law of Treaties (VCLT)). In fact, as rules of interpretation typically apply to legal texts, it would be controversial to apply them to areas disciplined by customary international law, let alone to assume that a clear definition of crimes under customary international law would exist. Moreover, while international treaties posit clear obligations to prosecute certain

Scope and Limits of the Book  17 international crimes,61 and therefore imply the engagement of national courts in the adjudication of international crimes, such obligations may be more difficult to establish under customary international law.62 The legal concept of ‘armed conflict’ is enshrined in the 1949 Geneva Conventions, which criminalised grave breaches, namely specific violations committed in international armed conflict.63 Conversely, Common Article 3 of the Geneva Conventions enumerates conduct that is prohibited in times of noninternational armed conflict. Further violations of the laws and customs of war may be inferred from the letter of the Conventions and Additional Protocols, when applicable. Notably, these legal instruments make no reference to the concept of ‘war crimes’, which is a legacy of the Nuremberg Charter.64 As both the 1949 Geneva Conventions and the Genocide Convention impose on states the obligation to prosecute conduct that is criminalised therein, the assumption is made that the concept of ‘armed conflict’ and the concept of ‘protected group’ may come under the purview not only of international criminal jurisdictions, but also of national ones. The notion of ‘unlawful combatant’ deserves particular justification. Unlike the concepts of ‘protected group’ and ‘armed conflict’, ‘unlawful combatant’ has no legal basis in international legal instruments. Rather, the notion emerged within distinct national jurisdictions, under the claim that positive legal rules needed to adapt to ‘new’ types of armed conflict and hence to ‘new’ categories of belligerents. In the view of its proponents, ‘unlawful combatant’ would represent a welcome development in the rules of international humanitarian law in force. Although the concept has raised and continues to raise controversies, scrutinising the techniques employed in judicial practices to claim the existence of this notion under international law may prove useful in exploring the role played by judicial decisions to reach alternative interpretive outcomes. Two types of thematic areas have been deliberately excluded from the material to analyse. First, areas with an inherent national and penal connotation,

61 Eg Arts 49 GCI, 50 GCII, 129 GCIII, 146 GCIV, and Art VI of the Genocide Convention. 62 On the point, see eg Questions relating to the Obligation to Prosecute or Extradite case (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422, para 54: ‘the issue whether there exists an obligation for a State to prosecute crimes under customary international law that were allegedly committed by a foreign national abroad is clearly distinct from any question of compliance with that State’s obligations under the Convention against Torture and raises different legal problems.’ Notably, Art 7 of the 1984 Convention against Torture provides for an obligation to prosecute or extradite. 63 Arts 50 GCI, 51 GCII, 130 GCIII and 146 GCIV. Article 85 API further extended the enumeration of grave breaches. 64 Art 6(b) of the London Charter concerned ‘war crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.’

18  Introduction for example modes of liability, have been considered unsuitable to demonstrate arguments of international law formation. This, however, does not mean that a cursory inquiry into the use of judicial decisions in the field of modes of liability, such as aiding and abetting, would not provide supplementary corroboration to the present study.65 Secondly, areas that have long been disciplined by customary international law, such as crimes against humanity, have also been excluded from the sample material. As noted earlier, while international treaties are regulated by rules of treaty interpretation, it would be controversial to assume that similar rules of interpretation apply to international customary law.66 An essential dimension of complexity would be overlooked in this analysis if national courts were set aside, as this would seem to confine the interpretation of international law to the exclusive domain of international courts and tribunals. On the contrary, the adjudication of international law in national fora has made an entire strand of scholarship flourish in the last decade.67 As reinforced by the principle of complementarity in the ICC Statute,68 national courts, too, are central partners in prosecuting the alleged perpetrators of international crimes. This partnership translates not only into a quantitative increase of national judicial decisions on points of international criminal law, but also into a qualitative contribution to its understanding. Accordingly, alongside judicial decisions of international criminal jurisdictions, this enquiry considers a number of judicial decisions of national courts (ie of Argentina, Canada, Finland, Germany, Israel, Iraq, Spain, the Netherlands, the United States and the United Kingdom (UK)), delimited in a way that is contingent on the thematic areas considered (eg ‘armed conflict’) and/or the international treaty provisions involved (eg Common Article 3 of the 1949 Geneva Conventions). The bulk of this judicial practice appears sufficiently diverse, in terms of geography and legal tradition, to demonstrate that the use of judicial decisions on points of international criminal law is not specific to certain legal cultures alone. In some of these national jurisdictions, for example Finland, Criminal Codes provide for a definition of war crimes, crimes against humanity and genocide. Some others have issued special laws enacting relevant international treaties. For instance, the United Kingdom enacted the Geneva Conventions Act in 1957

65 See ch 4. 66 Until the entry into force of the Rome Statute establishing the International Criminal Court on 1 July 2002, rules concerning crimes against humanity were primarily based on customary international law. 67 See, among others, the pioneering work by A Cassese and M Delmas-Marty (eds), Juridictions Nationales et Crimes Internationaux (Presses Universitaires de France, 2002); A-M Slaughter, and W Burke-White, ‘The Future of International Law is Domestic (or, the European Way of Law)’ (2006) 47 Harvard International Law Journal 327; S Fatima, Using International Law in Domestic Courts (Bloomsbury Publishing, 2014); O Ammann, Domestic Courts and the Interpretation of International Law : Methods and Reasoning Based on the Swiss Example (Brill, 2019); A Roberts et al (eds), Comparative International Law (Oxford University Press, 2018); K Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 NYU Journal of International Law & Politics 501. 68 See, in particular, Arts 1, 15, 17, 18 and 19 ICC Statute.

Scope and Limits of the Book  19 and the Geneva Conventions (Amendment) Act in 1995, conferring on national courts the power to prosecute grave breaches committed before the entry into force of the Rome Statute, as enumerated in the 1949 Geneva Conventions and Additional Protocol I, respectively.69 Of these national jurisdictions, three have not ratified the Rome Statute,70 while for the others the Statute entered into force on 1 July 2002. In the latter jurisdictions, for example the Netherlands, national law has been amended to comply with their international legal obligations. Canada, for instance, ratified the Rome Statute on 7 July 2000 and, accordingly, issued a new law on international crimes, the Crimes Against Humanity and War Crimes Act 2000.71 Two important provisos are worth addressing here. First, although this investigation considers the growing emphasis on national courts in the adjudication of international crimes, and examines judicial decisions issued inter alia by the ICC, its focus is not on the complementarity principle, which informs the functioning of the ICC.72 A delimitation of the material to scrutiny on the basis of the Rome Statute, and the parties thereto, would have necessarily entailed examining national judicial practices in light of the complementarity principle, formalised in the Statute. Instead, this book is concerned with more spontaneous phenomena that can better illustrate how discretion plays out in legal practice, absent formal institutional structures. Secondly, at the heart of this inquiry rests the hypothesis that national and international courts’ judicial decisions are both cited in the adjudication of later cases on like points. The deference to international or to national judicial decisions may vary, though, depending on the concept to be interpreted. Even though a quantitative method would allow determination of the frequency with which a judicial decision has

69 For an overview of domestic legislation over international crimes and universal jurisdiction, see Amnesty International, ‘Universal Jurisdiction – A preliminary survey of legislation around the world – 2012 Update’, available at www.amnesty.org/download/Documents/24000/ior530192012en. pdf. 70 Israel, Iraq and the United States. 71 Canada, Crimes Against Humanity and War Crimes Act, SC 2000, c 24, assented to 29 June 2000, entry into force 1 February 2002, claiming that it is an ‘Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts.’ 72 Art 1 of the Rome Statute provides that ‘An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.’ Many scholarly investigations have been produced on the domestic prosecution of international crimes as a reflection of the complementarity principle. See eg JK Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press, 2008); C Stahn and MM El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press, 2011); NN Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate, 2011); D Bernard, Beyond Hierarchy: Standard of Review and the Complementarity of the ICC (Oxford University Press, 2014); K Ambos, The Colombian Peace Process and the Principle of Complementarity of the ICC: An Inductive, Situation-based Approach (Springer, 2010).

20  Introduction been cited by other courts, it is argued that this would not per se measure the effects produced by such citation practices.73 In fact, just as the existence of rules of customary international law cannot be measured in quantitative terms (the practice of 100 states could be considered just as customary as the practice of 150), similarly there is no clear numerical threshold that would certify the acceptance of a certain normative content as correct. Such an analysis can only be evaluative. By looking at both international and national jurisdictions, the book accounts for the dynamic and multidimensional character of courts’ argumentative practices across a plurality of jurisdictions confronted with the interpretation of like substantive provisions. Further, it enables the material scrutinised to be systematised according to conceptual models (incrementalism and revisionism; entrapment and creativity) that present judicial citation as a structuring device, as well as to appreciate the techniques used by international courts to discriminate among national judicial decisions.74 While this research unfolds within the ambit of international criminal law, and puts forward arguments primarily on the basis of material drawn from the field of international criminal law, some of the contentions advanced herein may prove useful for theorising formative processes of international law at large. Being concerned with the formative process of international criminal law, this research situates itself in the realm of public international law and assumes an international law perspective. This does not per se imply that legal constraints that are the quintessence of penal law, such as the principle of legality or the prohibition of analogy in criminal matters, will not be considered. Rather, such specificities will be looked at for their strength in legal argumentation, rather than from a penal point of view stricto sensu. The distinctive trait guiding the book’s analysis is the expressed use of judicial decisions,75 in line with the two considered path-direction processes of stabilisation of and departure from an interpretive acquis. While, on the one hand, the reiteration of judicial decisions has strengthened them as reference points in the argumentative practice of international law, ensuring legal stability, predictability and consistency in later cases; on the other hand, change was displayed precisely in the rupture with such an accrued interpretive past. Critical in this practice has been the use of judicial decisions as epistemic tools, which invites us to look at courts76 as producers of knowledge on international law, and at judicial decisions as the vehicle of knowledge dissemination. 73 Cf U Šadl and H Palmer Holsen, ‘Can Quantitative Methods Complement Doctrinal Legal Studies? Using Citation Network and Corpus Linguistic Analysis to Understand International Courts’ (2017) 30 Leiden Journal of International Law 327. 74 See ch 4, section I. 75 ‘Citing’ entails an element that renders the cited judicial decision visible. In principle, ‘citation’ refers to the expressed invocation of a judicial decision. 76 The term ‘courts’ is deliberately generic so as to include both international and national courts. Nuances between different courts will be acknowledged in due course.

Book Outline  21 V.  BOOK OUTLINE

Following this introduction, chapter 2 establishes the theoretical layout underpinning the book, which stands on two intertwined pillars. The first pillar concerns the theoretical approach to international law and relies on a Scandinavian legal realist outlook with a Rossian footprint.77 Such a theoretical orientation explains and justifies the centrality ascribed to the judge throughout this inquiry, and the emphasis on judicial decisions rather than alternative discursive material (eg scholarly textbooks). This theoretical layout considers that legal reasoning is constitutive of the concept of law underpinning the present investigation. As such, it problematises the role played by discretion in the interpretation of international law. The second pillar concerns legal argumentation78 and is informed by the oeuvres of two cardinal, to some extent antithetical, figures. First, it accounts for Neil MacCormick’s work on the role of deduction and logical syllogism in legal reasoning, particularly as conceptualised in Rhetoric and the Rule of Law.79 Secondly, it draws from Chaïm Perelman’s counter-view on formal logic in legal reasoning and on rhetorical (non-logical) arguments in legal argumentation, as articulated in Traité de l’Argumentation – La Nouvelle Rhétorique80 and in his later work Logique juridique: Nouvelle rhétorique,81 which focuses on persuasion as the function of rhetoric.82 Perelman’s argumentation theory is a study on non-compelling argumentation, which particularly lends itself to be applied in the practice of using judicial decisions (ie noncompelling arguments) in international law adjudication. Chapter 2 suggests reconciling these two prima facie incommensurable positions, by advocating them as complementary dimensions of legal argumentation: first, the dimension of logical syllogism in which the judge coherently deduces inferences from given premises according to a formal logical decision-making process, and where logic obscures the role of discretion; secondly, the dimension of persuasion, which

77 Alf Ross was the founder of Scandinavian legal realism in Denmark, while Axel Hägerström, Karl Olivercrona and Anders Vilhelm Lundstedt were the main proponents of this jurisprudential approach in Sweden. 78 At present, there appears to be no scholarly work in a monograph format on discretion in ­international law. 79 N MacCormick, Rhetoric and the Rule of Law (Oxford University Press, 2005). This book marks a turning point in the work of MacCormick, in that it conceives of legal reasoning as a constitutive element of his concept of law, which no longer appears a positivist one. On the point, see S Bertea, ‘Rethoric and the Rule of Law: An author’s day with Neil MacCormick – Law and legal reasoning’ (2008) 59 Northern Ireland Legal Quarterly 5, 6. 80 C Perelman and L Olbrechts-Tyteca, Traité de l’Argumentation – La Nouvelle Rhétorique (Presses des universitaires de France, 1958). 81 C Perelman, Logique juridique: Nouvelle rhétorique (Dalloz, 1976). 82 Iain Scobbie, one of the few scholars to introduce Perelman’s theory of argumentation to an audience of international scholars, defines him as an ‘undeservedly under-rated theorist of legal reasoning’. See I Scobbie, ‘Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice’s Wall Advisory Opinion’ (2006) 5 Chinese Journal of International Law 269, 276.

22  Introduction is concerned with the strength of arguments chosen by the judge to justify a specific decision in law. While the former is concerned with whether the inference of conclusions from premises is formally correct, the latter is concerned with the extent to which the proposed arguments are convincing. Chapter 3 zooms in on the case of international criminal law as a branch of public international law, and considers the role of national courts as counterparts of international courts in the adjudication of international crimes. The argumentation framework enables re-imagining them beyond formal structures. Building on the theoretical layout in chapter 2, chapter 4 develops the entrapment argument. By examining judicial decisions as arguments in legal argumentation, it shows how courts enabled the stabilisation of an interpretive acquis. As interpretation aims to convince through argumentation, the iterative use of judicial decisions is dealt with as an indicator of the arguments that have been accepted by courts as most convincing. As such, chapter 4 focuses on the perceived relevance of prior judicial decisions through the courts’ descriptive statements, in order to examine the weight that courts have ascribed to previous judicial decisions on points of international law in their legal argumentation. Taking the cues from the claims made in the preceding chapter, chapter 5 engages with the rewriting of international law as a moment of rupture with the past (liberation argument). In conceptualising change in legal argumentation, chapter 5 showcases the argumentative techniques that enabled courts to depart from previously established courses of action and thus to affirm new reasons for action. Chapter 6 builds on the link between international law and legal argumentation to articulate an ontological claim about legal reasoning in international law. Such a claim is historically situated and draws from the judicialisation era, that is, the multiplication of judicial fora interpreting international law and the relative increased production and dissemination of judicial decisions. The ontological claim contends that legal reasoning in international law operates as a field of knowledge where prior judicial decisions are used as epistemic tools in courts’ decision-making.

2 Courts and the Argumentation of International Law

A

study on the use of judicial decisions in international law argumentation is premised on the idea that judicial decisions matter. The reason for this is not only based on simple empirical observations but is intimately linked to the theoretical framework informing this inquiry, which ascribes to the judge a central role in expressing authoritatively what international legal rules mean. It is thus readily acknowledged that what is elected as the object of one’s inquiry may inherently depend on the concept of international law one subscribes to – implicitly or explicitly, self-consciously or not. The purpose of following sections is hence to share – to the best of this author’s capabilities – the premises that lie at the foundation of the project and that reflect on the very questions pursued in this book. I.  A LEGAL REALIST PERSPECTIVE ON COURTS

In international law – like in law in general – the meaning of rules and principles is often a matter of contention.1 For instance, a state may argue that Article 51 of the UN Charter allows it to act in self-defence against non-state actors, while another state may claim that Article 51 is only concerned with inter-state use of force. In a legal order, courts are typically regarded as super partes with respect to the legal matter to be adjudicated.2 If this were not so, states, individuals or other relevant subjects would not seise a court to settle a legal dispute or decide on a case. Hence, courts’ interpretation may be seen as representing a standard of correctness on which actors can rely in a social and legal context. Courts

1 Rudolph von Jhering, for instance, argued that law is created and used instrumentally. See R von Jhering, The Struggle for Law (repr Union NJ Lawbook Exchange, 1997). 2 Eric Posner notes that the court is a central institution in all legal systems, entrusted with the interpretation of the law. This function ‘is of great importance, because no law is self-explanatory; there are always ambiguities. If there were no courts … there would be a danger that executive ­officials would interpret the law in self-serving ways.’ Posner argues that courts perform this role if two conditions are met: (i) if judges have expertise; (ii) if judges are impartial, ie that they decide cases on ‘their legal merits alone’. See EA Posner, The Perils of Global Legalism (University of Chicago Press, 2009) 164–65.

24  Courts and Argumentation of International Law appear to perform an important role in that they interpret international legal rules – in our example, Article 51 of the UN Charter – offering an authoritative statement of the law.3 The fact that this statement is authoritative does not necessarily mean that the interpretation of Article 51 is a legally correct one, nor that it is the most correct one in absolute terms. It means that it has weight insofar as actors may rely on it as an authoritative statement of the meaning of the law in their argumentation. The claim based on such judicial decision will appear more correct than other plausible ones that, on the contrary, are not supported by judicial decisions. As such, exploring the use of judicial decisions by courts does not aim to ascertain whether the meaning assigned by courts to legal provisions is correct, but rather to describe what courts understand as a correct interpretation of the law, in the practice of adjudicating international law. The behaviour of judges in adjudicating the law is at the centre of realist approaches to legal science4 in that, as a social fact, it can be empirically observed and described in terms of norm-descriptive propositions.5 These propositions are descriptive of how judges believe legal subjects ought to behave, and are distinguished from norm-expressive propositions, which are instead concerned with how legal subjects ought to behave.6 The distinction between normdescriptive and norm-expressive propositions was used by the Scandinavian legal realist Alf Ross to capture the twist between what the content of law is and what it is understood to be.7 For Ross, ‘The judicial decision is the pulse of legal life, and it is here that the analysis of the legal sources comes into play.’8 3 Questions of authority are dealt with in ch 5. For the purpose of this section, it suffices to mention that the authority derives from qualities such as the position, the mandate and the ­competence of a court within a legal order. 4 Cf Oliver Wendell Holmes Jr cited in J von H Holtermann, ‘Introduction’ in A Ross, On Law and Justice (edited and with an introduction by J von H Holtermann; translated by U Bindreiter) (Oxford University Press, 2019), xxviii: ‘The prophecies of what the courts will do in fact, and ­nothing more pretentious, are what I mean by the law.’ This is acknowledged as a trait used to explain the kinship between American and Scandinavian legal realism. 5 On the point, see J von H Holtermann, ‘Naturalising Alf Ross’s Legal Realism – A Philosophical Reconstruction’ (2014) 24 Revus: Journal of Constitutional Theory and Philosophy of Law 1, 5. By reference to Gottlob Frege, Holtermann refers to the so-called ‘propositional attitude report’, ie an agent A believes/claims that P [proposition]. 6 A Ross, On Law and Justice (University of California Press, 1959) 10; U Bindreiter, ‘The Realist Hans Kelsen’ in L Duarte d’Almeida, J Gardner and L Green (eds), Kelsen Revisited – New Essays on the Pure Theory of Law (Hart Publishing, 2013) 101–29, 108; Holtermann, ‘Naturalising Alf Ross’s Legal Realism’ (n 5) 5; J von H Holtermann and MR Madsen, ‘What is Empirical in Empirical Studies of Law? A European New Legal Realist Conception’ (2016) 4 Retfaerd 3, 14–15. 7 Ross, On Law and Justice (n 6) 10; Bindreiter, ‘The Realist Hans Kelsen’ (n 6) 101–129, 108; J von H Holtermann, ‘A Straw Man Revisited: Resettling the Score Between Herbert LA Hart and Scandinavian Legal Realism’ (2017) 57 Santa Clara Law Review 1, 15–18. Notably, Alf Ross was not concerned with law-making arguments but with the extent to which the doctrinal study of law could be a science. Ross’s objective was to conceive of an ‘epistemologically sound doctrinal legal science developed on the basis of criteria for science asserted by logical empiricism’. See Holtermann, ‘Introduction’ (n 4) xxiv. 8 A Ross, A Textbook of International Law – General Part (Longmans, Green and Co, 1947; repr, 2006, 2013) 80.

A Legal Realist Perspective on Courts  25 In his theory, source of law stands for ‘the general factors (motive components) which guide the judge when fixing and making concrete legal content in judicial decisions.’9 The way legal rules are interpreted thus justifies decisions in law and shapes legal realities. In a similar vein, exponents of the New Legal Realist approach to international law contend that ‘legal meaning is not autonomous of legal practice’.10 In describing the main tenets of this theoretical strand, Gregory Shaffer maintains that legal realists focus on two behavioural aspects of law: as empiricists – the world of facts, including material resources, social structures, and institutionalised practices, that explain how law operates; and as pragmatists – the context-shaping nature of law to address problems through reason. In this way they aim to build an explanatory theory of law as a form of reasoning in particular factual contexts for practical purposes – thus engaging simultaneously the normative and the empirical grounded in human experience.11

The New Legal Realism is empirically oriented12 and does not conceive of law as a process of policy decision-making – as, for example, the American legal realism of Myres McDougal and Harold Lasswell (the ‘New Haven School’) would do.13 Rather, it appreciates that the meaning of international law is constructed through practice and that it does not always coincide with the meaning that a doctrinal approach to law would produce.14 Pursuant to this approach, courts’ authoritative statements of the law have the potential to condition the understanding of legal rules and principles and orient legal argumentation towards certain argumentative structures, because of the normative force they exert. The expression ‘normative force’ refers to the capability of influencing relevant actors’ understanding as to how they ought to behave. Therefore, courts may be seen as crucial actors in shaping perceptions about the correct interpretation of the law vis-à-vis relevant actors.

9 Ibid (original emphasis). 10 G Shaffer, ‘The New Legal Realist Approach to International Law’ (2015) 28 Leiden Journal of International Law 189, 195–96. 11 Ibid 195. 12 G Shaffer, ‘New Legal Realism and International Law’ in H Klug and S Engle Merry (eds), The New Legal Realism – Studying Law Globally (Cambridge University Press, 2016) 145–59, 147: ‘[W]hat is new in the new legal realism is … the empirical turn in legal scholarship and developments in empirical methods. While legal realists called for greater empirical work, so that the practice (and thus the meaning) of law would be better understood in context, they were less accomplished in practicing what they preached.’ 13 HD Lasswell and MS McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (Martinus Nijhoff, 1992). McDougal defines law as ‘a process of authoritative decision by which the members of the community clarify and secure their common interests’ (ibid xxi). 14 Moreover, unlike the International Legal Process (ILP) school initiated by Abram Chayes, Thomas Ehrlich and Andreas Lowenfeld, no focus on values informing decision-making is predicated. Cf A Chayes, T Ehrlich and AF Lowenfeld, International Legal Process (Little, Brown and Company, 1968).

26  Courts and Argumentation of International Law The question of the degree of compatibility between a practice-based approach and doctrinal studies of law has raised some controversies between those who understand them as synergic and those who view them as antagonistic.15 One significant intervention contends that adopting a practicebased approach need not exclude the use of supplementary or complementary empirical data alongside doctrinal analyses of the law.16 The relationship between the two is a matter of degree and perspective. As explained by Jakob von H Holtermann and Mikael R Madsen, three ideal-types may be used to sketch such a relationship. The first ideal-typical relationship is termed ‘toleration’ and indicates that empirical studies of law support doctrinal law, with the latter in a position of superiority. The second ideal-type is called ‘synthesis’ and portrays the interaction between the two as mutually enlightening and beneficial, conducive to a better understanding of the law. The third ideal-type is that of ‘replacement’, indicating that co-existence of the two is not possible and empirical studies replace doctrinal law as a premise for understanding international law.17 It is thus important to acknowledge that a practice-based analysis of the law does not per se equate to reductionism, nor to a suspension of a doctrinal understanding of law. The three ideal types reflect three fundamentally different positions with regard to the autonomy of doctrinal law vis-à-vis empirical legal studies, and the effects produced by the latter. In other words, the dividing lines run between the following groups: those contending that empirical practices should be understood through doctrinal law; those submitting that doctrinal law should be understood through empirical practices; and those advocating that law is ultimately made by practices. Pursuant to the latter, very little can be said about the law without examining relevant practices. The present work embraces a synthetic, middle-ground – or ‘balanced’ in the words of Brian Tamanaha – approach to the study of law through practices.18 Such an approach is characterised by having ‘two integrally conjoined aspects – a skeptical aspect and a rule-bound aspect’.19 The former refers to the fact that the law is not a complete set of rules, that flaws and limitations are possible, 15 Conventionally, the emergence of the struggle between law as a coherent, autonomous and comprehensive system of legal rules and law as practice-based, instrumental, contextual and adaptive discipline situates itself in the 1920s and 1930s when American Legal Realism came to be articulated as a stream of thought critiquing more traditional approaches to law. See R Summers, ‘Pragmatic Instrumentalism in Twentieth Century American Legal Thought – A Synthesis and Critique of Our Dominant General Theory About the Law and Its Use’ (1981) 66 Cornell Law Review 861; P Schlag, ‘Formalism and Realism in Ruins (Mapping the Logics of Collapse)’ (2009) 95 Iowa Review 195, 199–200. 16 J von H Holtermann and MR Madsen, ‘Toleration, Synthesis or Replacement? The “Empirical Turn” and its Consequences for the Science of International Law’ (2016) 29 Leiden Journal of International Law 1001, 1005–07. 17 Ibid. 18 BZ Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2010) 6. 19 Ibid.

A Legal Realist Perspective on Courts  27 and that judges can make choices, sometimes influenced by their subjective preferences.20 However, this does not entail that judges adjudicate international law according to their own free will, feeling, or without reasoning,21 nor that legal interpretation should be reduced to power or politics.22 This ‘skeptical’ aspect is balanced by a rule-bound aspect, which recognises that ‘judges abide by and apply the law; that there are practice-related, social, and institutional factors that constrain judges; and that judges render generally predictable decisions consistent with the law’.23 Hence, even if one were to conceive of international law in a formalist way, as a set of legally binding rules and principles, the crux would still rest with understanding how those rules and principles are interpreted as a matter of process. It ensues that, in order to contrast ‘law in books’ with ‘law in action’, a legal realist necessarily must maintain a doctrinal approach to law as a background assumption, namely that courts would adjudicate legal issues based on the applicable legal sources, as jurists would typically do, and that they would legally decide rationally.24 In this light, Ross defined the ‘law in force’25 as ‘the abstract set of normative ideas which serve as a scheme of interpretation for the phenomena of law in action … [which are effectively followed] because they are experienced and felt to be socially binding’.26 As such, courts’ legal interpretation is not confined to an exercise of political ideology but has to be understood instead from the point of view of judges adjudicating on the basis of the relevant applicable law. In the case of the present study, this would translate into investigating how judges have actually used prior judicial decisions in the process of adjudicating international law, bearing in mind relevant prescriptions on applicable law, such as Article 38(1)(d) of the Statute of the International Court of Justice (ICJ Statute)27 or Article 21 of the 20 Ibid. 21 Ibid 1. 22 Shaffer, ‘The New Legal Realist Approach to International Law’ (n 10) 206–07. 23 See Tamanaha, Beyond the Formalist-Realist Divide (n 18). Tamanaha rightly notes, by referring to Karl Llewellyn, that some legal realist exponents already argued that judicial decisions are determined by legal factors, opposing the ‘corrosive effect of facile skepticism about judging’ (ibid 7). 24 A Aarnio, Reason and Authority (Ashgate, 1997) 72–73. 25 The expression ‘valid law’ has also been used in the English translation from the Danish language. On the point, see ibid 68. What both ‘law in force’ and ‘valid law’ arguably aim to indicate is the idea of law that produces effects. In his original Danish oeuvre, Ross uses two distinctive terms that are not well captured in the English translation of On Law and Justice, namely, ‘gyldig ret’, which corresponds to the ‘correct law’/‘true law’, and ‘gældende ret’, which refers to the ‘law in effect’/‘law in force’. On the point, see Holtermann, ‘A Straw Man Revisited’ (n 7) 23–24. In the latest translation of On Law and Justice, the two expressions are translated as ‘valid law’ and ‘scientifically valid law’, respectively. For a thorough discussion see J von H Holtermann, ‘A note on the translation of “gyldig” and “gældende ret” as “valid” and “scientifically valid law”’ in A Ross, On Law and Justice (edited and with an introduction by J von H Holtermann; translated by U Bindreiter) (Oxford University Press, 2019) l-lv. 26 Ross, On Law and Justice (n 6) 17–18. 27 Statute of the International Court of Justice, signed on 26 June 1945 and entered into force on 24 October 1945, TS No 993.

28  Courts and Argumentation of International Law ICC Statute. Legal formalism is thus not dismissed; rather, it is seen as necessary to explain the judicial decision-making process.28 The purpose of the present practice-based inquiry is thus to describe and explain how the meaning of international law, as constructed by courts, yields effects, and changes over time by reference to prior judicial decisions.29 To some extent, this approach diverges from Ross’s attempt to produce a predictive theory about judges’ behaviour based on norms internalised by the judges and that the judges consider binding upon themselves, which are observable retrospectively.30 Yet it converges with it in that, alongside predicting judges’ behaviour, Ross intended its legal science to describe and explain judicial behaviour too.31 Combining the external (descriptive) and the internal (normative) perspectives to judicial practices, the latter requiring a background assumption on how courts would go about deciding a legal question, enables one to overcome the criticism of reductionism that is said to generally feature in legal realist approaches.32 Such criticism imputes to legal realists the reduction of law to a behaviouristic science by overlooking its normative dimension.33 Nevertheless, the reductionist criticism is rebutted by the fact that judicial decisions result from a process of interpretation and application of legal rules and principles, thereby necessarily hinging on the normative content of those rules and principles.34 Indeed, the normative dimension gives significance to the practicebased analysis.35 II.  DISCRETION IN LEGAL INTERPRETATION

To some extent, the clarity of a legal text and determinacy of language are a fiction, as different, simultaneous, optional and plausible meanings, which 28 In this regard, the New Legal Realism departs from the New Haven School approach, which has been associated with critiques against legal formalism. WM Reisman, ‘International Lawmaking: A Process of Communication’ (1981) 75 ASIL Proceedings 101; SR Ratner and A-M Slaughter, ‘Appraising the Methods of International Law: A Prospectus for the Readers’ (2004) 36 Studies in Transnational Legal Policy 1, 6. For an overview of the New Haven School’s tenets, see A Bianchi, International Law Theories (Oxford University Press, 2016) 91ff. More generally on American Legal Realism, see Tamanaha, Beyond the Formalist-Realist Divide (n 18) 1: ‘[American] legal realists discredited legal formalism, demonstrating that the law is filled with gaps and contradictions, that the law is indeterminate … The realists argued that judges decide according to their personal ­preferences and then construct the legal analysis to justify their desired outcome.’ 29 Cf Shaffer, ‘The New Legal Realist Approach to International Law’ (n 22) 201. 30 The predictive purpose of legal science promoted by Alf Ross has given rise to some criticism, for it does not seem to allow for criticising the courts’ activity. Among critical voices, see HLA Hart, The Concept of Law (Oxford University Press, repr 1994) 146–47. 31 Aarnio, Reason and Authority (n 24) 68. 32 See inter alios HLA Hart, ‘Scandinavian Realism’ (1959) 17 The Cambridge Law Journal 233. 33 On the point, see ch 6, section V. 34 Cf Shaffer, ‘The New Legal Realist Approach to International Law’ (n 10) 196. 35 Ross himself analogised law with a chess game – the same analogy used by HLA Hart to criticise legal realists as reductionist. On the point, see Holtermann, ‘A Straw Man Revisited’ (n 7) 9.

Discretion in Legal Interpretation  29 conform to the legal text, are available to an interpreter.36 In this context, indeterminacy of the language refers to the property of a written utterance, or set of utterances, to be interpreted in more than one way.37 Compromise between parties often translates into indeterminate language and parties’ intending different meanings for the same term, and this is not necessarily clarified by interpretive declarations. As put by Philip Allott, ‘a treaty is a disagreement reduced to writing’.38 In this light, the assumption that the text would be a clear message of a uniform intention of the parties would require some mitigation. Choosing one among possible alternatives – yet hinging on the rules of interpretation – is within the discretion ascribed to the interpreter and hence entails an element of subjectivity. Throughout this study, discretion is used to indicate the measure or range of choice that the interpreter enjoys in terms of possible courses of action (or interpretive outcomes) that are considered in conformity with the law.39 ‘Discretion commonly exists in law where its “open texture” creates a level of indeterminacy that can leave policymakers (and judges) with multiple interpretive choices.’40 As the research unfolds in the context of courts’ adjudication, reference is made to ‘interpretive discretion’ or ‘judicial discretion’ interchangeably, to indicate the measure or range of choice that the judge/court enjoys in terms of possible interpretive outcomes that can be deemed in conformity with the law. Again, the hurdle is to what extent it is possible to discern whether a choice is a subjective one or a judgment guided by objective factors.41 36 This prise-de-conscience is shared among positivist scholars too. On the point, see G Hernández, ‘Interpretation’, in J Kammerhofer and J d’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, 2014) 317–348, 326. 37 In claris non fit interpretatio [in clarity there is no room for interpretation]. The expression is generally attributed to Cicero, who developed it in a legal context. See S Masuelli, ‘In claris non fit interpretatio – Alle origini del brocardo’ (2002) II Rivista di Diritto Romano 401. 38 P Allott, ‘The Concept of International Law’ (1999) 10 European Journal of International Law 31, 43. 39 Notably, issues of discretion arise in areas of international law other than legal interpretation. For instance, David Kaye discusses discretion in the context of state decision-makers confronted with threats and claiming state self-defence: ‘Because we are in the realm of human judgment, ­typically in crisis environments, third party reviews should account for perceptions and judgments. But how do third parties assess claims to self-defense if the law allows room for judgment and discretion? How is discretion appropriately cabined so as not to swallow the law itself? Or better yet, how is the subjective element of perception and judgment rationalised with the goals of objectivity inherent in law? In the context of personal self-defense, George Fletcher [G Fletcher, Basic Concepts of Criminal Law (1998), 103] argues that neither pure subjectivity nor pure objectivity are appropriate. That is, neither complete deference to actor perceptions nor a rigid approach to objectivity in rules achieves the goals of the law. Rather, Fletcher “hold[s] a combined or mixed theory of justification: Both the objective elements and ‘justificatory intent’ are required”.’ See D Kaye, ‘Adjudicating SelfDefense: Discretion, Perception and the Resort to Force in International Law’ (2005) 44 Columbia Journal of Transnational Law 134, 166. 40 Ibid 169. For examples of discretion in adjudicative practice, see U Linderfalk, ‘Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making’ (2015) 26 European Journal of International Law 169, 175–79. The expression ‘open texture’ was famously used in HLA Hart, The Concept of Law (Clarendon Press, 1961). 41 N MacCormick, Rhetoric and the Rule of Law – A Theory of Legal Reasoning (Oxford University Press, 2005) 249.

30  Courts and Argumentation of International Law For instance, one might argue that the parties to a treaty intended to leave that range of possible meanings open to the interpreter and that they deliberately envisaged ‘constructive ambiguities’ in the legal text. This may be owing to the fact that states conclude international treaties – for example, the Convention on the Prevention and Punishment of the Crime of Genocide – with an eye to the future, so that they are able to survive historical and political contingencies. The intention of the parties is thus fundamental when engaging with an ‘evolutive’ interpretation of terms contained in a treaty. In principle, engaging in such an act with the purpose of giving effect to the treaty would only be possible if the parties originally intended to give certain terms, and hence their obligations, an ‘evolutive’ connotation.42 Yet, instead of situating that range of possible meanings in the original intention of the parties, some scholars impute it to a hermeneutical process between the text and its interpreter. The hermeneutical moment, being part of everyone’s subjective experience, necessarily results in different outcomes that vary according to the interpreter.43 At the core of hermeneutics rests the act itself of interpreting as a process of sense-making.44 Legal interpretation is hence far from being a mathematical enterprise that may grant uniform understanding of legal rules when approached by different interpreters. This is the case not just because interpretation involves – actually or potentially, overtly or covertly – a subjective element, which by definition varies according to the interpreter,45 but also because the act of interpreting may be conceived of differently by different interpreters. Different ways of understanding the act of interpreting an international legal text have a bearing on what an interpreter is entitled and expected to do, and the range of discretion he/she admittedly enjoys.46

42 See J Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Routledge, 2011) 98; ibid 127–28, maintaining that a text is in principle static: ‘international treaty law is the text which remains; therefore, its meanings remain. The correct temporal reference point is ex tunc; anything else constitutes a change.’ As will be shown by the analysis of the thematic areas considered for this research (ch 4), the notion of ‘armed conflict’, which replaced the term ‘war’ used in international law instruments up until the 1949 Geneva Conventions were concluded, arguably lends itself to considerations of dynamic interpretation. 43 D Kennedy, ‘The Turn to Interpretation’ (1985) 58 Southern California Law Review 251. See also Hernández, ‘Interpretation’ (n 36) 317–48, 326. 44 H-G Gadamer, Truth and Method (Continuum, 1989); D Peat and M Windsor, ‘Playing the Game of Interpretation – On Meaning and Metaphor in International Law’ in A Bianchi, D Peat and M Windsor (eds), Interpretation in International Law (Oxford University Press, 2015) 3–33, 13; O Korhonen, ‘New International Law: Silence, Defence or Deliverance?’ (1996) 7 European Journal of International Law 1. 45 Practical illustrations of this are judges’ dissenting opinions and courts deciding by non-­ unanimous majority. 46 As Lauterpacht puts it, the rules of interpretation are ‘not the determining cause of judicial decisions, but the form in which the judge cloaks a result arrived at by other means’. H Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 26 BYIL 53.

Discretion in Legal Interpretation  31 Against this background, justification allows an exercise of discretion to appear reasonable rather than arbitrary if it meets the average expectations of a justified decision in law. Rules on interpretation are to be understood from this perspective, as arguments to justify a choice of interpretation in law rather than as instruments to find the correct interpretation. To justify the exercise of discretion means to provide reasons for undertaking one course of action rather than another. Reasonableness may be defined as the standard against which conduct is considered normal or in accordance with average expectations. The assessment of the justification, available on a case-by-case basis, may thus occur by reference to principles such as reasonableness.47 Importantly, justification for choosing one course of action rather than another allows the law to maintain claims of autonomy from other realms such as politics. It is contended here that whether or not a justification meets the standard of reasonableness is a matter of acceptance by, inter alia, other courts engaged in like matters. As this inquiry shows, prior judicial decisions play a role in making the justification of the choice of course of action reasonable to an audience. An inquiry into judicial discretion is essentially an inquiry into principled or unprincipled ways of interpreting law (hence adjudicating cases) and justifying choices. As such, a court (international and national alike) that adjudicates on like legal matters will likely refer to prior findings considered justified in law. Inquiring into the practice of judicial citation will hence be conducive to appraising the ‘process of justification’.48 A.  Rule-Bound Justification In international law, the interpretation of international treaties is governed by legal rules codified in the 1969 Vienna Convention on the Law of Treaties (VCLT).49 These rules are regarded as customary international law,50 and are as such applicable even to international treaties concluded before the entry into force of the VCLT on 27 January 1980. For instance, Article 31(1) VCLT provides that a treaty shall be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.

47 Kaye, ‘Adjudicating Self-Defense’ (n 39) 171. 48 Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press, 1978) 270. 49 Vienna Convention of the Law of Treaties, concluded on 23 May 1969, and entered into force on 27 January 1980, 1155 UNTS 331 (VCLT). 50 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 94; Avena and Other Mexican Nationals (Mexico v United Slates of America) (Judgment) [2004] ICJ Rep 12, para 83; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene (Judgment) [1990] ICJ Rep 92, para 48.

32  Courts and Argumentation of International Law Although Articles 31–33 VCLT deal specifically with the interpretation of international treaties, the same canons have been applied to legal texts other than international treaties, such as UN Security Council resolutions51 and the statutes of international criminal courts and tribunals.52 What is more, international criminal tribunals and courts have applied the VCLT to interpret international treaties to which their statutes make express renvoi, for example Common Article 3 to the Geneva Conventions, the 1948 Genocide Convention,53 the 1984 Convention against Torture,54 the European Convention on Human Rights,55 and the 1926 Slavery Convention,56 as well as to other international treaties that were considered ‘relevant’57 in relation to their applicable law. The fact that legal interpretation is regulated by rules does not make it a purely mechanical process, in which the achievement of the same result is ensured by simply resorting to the tenets laid down in the VCLT. All the more often, legal literature has come to acknowledge the intrinsic subjective elements involved in legal interpretation. An instance that may entail an appreciation by the interpreter is offered by Article 31(3) VCLT. The relevant paragraph of this provision stipulates as follows: ‘There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.’ Such a formulation seems to leave some leeway to the judge to construe the context of the legal rule to be interpreted, based on what constitutes ‘a relevant rule of international law’. This does not mean that the judge has a free range of choice to determine ‘relevant rules’, in that such

51 Prosecutor v Tadić, (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995), paras 32 et seq. On the point, see M Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck Yearbook on the United Nations Law 73. 52 Prosecutor v Slobodan Milošević (Decision on Preliminary Motions) ICTY-02-54 (8 November 2001), para 47: ‘the Statute of the International Tribunal is interpreted as a treaty’. Prosecutor v Nyiramasuhuko et al (Judgment) ICTR-98-42-A (14 December 2015), para 2137: ‘The Appeals Chamber recalls that, while the Statute “is legally a very different instrument from an international treaty”, it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law.’ Prosecutor v Bemba (Trial Judgment) ICC-01/05-01/08 (21 March 2016), paras 75–86 and cited jurisprudence (para 75): ‘The Appeals Chamber clarified that the interpretation of the Statute is governed, first and foremost, by the VCLT, specifically Articles 31 and 32.’ The application of the VCLT to the Rome Statute has generated a scholarly debate for possible conflict with the principle of legality. On the point, see D Akande, ‘Can the ICC Prosecute for Use of Chemical Weapons in Syria?’ EJIL:Talk!, 23 August 2013, and contributions by KJ Heller and D Jacobs. See also D Jacobs, ‘International Criminal Law’ in Kammerhofer and d’Aspremont (eds), International Legal Positivism in a Post-Modern World (n 36) 451–74. 53 See ch 4. 54 See eg Prosecutor v Kunarac et al (Judgment) ICTY-96-23-1/A (12 June 2002), paras 142 et seq. 55 See eg Procesutor v Furundžija (Judgment) ICTY 95-17/1-A (21 July 2000), paras 179 et seq, interpreting Art 6 of the European Convention on Human Rights (right to a fair trial). 56 See eg Kunarac et al Appeal Judgment (n 54) paras 117 et seq. 57 For instance, Art 5 of the ICTY Statute does not make express reference to the 1948 Genocide Convention but envisages the very same definition of genocide codified in the Convention. Likewise, Art 2 ICTR Statute and Art 6 ICC Statute.

Discretion in Legal Interpretation  33 choice would require a legal justification. It does serve, however, to emphasise that different interpreters may deem different rules to be relevant and, based on that, may come to significantly different interpretive outcomes. Likewise, combining the ordinary meaning of the text, the context, the object and purpose, and the (implied) intention of the parties, which the judge shall consider pursuant to Article 31 VCLT, lends itself to be appreciated by the i­nterpreter in potentially different ways.58 For instance, the primacy of a textualist approach has been maintained by the ICJ in its jurisprudence, whilst affirming that the first duty of a tribunal called to interpret and apply the provisions of a treaty is ‘to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur’.59 This formulation, known as the principle of the natural and ordinary meaning,60 entails that treaties shall be interpreted as they stand, on the basis of their text.61 Judicial discretion is arguably restrained by the principle of good faith, which has been defined as giving rise to a ‘duty not to exercise a legal power in an ­arbitrary, capricious or unconscionable manner’.62 Good faith is linked to the ‘legal security’, certainty, foreseeability in and of international law, and to the sense of trust that is at the basis of an international society. As Robert Kolb puts it, the duty to honour the confidence created is at the root of the contractual bond (pacta sunt servanda, good faith) … It stands to reason that such a duty is intimately linked with notions of justice and correctness.63

Mutatis mutandis, a judge interpreting statutory provisions, or international treaties that are relevant to the applicable law, must ensure legal security, certainty and foreseeability. As such, the principle of good faith provides a basis on which

58 Article 31(1) VCLT, providing that a treaty shall be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, represents a compromise (the so-called ‘crucible’) between two positions: the textualist position, advocated by Gerald Fitzmaurice, supporting the primacy of the legal text; and the intentionalist position, sustained by Hersch Lauterpacht, contending for the privacy of the ­intention of the parties. For an overview of the sequence of drafts on interpretation in international law proposed by different rapporteurs of the Institut de droit international in the 1950s, see A Bianchi, ‘The Game of Interpretation in International Law – The Players, the Cards, and Why the Game is Worth the Candle’ in Bianchi, Peat, and Windsor (eds), Interpretation in International Law (n 44) 34–60, 46–49. 59 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep 4, 8; Interpretation of Peace Treaties (Second Phase) [1950] ICJ Rep 221, 227; Asylum case (Colombia v Peru) (Judgment) [1950] ICJ Rep 266, 279. 60 G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice. Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 BYIL 1, 9–22. 61 O Dörr, ‘Article 31’ in O Dörr and K Schmalenbach (eds), Vienna Convention on the Law of Treaties – A Commentary (Springer, 2018) 521–70, 565. 62 JF Connor, Good Faith in International Law (Dartmouth, 1991) 88. Notably, Robert Kolb draws a taxonomy of meaning of the principle of good faith. R Kolb, Good Faith in International Law (Hart Publishing, 2017) 23ff. 63 Kolb, Good Faith in International Law (n 62) 25–26.

34  Courts and Argumentation of International Law the interpretive outcomes of judges in international law are reviewed. Similarly, other general principles of law may be invoked to restrain the discretion of a judge in his/her decision-making process, such as the principle of legality64 and in dubio pro reo,65 which are quintessential in criminal justice. The plurality of fora that can potentially exercise jurisdiction over international crimes leads to a plurality of interpreters, of rules of interpretation and of interpretive approaches. While the international criminal tribunals for the former Yugoslavia and for Rwanda displayed a tendency to resort to the customary rules of the VCLT to interpret their Statutes, as well as definitions of crimes drawn from international treaties in force (eg the 1949 Geneva Conventions), judges operating in a national setting are generally more familiar with national rules and methods of interpretation than with the rules set forth in the VCLT. Yet international law demands that states comply with their international obligations, and give effect to the treaties in force, in good faith (Article 26 VCLT). As long as the application of national rules will not lead to an interpretive outcome that is not in compliance with international law obligations,66 national courts retain their margin of discretion.67 It is worth observing that this does not necessarily translate into the sword of universalism, since judges in every jurisdiction, be it international or national, retain their discretion in the interpretation of international legal rules. It emphasises, however, the importance of preserving the essence and the rationale of the international crimes.68 This aspect was 64 Cf Art 22 ICC Statute. As international criminal law was largely uncodified before the establishment of the IMTs of Nuremberg and Tokyo, the principle of substantive legality (lege certa, in terms of foreseeability) prevailed over the principle of formal legality (lege scripta) in the adjudication of international crimes. See IMT, Göring et al, Trial of the Major War Criminals, 1 October 1946, 219; IMTFE, Araki et al, 1 November 1948; in BVA Röling and CF Rüter (eds), The Tokyo Judgment (Amsterdam University Press, 1977), cited in A Cassese, Lineamenti di diritto internazionale penale, I – Diritto sostanziale (Il Mulino, 2005) 190–91. As noted by Sergey Vasiliev, the aspects of lege proevia, lege stricta, lege certa and lege scripta ‘do not attract a uniform understanding and equal emphasis in different legal traditions. … The Strasbourg jurisprudence does not regard lege scripta as indispensable for the compliance with the nullum crimen principle as reflected in Article 7 of the ECHR [European Convention on Human Rights].’ See S Vasiliev, ‘The Making of International Criminal Law’ in C Brölmann and Y Radi (eds), Research Handbook on the Theory and Practice of International Lawmaking (Edward Edgar, 2016) 354–94, 354. 65 See eg Prosecutor v Limaj et al (Judgment) ICTY-3-66-A (27 September 2007), para 21. It should be noted that the Appeals Chamber relies extensively on judicial decisions to justify the application of the same principle, thus suggesting that they indeed play a role in the Court’s reasoning. 66 C Schreuer, ‘The Interpretation of Treaties by Domestic Courts’ (1971) 45 BYIL 255, 264, noting that domestic courts typically rely on domestic methods of interpretation. Domestic methods of interpretation refer to textual, systemic, teleological, authentic (intention of the drafters), as well as historical methods. 67 The limit to the discretion of municipal law is set, as recalled above, by Art 27 VCLT, which provides that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. This treaty provision corresponds to the well-established principle of international law pacta sunt servanda, ensuring the primacy of international law obligations over national law. See Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12, para 57. 68 L van den Herik and C Stahn (eds), The Diversification and Fragmentation of International Criminal Law (Brill, 2012) 42–43.

Discretion in Legal Interpretation  35 stressed by the ICTR in Bagaragaza,69 in which both the Trial Chamber and the Appeals Chamber dismissed the Prosecutor’s request to transfer the accused to Norway for trial. The reason for the dismissal was the lack of legal basis in the Norwegian criminal legislation to bring charges for acts of genocide for which Bagaragaza was indicted before the ICTR. Norway would have tried the defendant on multiple counts of the ordinary crime of murder,70 defeating the rationale and international character of the crime of genocide, which is ‘to protect specifically defined groups, whereas the penalisation of homicide protects individual lives’.71 As will be shown in the course of this book, the use of judicial decisions in courts’ argumentation has deformalised the way in which international law comes under the national purview. In this vein, phenomena of legal interpenetration have rendered the divide between international and national law less relevant,72 and have put the emphasis on the authority that such decisions may exert.73 As Nijman and Nollkaemper noted, ‘the quest for new (sources of) authority and the deformalisation of law all contribute to the transcending or circumventing of the divide between national and international law.’74 Although acknowledging that the application of the VCLT rules of interpretation would enable national courts to justify their interpretive outcomes by reference to arguments that are recognised as legitimate in the interpretation of international treaties (eg object and purpose of the treaty, intention of the parties, systemic integration),75 still, whether national courts use the VCLT rules of interpretation

69 Prosecutor v Bagaragaza (Appeal Chamber’s ‘Decision under Rule 11bis’) ICTR-05-86 (30 August 2006); Prosecutor v Bagaragaza (Trial Chamber’s ‘Decision on the Prosecution Motion for Referral to the Kingdom of Norway’) ICTR-05-86 (19 May 2006), paras 14–16. Notably, judicial decisions are cited to support the decision: Prosecutor v Stankovic (Appeal Chamber’s Decision on Referral of Case under Rule 11bis) ICTY-96-23/2-A (17 May 2005); Prosecutor v Mejakić et al (Decision on Joint Defence Appeal Against Decision on Referral under Rule 11bis) IT-02-65-A (7 April 2006); Prosecutor v Paško Ljubičic (Decision on Appeal Against Decision on Referral Under Rule 11bis) ICTY-00-41-A (4 July 2006); Prosecutor v Gojko Jankovic (Decision on Rule 11bis Referral) IT-96-23/2-A (15 November 2005). 70 Bagaragaza Appeal Chamber’s ‘Decision under Rule 11bis’ (n 69), para 13: ‘Norway acknowledges that Norwegian criminal law does not explicitly contain the crime of genocide. However, it submits that on ratifying the 1948 Genocide Convention, its Parliament considered it unnecessary to enact implementing legislation as all conduct prohibited under the convention was already criminal under existing provisions of its criminal law. Norway explains that, according to its legal tradition, its laws are drafted in a general manner, but interpreted in light of both its international legal obligations as well as relevant legislative history.’ 71 Ibid para 18. 72 J Nijman and A Nollkaemper, ‘Beyond the Divide’ in J Nijman and A Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press, 2007) 341–60, 359. 73 Cf A Nollkaemper, National Courts and the International Rule of Law (Oxford University Press, 2010) 246: ‘A decision has authority to the extent that it can generate acceptance of its findings by other relevant actors.’ 74 Nijman and Nollkaemper, ‘Beyond the Divide’ (n 72) 341–60, 359. 75 This in part addresses the question of the desirability of applying common rules of interpretation, raised by some. For instance, Michael Waibel considers that ‘the ILC and the Vienna conference

36  Courts and Argumentation of International Law rather than national rules of interpretation may eventually prove of little relevance in practice, if national courts defer to international judicial decisions when adjudicating on points of international criminal law. B.  Choosing between Competing Courses of Action The practice of international criminal tribunals offers an insight into the scope of discretion involved in legal interpretation, and into the ways in which choices have been justified in adjudication. Following Resolution 827/1993, which established the ICTY, a UN SecretaryGeneral’s Report (‘the Report’)76 was approved to delineate matters such as applicable law. The Report, in line with relevant UN Security Council resolutions,77 affirmed the competence of the ICTY ‘to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. This body of law exists in the form of both convention and customary law.’78 The Secretary-General considered that the application of the principle nullum crimen sine lege requires that the tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of the adherence of some but not all states to specific conventions does not arise.79

Reference was subsequently made to the 1949 Geneva Conventions, the 1907 Hague Convention (IV) and annexed Regulations, the 1948 Genocide Convention and the Charter of the IMT in Nuremberg, as conventional instruments that beyond doubt were part of customary international law.80 Further, the Secretary-General detailed the categories of international crimes falling under the material jurisdiction of the ICTY, namely grave breaches of international humanitarian law, serious breaches of international humanitarian law, crimes against humanity and genocide.

gave limited consideration to the question of why interpretive principles were normatively desirable’ except for ‘brief references to legal certainty and the need for convergence in treaty interpretation’. See M Waibel, ‘Principles of Treaty Interpretation: Developed for and Applied by National Courts’ in HP Aust and G Nolte (eds), The Interpretation of International Law by Domestic Courts – Uniformity, Diversity, Convergence (Oxford University Press, 2016) 9–33, 12. See also P-M Dupuy, ‘Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility’ (1999) 10 European Journal of International Law 371, 379. 76 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution, S/25704(1993). 77 S/RES/808(1993); S/RES/827(1993). 78 S/25704(1993) (n 76) para 33. 79 Ibid para 34. 80 Ibid para 35.

Discretion in Legal Interpretation  37 Three elements are noteworthy for the scope of judicial discretion conferred on the ICTY judges. First, neither the UN Security Council nor the UN SecretaryGeneral qualified the nature of the armed conflict in the former Yugoslavia. Secondly, the instruments considered by the Secretary-General all apply in international armed conflict, with the exception of one provision, Common Article 3 of the Geneva Conventions. Thirdly, the crimes under the material jurisdiction of the Tribunal encompass grave breaches – which are a specific category of unlawful conduct criminalised under the 1949 Geneva Conventions – as well as violations of the laws and customs of war – on the basis of the Hague Regulations and the recognition of their criminalisation under international law by the Nuremberg Tribunal.81 Jurisdiction over grave breaches and violations of the laws and customs of war is provided by Articles 2 and 3 of the ICTY Statute, respectively. Against this background, the question arose, notably in the first ICTY proceedings against Duško Tadić, as to whether the Tribunal would have jurisdiction over violations of the laws and customs of war, committed in time of non-international armed conflict.82 An affirmative answer would necessarily entail that the offence is not only prohibited, but also criminalised under international law in non-international armed conflicts. The Appeals Chamber approached the interpretation of the Statute by reference to methods of interpretation, that is literal, teleological, logical and systemic interpretation, as well as by making reference to elements echoing the VCLT, such as the intention of the UN Security Council and the relevance of the Report prepared by the UN Secretary-General and adopted by the Security Council. Prima facie, at least two positions could be advocated. First, following the UNSC Resolution and the Report of the Secretary-General, it may be inferred that the Tribunal is mandated to adjudicate over grave breaches and violations of the laws and customs of war committed in international armed conflicts – formally applicable only in international armed conflicts. Given the ample reference to these instruments as amounting ‘beyond any doubt’ to customary international law, this possibility appears justifiable. A second possibility considers instead that, since the UN Security Council did not qualify the armed conflict, the Tribunal is only restrained by the letter of the Statute, which provides jurisdiction over grave breaches to the Geneva Conventions and violations of laws and customs of war. As long as the criminalisation of violations of the laws and customs of war can be grounded in treaty law or customary international law, the Tribunal would be able to claim jurisdiction over those violations committed in non-international armed conflicts. No recognition had been made that violations of the laws and customs of war are criminalised in non-international armed conflicts under international law. 81 Ibid paras 37–45. 82 At that time no international humanitarian instrument would prima facie criminalise violations of rules applicable in conflicts other than inter-state ones.

38  Courts and Argumentation of International Law Indeed, after a very rich and articulated interpretation of Article 3 of the ICTY Statute, the Appeals Chamber found: 91. Article 3 thus confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5 [of the Statute]. Article 3 is a fundamental provision laying down that any ‘serious violation of international humanitarian law’ must be prosecuted by the International Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable.83

By virtue of the judicial decisions of the IMT in Nuremberg, which stated that ‘a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches’,84 of the practice of fewer than 10 states (ie Germany, New Zealand, the United States, the United Kingdom, Yugoslavia, Bosnia and Herzegovina, and Belgium) and of opinio juris inferred from unanimously adopted UN Security Council resolutions, the Appeals Chamber held as follows: 129. Applying the foregoing criteria to the violations at issue here, we have no doubt that they entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts. Principles and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognised as the mandatory minimum for conduct in armed conflicts of any kind. No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.85

The Chamber thus concluded by determining a rule of customary international law imposing criminal liability for serious violations of Common Article 3.86 The notion of crimes against humanity, under Article 5 of the ICTY Statute, is illustrative of similar considerations. Tadić argued that the Nuremberg Charter defined crimes against humanity as requiring a nexus to an international armed conflict. The same formulation of crimes against humanity as committed ‘in the execution of or in connection with any crime against peace or any war crime’ was upheld in the codification of the Nuremberg Principles by the UN General Assembly.87 The defendant hence contended that the same formulation should apply in the proceedings before the ICTY, in observance of the principle

83 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 51), para 91. 84 See The Trial of Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Part 22, at 445, 467 (1950) cited in Tadić Decision on Interlocutory Appeal on Jurisdiction (n 51), para 128. 85 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 51), para 129. 86 Ibid para 134. 87 Affirmation of the Principles of International Law recognised by the Charter of the Nurnberg Tribunal, UN General Assembly Resolution 95(I), 11 December 1946, A/RES/1/95.

Discretion in Legal Interpretation  39 nullum crimen sine lege.88 Instead, the Appeals Chamber affirmed that this nexus was a jurisdictional element for the IMT in Nuremberg and not a constitutive element of the crime: 140. As the Prosecutor observed before the Trial Chamber, the nexus between crimes against humanity and either crimes against peace or war crimes, required by the Nuremberg Charter, was peculiar to the jurisdiction of the Nuremberg Tribunal. Although the nexus requirement in the Nuremberg Charter was carried over to the 1948 General Assembly resolution affirming the Nuremberg principles, there is no logical or legal basis for this requirement and it has been abandoned in subsequent State practice with respect to crimes against humanity. Most notably, the nexus requirement was eliminated from the definition of crimes against humanity contained in Article II(1)(c) of Control Council Law No 10 of 20 December 1945. (Control Council Law No 10, Control Council for Germany, Official Gazette, 31 January 1946, at p 50.) The obsolescence of the nexus requirement is evidenced by international conventions regarding genocide and apartheid, both of which prohibit particular types of crimes against humanity regardless of any connection to armed conflict.89

Based on the aforementioned evidentiary elements, the ICTY concluded by declaring the rule of customary international law according to which the nexus is no longer a requirement: 141. It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary international law. There is no question, however, that the definition of crimes against humanity adopted by the Security Council in Article 5 comports with the principle of nullum crimen sine lege.90

Through these examples, two points are worth mentioning in the context of our discussion of discretion. First, it is possible to appreciate that the judge had more than one course of action to take, but chose to follow one rather than the other for a particular reason for action. Assessing whether this reason for action is based on the law, that is, falls within the scope of discretion conferred on the judge, is not an easy task, as the judge, by way of legal argumentation, would present it as legally grounded. For instance, by virtue of ensuring legal certainty and predictability, it can be argued that the ICTY would have to uphold the definition of crimes against humanity formulated in the Charter of the Nuremberg Tribunal and codified in



88 Tadić

Decision on Interlocutory Appeal on Jurisdiction (n 51), paras 139–40. para 140. 90 Ibid para 141. 89 Ibid

40  Courts and Argumentation of International Law the ‘Principles of International Law recognised by the Charter of the Nuremberg Tribunal’ adopted by the UN General Assembly resolution. Notably, this would have favoured the position of the defendant, by adding an additional constitutive element to prove charges of crimes against humanity. The ICTY justified its course of action by claiming that there is ‘no logical or legal basis’ for the requirement. Reference was made to the Control Council Law No 10, namely, a law issued to give effect to the London Agreement, whereby the Occupying Powers in Germany could initiate criminal proceedings against alleged perpetrators of crimes of the Nazi regime.91 The nexus was further considered obsolete. The Chamber did not provide a wealth of explanation for this position but referred to two international conventions (ie the Convention on the Prevention and Punishment of the Crime of Genocide and the International Convention on the Suppression and Punishment of the Crime of Apartheid)92 that proscribe types of underlying offences not requiring the nexus. As reported in the literature, the Nuremberg Charter required a nexus between crimes against humanity and the armed conflict, because crimes against humanity were conceived as a residual clause for war crimes.93 Notably, laws and customs of war were designed to protect a state’s own civilians, and a violation against them would have been a matter of national rather than international law. As many of the crimes committed by Nazi Germany were perpetrated against its own population, a category of crime was warranted that would apply regardless of the nationality of the victims (including stateless individuals). The nexus with the war was also necessary to justify the adjudicative action of the tribunal for acts committed, inter alia, in the German territory and concerning German nationals (although stripped of their nationality), hence an interference in the domestic affairs of a state. Instead, the elision of the nexus between crimes against humanity and the armed conflict would entail that crimes committed against any civilian 91 Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and Against Humanity, Nuremberg Trials Final Report Appendix D: ‘In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal, the Control Council enacts as follows: Article I – The Moscow Declaration of 30 October 1943 “Concerning Responsibility of Hitlerites for Committed Atrocities” and the London Agreement of 8 August 1945 “Concerning Prosecution and Punishment of Major War Criminals of European Axis” are made integral parts of this Law.’ 92 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 51), para 140, referring to the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Art 1, and the International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, 1015 UNTS 243, Arts 1 and 2. 93 E Schwelb, ‘Crimes against Humanity’ (1946) 23 BYIL 178, 207: ‘Concerning the first principle, assumed to be implied in the Charter, according to which international law contains penal sanctions against individuals guilty of inhumane acts, which are applicable not only in time of war but also in time of peace, it is clear that what has been introduced by the Charter are not international criminal provisions of universal application, but provisions concerning a crime which may be described as subsidiary or accessory to the traditional types of war crimes.’

Courts’ Argumentation: Between Logic and Persuasion  41 population, whether in peace or in wartime, are of concern to the international community. Any civilian population is under the protection of international law. This was the achievement that the ICTY wanted to mark by affirming that nowadays ‘there is no logical or legal basis for the requirement’. It appears that the Appeals Chamber in Tadić favoured a course of action, arguably based on the reason that international criminal law protects individuals, irrespective of state sovereignty. As contended by Bin Cheng, ‘since discretion implies subjective judgment, it is often difficult to determine categorically that the discretion has been abused’.94 And here there is no intention to contest the finding of the Chamber. The intention is rather to show the courses of action available to the judge and how a reason for action – if expressed – is justified. The second element to be noted relates to the second limb of the Appeals Chamber’s reasoning, which marks an important shift. From the interpretation of Article 5 of the ICTY Statute it moved on to ascertain the existence of the customary rule providing that crimes against humanity do not require a connection to international armed conflict. It follows a clear and incontrovertible statement that Article 5 codifies the customary definition of crimes against humanity. The fact that this finding is so clearly enunciated is an indication of the Chamber’s prospective attitude in that pronouncements of international customary law have a bearing that exceeds the individual case of Tadić. This section has sought to illustrate, by reference to concrete cases, the possible and plausible courses of action with which an interpreter may be confronted, and hence how fluid the constraints to discretion may be. Whilst law (eg rules of interpretation) may restrain judicial discretion, the choice in determining the court’s course of action is justified by more or less intelligible reasons for action. Setting categorical boundaries to the interpreter’s discretion does not appear viable; in fact, it would be detrimental for the law itself not to be able to adapt over time. III.  COURTS’ ARGUMENTATION: BETWEEN LOGIC AND PERSUASION

The adjudication of international criminal law involves interpreting and applying relevant legal rules to certain facts. As such, courts seised with a legal case identify the material facts and the relevant applicable law, and justify their holdings by way of legal arguments. In a judicial decision, which results from the adjudicative process, the judge rationally explains why a certain interpretation

94 B Cheng, General Principles of International Law as Applied by International Courts and Tribunals (Stevens & Sons, 1953) 133–34; D Kaye, ‘Adjudicating Self-Defense’ (n 39), 170.

42  Courts and Argumentation of International Law of the law is more correct than other possible ones. This expression of reasons is argumentative.95 Judicial decisions embed reasons for action expressed by judges. Reasons for action indicate ‘facts which show what is good in action’.96 However, reasons for action may have a more profound meaning in that they may hinge on fundamental aspects of the law.97 As such, judicial decisions have a role to play as a basis to justify action in law, to persuade or to illustrate that a certain interpretation of international criminal law is the most correct one among others. In light of the discretion conferred upon them as interpreters of the law, courts are in a special position to choose reasons for action and steer subsequent interpretive practices around that reason. For instance, the judge may choose to uphold reasons for action hinging on ‘human dignity’, or rather reasons ensuring the respect of the principle of legality.98 This process is evaluative, as different reasons are at the judge’s disposal when deciding a case. Two dimensions of a judicial decision ought to be distinguished here: (i) a logical-deductive or syllogistic one, in which the judge coherently derives inferences from given premises according to a formal logical decision-making process; and (ii) an argumentative dimension, in which the judge chooses the arguments that are most persuasive.99 Such a distinction does not mean that logical-deductive processes are disentangled from legal argumentative ones. On the contrary, their complementarity in the actual adjudication of law is necessary to justify a finding in law. Such complementarity may be explained by the fact that, while the logical-deductive process is concerned with whether the inference of conclusions from premises is formally correct, the legal argumentative process is concerned with the extent to which the proposed arguments are convincing. As courts do not operate in a vacuum, they are cognisant of the fact that their judicial decisions will be scrutinised by an audience, including the parties to the case.100 They thus engage in choosing arguments that best convince an audience of the correctness of their findings. In this context, judicial decisions

95 C Perelman and L Olbrechts-Tyteca, Traité de l’Argumentation – La Nouvelle Rhétorique (Presses Universitaires de France, 1958). 96 J Raz, Between Authority and Interpretation (Oxford University Press, 2010) 204. 97 Aulis Aarnio distinguishes different levels of understanding of the legal order, including on what ground law is determined and the basis of those grounds. These levels of understanding precede interpretation. See Aarnio, Reason and Authority (n 24) 54–55. 98 See eg Prosecutor v Furundžija (Judgment) IT-95-17/1-T (10 December 1998), paras 183–84. 99 For an articulation of the distinction between rhetoric (legal argumentation) and logic, see D Frank and M Bolduc, ‘From Vita Contemplativa to Vita Activa: Chaïm Perelman and Lucie Olbrechts-Tyteca’s Rhetorical Turn’ (2004) 7 Advances in the History of Rhetoric 65. Chaïm Perelman is considered one of the main theorists of legal argumentation (termed ‘la nouvelle rhétorique’). Although he was a confirmed legal positivist, after the Second World War he turned to legal argumentation in critical contrast to formal logic and the role of reason in law. 100 F Zarbiyev, ‘Judicial Activism in International Law’ (2012) 3 Journal of International Dispute Settlement 247, 255.

Courts’ Argumentation: Between Logic and Persuasion  43 are instruments that have a bearing both on the logical-deductive process of the judge, for instance insofar as they limit his/her discretion in interpretation, as well as on his/her argumentative process, insofar as they may, for example, channel legal argumentation towards arguments accepted as correct in past decisions. In relation to this, it has been pertinently argued that whether a certain interpretation is correct ‘depends on how it fits with past practices as assessed by the next interpreter down the line. Interpreters in the present are tied to the past by interpreters of the future.’101 Legal argumentation is here defined as ‘a specialised form of rhetoric [that] is principally concerned with interpretation.’102 In explaining the distinctive traits of legal reasoning as opposed to other types of logical reasoning, Joseph Raz maintains the central role of interpretation, the systemic nature of law and the dependence on legal rules.103 Also, the specificity of legal argumentation may be articulated on the basis of two propositions: first, legal reasoning is concerned with practical questions (and decisions); second, these questions are argued under the claim of correctness.104 As Robert Alexy puts it, there is no claim that the normative statement asserted, proposed, or pronounced in judgments is absolutely rational, but only a claim that it can be rationally justified within the framework of the prevailing legal order.105

In the context of rhetoric and legal argumentation, interpretation is broadly understood as encompassing ‘interpretation of facts, of legal terms and concepts, of meaning and value, of what the law is meant to achieve …’.106 In this framework, the ultimate objective of interpretation is to persuade an audience that a certain given interpretation is the correct one.107 Since the audience determines whether a legal argument is regarded as a correct one, the argument needs to be persuasive for it to be understood as correct. In light of this, techniques of argumentation will be calibrated according to the audience, since persuasion – which is the function of rhetoric – is audience-dependent.108 The concept of audience can be more or less narrowly construed. In the context of international criminal law adjudication, a court’s audience may encompass the parties to the case, states, legal scholars, civil society, etc in a

101 M Winkler, ‘Die Normativität des Praktischen’ (2009) 64 Juristenzeitun 821, cited in I Venzke, ‘Sources and Interpretation Theories: The International Lawmaking Process’ in S Besson and J d’Aspremont (eds), Oxford Handbook on the Sources of International Law (Oxford University Press, 2017) 401–20, 408. 102 I Scobbie, ‘Rhetoric, Persuasion and Interpretation in International Law’ in Bianchi, Peat and Windsor (eds), Interpretation in International Law (n 44) 61–77, 64. 103 Raz, Between Authority and Interpretation (n 96) 204. 104 Cf R Alexy, A Theory of Legal Argumentation (Oxford University Press, 1989; repr 2010) 212–13. 105 Ibid 214. 106 Scobbie, ‘Rhetoric, Persuasion and Interpretation in International Law’ (n 102) 61–77, 64. 107 Bianchi, ‘The Game of Interpretation in International Law (n 58) 34–60, 36. 108 Cf C Perelman, Logique juridique – Nouvelle rhétorique (Dalloz, 1976) 107.

44  Courts and Argumentation of International Law combined or self-standing fashion. For the purposes of the present study, the audience of courts adjudicating international criminal law is construed as comprising other courts and tribunals adjudicating on similar legal or factual issues.109 Whether or not a legal argument is considered persuasive is a matter of acceptance of that argument by other courts and tribunals adjudicating on like points. International as well as national courts are regarded as constituting such an audience. Accordingly, a judge adjudicating on points of international criminal law seeks to convince an audience of relevant actors, for example other courts and tribunals engaged with similar subject matters, that a certain legal interpretation is the correct one among other plausible alternatives. To persuade, the judge submits arguments. Those arguments are chosen in light of the audience the judge in question wants to persuade and the context in which the act of persuasion takes place. In international law, arguments that may prove persuasive vis-à-vis an audience of courts could appeal to certain important features (or ‘values’) of a legal system, such as coherence, consistency, stability, predictability, equality, formal justice, etc. Similarly, arguments based on the object and purpose of an applicable international treaty, such as to prevent the commission of certain crimes, or arguments hinging on the intention of the parties may prove persuasive vis-à-vis an audience of international courts, and possibly national ones, too. In legal argumentation, further arguments consisting in invoking techniques of analogy or distinguishing in legal interpretation may succeed in convincing an audience of the legal correctness (or lack thereof) of an interpretation. The range of arguments that a judge will choose will hence be drawn from the possible, pertinent arguments that are expected to be convincing in international legal practice for relevant legal actors. The persistence of certain judicial decisions as reference points in the interpretive activity of courts may be explained with the notion of inertia developed by Chaïm Perelman in his studies on rhetoric and legal argumentation.110 According to Perelman’s theory, legal reasoning is a type of practical reasoning that is oriented towards attaining adherence of the audience, rather than establishing ‘objective truths’.111 In this, Perelman is critical of the logical-deductive process, allowing the inference of conclusions from major premises as if these were the only possible or correct ones. Perelman’s doctrine of inertia is germane for a reflection on the effects produced by the persistent reference to judicial decisions, standing for persuasive

109 This owes to the centrality of courts and of what they understand to be the content of the law. Cf ch 2, sec I. 110 Perelman and Olbrechts-Tyteca, Traité de l’Argumentation (n 95) 142–44; C Perelman, The Idea of Justice and the Problem of Argument (Routledge & Kegan Paul, 1963) 86; C Perelman, New Rhetoric and the Humanities (Reidel, 1979) 131. 111 On the point, see Scobbie, ‘Rhetoric, Persuasion and Interpretation in International Law’ (n 102) 61–77, 73.

Courts’ Argumentation: Between Logic and Persuasion  45 or correct arguments. For Perelman, deviation from a given interpretation necessitates justification – the burden is on contra arguments – as a manifestation of the ‘law of inertia’. The point is interesting for its explanatory potential of the concept of ‘established jurisprudence’ used in some judicial decisions.112 Typically, a court adjudicating a legal case is required to justify its findings by way of legal arguments. It is in principle for the court to show that its interpretation is a correct one. In other words, the court bears the burden of justifying its decision. However, the existence of a line of past decisions alters this state of affairs in at least two ways: first, in the justification that a court aligning with prior judicial decisions has to provide; secondly, in the way in which a court seeking to depart from prior decisions needs to justify such departure. Perelman introduces the notion of reversal of burden, affirming that prior argumentative structures are presumed to be correct until the contrary is proved: On peut présumer, jusqu’à preuve du contraire, que l’attitude adoptée antérieurement – opinion exprimée, conduit préférée – se continuera dans l’avenir, que ce soit par désir de cohérence ou grâce à la force de l’habitude. (…) En fait, l’inertie permet de compter sur le normal, l’habituel, le réel, et de le valoriser, qu’il s’agisse d’une situation existante, d’une opinion admise ou d’un état de développement continu et régulier. Le changement, par contre, doit être justifié; une décision, une fois prise, ne peut être renversée que pour des raisons suffisantes.113

The fact that departure from prior argumentative structures requires (weighty) justification makes it difficult for later courts to set a different course of action and, at the same time, makes it easier to justify a decision following the same course of action by reference to prior decisions. Given this shift in the burden of justification, Perelman observes that a judge will seek to present an interpretation that departs from a prior course of action as an interpretation that instead fits, and perhaps develops further, the courses of action taken by prior judicial decisions.114 Interestingly, on several occasions, international courts and tribunals have expressed the existence of a norm requiring justification for departing from prior jurisprudence, which epitomises the law of inertia in the terms described

112 See eg Prosecutor v Stanisić and Župljanin (Judgment) ICTY-08-91-A (30 June 2016), discussed later. 113 Translation by this author: ‘It may be presumed, until proof to the contrary, that the attitude previously adopted – expressed opinion, preferred conduct – will continue in the future, whether for the sake of coherence or the force of habit. (…) In fact, the inertia makes it possible to count on the normal, the usual, the real, and to value it, whether it is an existing situation, an accepted opinion or a state of continuous and regular development. Change, on the other hand, must be justified; a decision, once taken, can only be reversed for sufficient reasons.’ Perelman and Olbrechts-Tyteca, Traité de l’Argumentation (n 95) 142. 114 Ibid 143: ‘[L]a justification du changement et l’argumentation tendant à montrer qu’il n’y a pas eu de changement ne s’adressent pas, en principe, au même auditoire. Mais l’une comme l’autre tendent au même but, qui est de répondre aux exigences de l’inertie dans la vie sociale.’

46  Courts and Argumentation of International Law by Perelman.115 A good illustration is offered by the ICTY in the Stanisić & Župljanin case,116 in which the Appeals Chamber asserted: 598. … the Appeals Chamber recalls that it is not bound by the findings of other courts – domestic, international, or hybrid – and that, even though it will consider such jurisprudence, it may nonetheless come to a different conclusion on a matter than that reached by another judicial body. The Appeals Chamber considers that in order to constitute a cogent reason for departing from its established jurisprudence on a matter, the party advocating a departure would need to show that a non-binding opinion of another court is the correct law and demonstrate that there is a clear mistake in the Appeals Chamber’s approach. (…)117

This passage establishes that the burden rests on contra arguments to prove that another court’s interpretation is a correct one and that the Appeals Chamber has committed a clear mistake. More precisely, the requirements to depart from ‘established jurisprudence’, as articulated by the Chamber, demand that another court’s interpretation is shown as the correct one; that the interpretation reiterated in the ‘established jurisprudence’ is mistaken; and that such mistake is a clear one – which seemingly echoes the notion of ‘manifest’. By introducing this norm, the Appeals Chamber controls the structure of argumentation, and implicitly determines how likely it is within that jurisdiction to depart from prior judicial decisions. In particular, by indicating the relevance it ascribes to external judicial decisions, the Chamber preserves its scope of discretion. The notion of ‘established jurisprudence’ reflects the continuity in the reproduction of past judicial decisions, and the idea of safeguarding uniformity, predictability and formal justice, against forms of arbitrariness in legal interpretation.118 The perpetuation of prior interpretive outcomes results in the ‘technique du précédent’.119 However, this applies vis-à-vis heterogenic resources, as the ‘established jurisprudence’ is set at constraint of the court’s scope of discretion, but does not bear on the supportive or justificatory means which the Chamber itself may choose from in its legal argumentation. Three propositions ensue from above. First, as legal argumentation aims to persuade an audience that a legal interpretation is the correct one, for the purposes of the present work an audience has been defined as comprising courts adjudicating international criminal law. As such, the persuasiveness of

115 Eg Prosecutor v Stakić (Judgment) ICTY-97-24-A (22 March 2006). 116 Stanisić and Župljanin Appeal Judgment (n 112). 117 Ibid para 598 (emphasis added). 118 P Bourdieu (Introduction by R Terdiman), ‘The Force of Law: Towards a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805, 833. 119 Perelman and Olbrechts-Tyteca, Traité de l’Argumentation (n 95) 144: ‘C’est grâce à l’inertie que la technique de la chose jugée se prolonge, pour ainsi dire, par la technique du précédent. La répétition du précédent ne diffère da la continuation d’un état existant que parce que les faits sont envisagés comme du discontinu’. Notably, this notion of precedent is articulated in the context of legal argumentation, and therefore is distinct from the notion of precedent, which may be articulated in the context of the doctrine of legal sources.

Governing Judicial Decisions  47 arguments – that is, whether an interpretation is regarded as a correct one – depends, among other things, on later courts adjudicating like cases. Secondly, the effects produced by prior judicial decisions – beyond the parties to the case – are determined by later judicial practice, with the exception of lower courts, which are bound to follow higher courts’ decisions within a jurisdiction. It is hence through the analysis of later decisions120 that is possible to reconstruct the effects produced by judicial decisions. Thirdly, as regards the use of judicial decisions, a distinction shall be made between the concept of authority, which depends on a court’s position, conferred competence, mandate, and the like, and a notion of authority which, within a system, rests on the belief that socially sanctions a court’s pronouncements as correct. An authority is authoritative not only because of its position and conferred power, but also because it has been socially accepted as such. Importantly, the fact that a judicial decision stems from an authority, and is hence authoritative, does not mean that a court would not strive to persuade an audience of the correctness of its decision. In fact, judges – though authoritative within a given legal order – typically seek to provide convincing reasons for their interpretation and decision in a case. Whether prior judicial decisions are followed as a matter of authority, as a matter of persuasiveness of the legal argumentation, or both, would reside with courts’ appreciation. Moving from this, this inquiry approaches the logical-syllogistic dimension and the dimension of persuasion as complementary. The former is concerned with whether the inference of conclusions from premises is formally correct from the logical point of view. The latter relates to the strength of the arguments chosen by the judge to justify a specific decision in law. IV.  GOVERNING JUDICIAL DECISIONS

At a horizontal level, international jurisdictions are prima facie separate and self-standing. The quintessential expression of this discrete set-up has been rendered by the Special Tribunal for Lebanon,121 confirming that judicial decisions issued by international criminal courts and tribunals do not in principle produce effects on one another: 41. [As compared to domestic law] things are different at the international level. (…) Courts and tribunals are set up individually by States, or by intergovernmental 120 Ie a retrospective analysis. 121 Based on its foundational document, the Tribunal qualifies as international. On 23 January 2007 and 6 February 2007, respectively, the Lebanese government and United Nations signed an agreement for the Special Tribunal for Lebanon. However, because of political frictions, the ratification of the agreement was never submitted to parliamentary approval. In April 2007, the majority of the Lebanese Parliament solicited the UN Secretary General to call on the UN Security Council to formally establish the Tribunal by resolution under Chapter VII of the UN Charter. By UN SC resolution 1757 (2007), the provisions of the agreement between Lebanon and the UN came into force on 10 June 2007.

48  Courts and Argumentation of International Law organisations such as the United Nations, or through agreements between States and these organisations, but they do not constitute a closely intertwined set of judicial institutions. Indeed, each tribunal constitutes a self-contained unit or, as has been said, ‘a monad that is very inward-looking’ or ‘a kind of unicellular organism’. There is neither a horizontal link between the various tribunals, nor, a fortiori, a vertical hierarchy. As was aptly noted in 1995 by the ICTY Appeals Chamber in Tadić (Interlocutory Appeal), international law ‘lacks a centralised structure, [and] does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralised or vested in one of them but not the others.’122

International criminal tribunals are thus seen as ‘des sortes de “monades” repliées sur elles-mêmes’,123 which function according to their own peculiar internal structure. As such, there is no formal mechanism of coordination or interaction between different international criminal tribunals or courts. Illustrative exceptions are offered by the ICTY and ICTR, which share the Appeals Chamber, and the SCSL, whose Statute provides, under Article 20(3): ‘The judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda (…).’ Despite the prescriptive formulation ‘shall’, this provision has been interpreted permissively, that is, not entailing an obligation, in conformity with the non-legally binding nature of judicial decisions under international law.124 Conversely, the ICC may, but need not, apply the principles and rules of law as interpreted in its own decisions, pursuant to Article 21(2) ICC Statute.125 Express reference is thus made to (internal)

122 In the Matter of El Sayed (Decision on Appeal of pre-trial Judge’s Order Regarding Jurisdiction and Standing) CH/AC/2010/02 (10 November 2010), para 41, citing Prosecutor v Tadić (Decision on Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995), para 11. 123 L Condorelli, ‘Jurisdiction et (dés)ordre judiciaire en droit international: Quelques remarques au sujet de l’arrêt du 2 octobre 1995 de la Chambre d’appel du TPIY dans l’affaire Tadić’ in R-J Dupuy (ed), Mélanges en l’honneur de Nicolas Valticos: Droit et Justice (Pedone, 1999) 281–86, 285. 124 Prosecutor v Sesay et al (Decision on the Prosecutor’s Motion for immediate protective measures for witnesses and victims and for non-public disclosure) SCSL-03-05-PT-038 (23 May 2003), para 11. On the point, see A Zammit-Borda, ‘Appraisal-Based and Flexible Approaches to External Precedent in International Criminal Law’ (2015) 28 Leiden Journal of International Law 643, 649–50. Judge Mohamed Shahabuddeen recalls that, before the SCSL was set up, the suggestion was made that the Appeals Chamber of the ICTY and ICTR also served as the appeal instance for the SCSL. See M Shahabuddeen, International Criminal Justice at the Yugoslav Tribunal: A Judge’s Recollection (Oxford University Press, 2012) 79–80. 125 Unlike the ad hoc tribunals, the Statute of the International Criminal Court sets for a provision on applicable law, namely Article 21 ICC Statute. Pursuant to it, the ICC shall apply, in the first place, the Statute, elements of Crimes and Rules of Procedure and Evidence; in the second place, applicable treaties, principles and rules of international law (a convoluted way of referring to customary international law); and, failing that, general principles of law derived from national laws of legal systems of the world. Article 21 further provides that ‘the Court may apply principles and rules of law as interpreted in its previous decisions.’

Governing Judicial Decisions  49 judicial decisions laid down by the ICC itself, as spelled out in Lubanga,126 while the Statute is silent on the use of (external) judicial decisions drawn from other jurisdictions.127 At a vertical level, a hierarchical institutional structure between higher and lower courts (that is, appeals and trial chambers; in some cases, as at the ICC, also pre-trial chambers) is instead typically established within individual international criminal jurisdictions.128 As affirmed by the jurisprudence of the ad hoc tribunals, judicial decisions issued by the Appeals Chamber are binding upon lower courts within the same international criminal jurisdiction.129 While appeal decisions are binding upon trial chambers as a matter of judicial hierarchical organisation,130 in Semanza the Appeals Chamber – common to the two ad hoc tribunals – clarified that, although it is not bound to follow its own prior decisions, it ‘should follow them in the interests of legal certainty and predictability’ and it ‘should be free to depart from them for cogent reasons in the interests of justice.’131 Similarly, in Karemera et al, the Appeals Chamber reiterated that ‘decisions of individual trial chambers have no binding force on other trial chambers. A trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it. (…) An error cannot be established by simply demonstrating that other trial chambers have exercised their discretion in a different way’,132 or, in other words, 126 Prosecutor v Lubanga (Trial Judgment) ICC-01/04-01/06 (14 March 2012), para 603. 127 Quantitative research demonstrates that the references to judicial decisions, both internal and external to the ICC system, significantly exceed references to applicable primary sources such as the Statute, international treaties, customary rules or principles of law. For instance, reference to judicial decisions approximately constitute 90% of the material referred at the trial and appeal level in the Situation in the Central African Republic. External judicial references include the case law of ad hoc tribunal jurisprudence, of the SCSL, and of the European Court of Human Rights. See S Manley, ‘Referencing Patterns at the International Criminal Court’ (2016) 27 European Journal of International Law 191, 207–10. 128 This has been the case for almost all international criminal jurisdictions established thus far. A notable exception where no appeal instance was envisioned was the Nuremberg International Military Tribunal (cf. Article 26 of the London Charter). On the point, see G Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity, 2007) 115. 129 Prosecutor v Aleksovski (Judgment) ICTY-95-14/1-A (24 March 2000). 130 On this point, see also Prosecutor v Kupreskić (Judgment) ICTY-95-16-T (14 January 2000), para 540: ‘(…) Hence, generally speaking, and subject to the binding force of decisions of the Tribunal’s Appeals Chamber upon the Trial Chambers, the International Tribunal cannot uphold the doctrine of binding precedent (stare decisis) adhered to in common law countries. Indeed, this doctrine among other things presupposes to a certain degree a hierarchical judicial system. (…)’ 131 Prosecutor v Semanza, Decision, ICTR-97-23-A (31 May 2000), para 92. This paragraph reproduces para 107 of the Aleksovski Appeal Judgment (n 129). See also Prosecutor v Semanza (Decision on a Request for Access and Review) MICT-13-36-R (9 April 2018), para 15. 132 Prosecutor v Karemera et al (Judgment) ICTR-98-44-A (29 September 2014), para 52. Notably, in footnotes 130–133, the Appeals Chamber cites ‘Lukić and Lukić Appeal Judgment, para 260; Aleksovski Appeal Judgment, para 114’; ‘Prosecutor v Théoneste Bagosora et al, Case Nos. ­ICTR-98-41-AR73 and ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para 33’; ‘Stakić Appeal Judgment, para 346’; ‘Lukić and Lukić Appeal Judgment, para 396’; ‘Prosecutor v Krnojelac Appeal Judgment ICTY-97-25-, paras 11-12; ‘Prosecutor v Mugenzi and Mugiraneza Appeal Judgment, paras 39, 43-46, 54-55’; ‘Prosecutor v Kalimanzira Appeal Judgment, paras 18-22’ (emphasis added).

50  Courts and Argumentation of International Law by the simple fact that a trial chamber, through the exercise of judicial discretion, has reached a different conclusion. The absence of formal structures does not however entail that judges have operated without cognisance of the jurisprudence of other tribunals and courts133 that had interpreted relevant legal rules and principles. As suggested by the above-mentioned examples, international courts have managed the deformalizing flow of judicial decisions by setting norms of argumentation. It is first and foremost in legal argumentation that the power of courts to channel legal interpretation has appeared most prominent. The question of the weight to ascribe to prior judicial decisions has emerged for instance in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) case before the International Court of Justice.134 The passage of special legal relevance considers the question of the status and position of the Federal Republic of Yugoslavia in relation to the ICJ Statute and to the Genocide Convention, at the moment of filing the application to the Court: 52. (…) Both Parties to the present case have cited these various decisions in support of their respective contentions. (…) 53. While some of the facts and the legal issues dealt with in those cases arise also in the present case, none of those decisions were given in proceedings between the two Parties to the present case (Croatia and Serbia), so that, as the Parties recognise, no question of res judicata arises (Article 59 of the Statute of the Court). To the extent that the decisions contain findings of law, the Court will treat them as it treats all previous decisions: that is to say that, while those decisions are in no way binding on the Court, it will not depart from its settled jurisprudence unless it finds very particular reasons to do so. As the Court has observed in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), while ‘[t]here can be no question of holding [a State] to decisions reached by the Court in previous cases’ which do not have binding effect for that State, in such circumstances ‘[t]he real question is whether, in [the current] case, there is cause not to follow the reasoning and conclusions of earlier cases’ [Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28]. 54. Furthermore, here the Parties are not merely citing previous decisions of the Court which might be regarded as precedents to be followed in comparable cases. The previous decisions cited here referred to the question of the status of a particular State, the FRY, in relation to the United Nations and to the Statute of the Court; and it is that same question in relation to that same State that requires to be examined in the present proceedings at the instance, this time, of Croatia. It would require compelling reasons for the Court to depart from the conclusions reached in those previous decisions.135 133 CPR Romano, ‘Deciphering the Grammar of International Jurisprudential Dialogue’ (2009) 41 International Law and Politics 755. 134 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections (Judgment) [1990] ICJ Rep 412. 135 Ibid paras 52–54 (emphasis added).

Governing Judicial Decisions  51 In particular, prior judicial decisions cited by the parties were laid down by the ICJ itself (internal judicial decisions), such as the Legality of the Use of Force (Advisory Opinion, 2004) (para 36), and the Bosnian Genocide case (Bosnia and Herzegovina v Yugoslavia, Preliminary Objections, 1996) (para 38). Three points are worth noting. First, the ICJ reaffirms the non-binding character of judicial pronouncements for the Court itself. Secondly, the Court affirms that it will not depart from its settled jurisprudence unless it finds very particular/ compelling reasons to do so.136 Interestingly, to assert this norm on the (in) capability of the ICJ jurisprudence to restrain its own decision-making, the Court refers to a prior adjudicated case, that is, the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, in which the same issue arose. Thirdly, the Court admits the possibility of judicial decisions being regarded as ‘precedents’ to be followed in ‘comparable’ cases. Nevertheless, the Court does not elaborate on how precedents could be singled out among the wealth of judicial decisions – that is, on what basis it would be possible to assess whether a case is comparable to a prior one – nor on what very particular/compelling reasons would mean. Hence, if on the one hand, the above cited passage demonstrates the Court’s sensibility towards the techniques of legal argumentation, on the other, it falls short of articulating its finding – namely that the Court is not bound by its decisions but will not depart from them unless compelling reasons demand it – on a legal basis but, ironically enough, cites a prior judicial decision. International criminal jurisdictions have also laid down norms guiding the use of judicial decisions. For instance, the ICTY Appeals Chamber in the Stakić case137 was confronted with the issue of whether a protected group could be ‘negatively defined’, that is, as all non-Serbs in a given municipality, instead of exhibiting certain positive characteristics. The Appeals Chamber observed that the Trial Chamber’s findings departed from the Trial Chamber’s legal reasoning in Jelisić without explanation. 19. (…) Rather, it held that the elements of genocide must be considered separately in relation to each specific group – in this case Bosnian Muslims and Bosnian Croats. In so holding, the Trial Chamber departed without explanation from the ‘negative approach’ taken by the Trial Judgement in Jelisić, an approach which consists of ‘identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group.’ The Jelisić Trial Chamber had found that approach ‘consistent with the object and purpose of the [Genocide] Convention’ as well as with the Commission of Experts Report. Following the Trial



136 Cf

different terminology used in paras 53–54. Appeal Judgment (n 115).

137 Stakić

52  Courts and Argumentation of International Law Chamber’s decision in the present case, the Brđanin Trial Chamber also rejected the Jelisić approach without explanation.138

However, the Appeals Chamber did not quash the Trial Chamber’s unjustified departure, as it was considered correct in law that the constitutive elements of the crime of genocide would be separately assessed for Bosnian Muslim and Bosnian Croats, instead of non-Serbs as a negatively defined group. Hence, although unjustified departure from previous judicial decisions was noticed and reported in the judgment, the holding of the Trial Chamber was regarded as correct. In the context of the case, it is worth noticing that the Prosecution appealed the Trial Chamber’s decision on the ground that it ‘offered no legal basis for explicitly rejecting the “negative approach” adopted by the Trial Chamber in Jelisić, an approach “which …is more entrenched than any other in the jurisprudence of the Tribunal and the ICTR.”’139 The Prosecution then cited Krstić and Rutaganda in support of the claim that ‘a protected group may be subjectively defined by the manner in which the alleged perpetrator perceived the group.’140 The Appeals Chamber considered misguided the interpretation of the cited cases by the Prosecution, as they would not allow identification of a protected group based on the sole subjective criteria, but did not contest the legal basis for its claim, namely prior judicial decisions.141 In fact, the Appeals Chamber further sustained the holding that a protected group cannot be identified solely by subjective criteria, by reference to the ICTR judicial decisions on the point: In the Musema Trial Judgement, para. 162, the Trial Chamber stated that ‘a subjective definition alone is not enough’. In the Semanza Trial Judgement, para. 317, the Trial Chamber held that ‘the determination of whether a group’ can be defined as a target group ‘ought to be assessed … by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators’ (emphasis in original). In the Bagilishema Trial Judgement, para. 65, the Trial Chamber was even more explicit, noting that the concept of a national, ethnical, racial, or religious group ‘must be assessed in light of a particular political, social,

138 Ibid para 19. See also Prosecutor v Stakić (Judgment) ICTY-97-24-T (31 July 2003), para 512, in which the paragraph dismissed by the Appeals Chamber reads as follows: ‘512. Article 4 of the Statute protects national, ethnical, racial or religious groups. In cases where more than one group is targeted, it is not appropriate to define the group in general terms, as, for example, “non-Serbs”. In this respect, the Trial Chamber does not agree with the ‘negative approach’ taken by the Trial Chamber in Jelisić: ‘A “negative approach” would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group’. Conversely, a targeted group may be distinguishable on more than one basis and the elements of genocide must be considered in relation to each group separately, eg Bosnian Muslims and Bosnian Croats. 139 Stakić Appeal Judgment (n 115), para 16. 140 Ibid. 141 Ibid para 25.

Governing Judicial Decisions  53 historical, and cultural context,’ and that membership in ‘the targeted group must be an objective feature of the society in question’.142

The issue of what weight courts have accorded to judicial decisions of higher chambers within an international criminal jurisdiction has been tackled by the ICTY Appeals Chamber in the Aleksovski case.143 After appraising the divergent approach of common law jurisdictions, where decisions of higher courts are binding on lower courts, and of civil law jurisdictions, in which no doctrine of binding precedent applies, the Appeals Chambers affirmed the binding character of the ratio decidendi of its decisions on Trial Chambers and grounds its view on the following points: 113. The Appeals Chamber considers that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers for the following reasons: (i) the Statute establishes a hierarchical structure in which the Appeals Chamber is given the function of settling definitively certain questions of law and fact arising from decisions of the Trial Chambers. Under Article 25, the Appeals Chamber hears an appeal on the ground of an error on a question of law invalidating a Trial Chamber’s decision or on the ground of an error of fact which has occasioned a miscarriage of justice, and its decisions are final; (ii) the fundamental mandate of the Tribunal to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law; and (iii) the right of appeal is, as the Chamber has stated before, a component of the fair trial requirement, which is itself a rule of customary international law and gives rise to the right of the accused to have like cases treated alike. This will not be achieved if each Trial Chamber is free to disregard decisions of law made by the Appeals Chamber, and to decide the law as it sees fit. In such a system, it would be possible to have four statements of the law from the Tribunal on a single legal issue – one from the Appeals Chamber and one from each of the three Trial Chambers, as though the Security Council had established not a single, but four, tribunals. This would be inconsistent with the intention of the Security Council, which, from a plain reading of the Statute and the Report of the SecretaryGeneral, envisaged a tribunal comprising three trial chambers and one appeals chamber, applying a single, unified, coherent and rational corpus of law. The need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing, and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regime in which cases are tried is even more pronounced.144



142 Ibid

fn 68.

143 Aleksovski 144 Ibid

Appeal Judgment (n 129), paras 112–14. para 113 (emphasis added).

54  Courts and Argumentation of International Law The Appeals Chamber further considers whether judicial decisions of Trial Chambers are binding on each other: 114. The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive. 115. The Appeals Chamber will now turn to consider the question raised by the Prosecution’s first ground of appeal.145

Indeed, instances in which lower courts are bound to follow the decisions of higher courts, as spelled out in the Aleksovski case cited above, shall be distinguished from instances in which later courts follow prior judicial decisions, whereas they are not bound to do so. While the former qualifies as a situation of bindingness determined by higher courts’ decisions upon lower courts, the latter mirrors a normative force exerted by prior judicial decisions on later courts faced with analogous cases. As clarified earlier in this Chapter, by normative force, reference is made to the capability of prior judicial decisions to influence the decision-making process of later courts, to the extent that departure from prior judicial decisions would be a reason for criticism. Accordingly, the normative force exerted by prior judicial decisions structures the deliberation about what later courts should do.146 The use of judicial decisions across jurisdictions underscores an informal way of interaction between different espaces juridiques in that it not only indicates that judges might understand international criminal law as a legal system,147 but it also illustrates how judges justified the use of prior findings in the absence of formal rules of coordination between different courts, and the weight they attached to different legal and extra-legal arguments.148 A.  Following Judicial Decisions: An Internal Perspective Another aspect which the jurisprudence of the ad hoc tribunals has helped clarify is which elements of prior judicial decisions should be followed by later decisions. The question engages several layers of complexity. First, traditionally 145 Ibid paras 114–15 (emphasis added). 146 Cf the definition of normativity provided by Nicole Roughan as ‘having the character of a norm … which has two integrated characteristics: it both sets a standard and (thereby) gives a reason for action … To treat a practice or rule as normative … is to treat it as both determining the status of its subjects’ conduct, and affecting their reasons for action.’ N Roughan, ‘Sources and the Normativity of International Law – From Validity to Justification’ in S Besson and J d’Aspremont (eds), The Oxford Handbook on the Sources of International Law (Oxford University Press, 2017) 680–700, 682. 147 B Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20 European Journal of International Law 265, 287. 148 J Bell, ‘Comparing Precedent’ (1997) 82 Cornell Law Review 1243, 1245–1246.

Governing Judicial Decisions  55 in judicial orders where the stare decisis principle finds application, the ratio decidendi is typically identified with the ‘authoritative element of a decision … which alone has the force of law.’149 The ratio decidendi is the component of the judicial decision that expresses the abstract legal principle on the basis of which the concrete case has been decided. As illustrated by the literature, identifying the ratio decidendi is far from an easy task and lends itself to the interpretation of the later judge, who can more or less narrowly construe it.150 Secondly, a legal determination of facts may also attract adherence of later decisions. Recognising that certain acts were committed in the context of an international armed conflict in one case, and not in another related case would be at odds with legal consistency and coherence. Is legal determination of facts to be followed by later judicial decisions on the same strength as the ratio decidendi? Third, the condition to transpose a ratio decidendi or legal characterisation to a later case rests with the requirement of formal justice according to which like cases shall be treated alike. Yet a plethora of ‘like’ judicial decisions populate the legal practice. Picking one rather than another entails a subjective choice. This is essentially due to the fact that events, actions or facts lend themselves to different descriptions and characterisations.151 As a guiding criterion for the selection of analogous cases, looking at particular legal rules involved in the case might be appropriate. This process is inherently linked to a process of ‘typification’ of case law on the basis of, for instance, the legal formulation of the question, and relevant applicable legal provisions to be interpreted.152 In Aleksovski, the Appeals Chamber maintained: 110. What is followed in previous decisions is the legal principle (ratio decidendi), and the obligation to follow that principle only applies in similar cases, or substantially similar cases. This means less that the facts are similar or substantially similar, than that the question raised by the facts in the subsequent case is the same as the question decided by the legal principle in the previous decision. There is no obligation to follow previous decisions which may be distinguished for one reason or another from the case before the court.153

In Popović et al,154 an appeal was filed to challenge the legal characterisation of relevant facts as genocide, by reference to other international courts’ decisions. Nikolić, one of the appellants, claimed that the ICTY Trial Chamber committed an error in law and fact by ignoring relevant jurisprudential precedents, namely by the UN Commission of Inquiry in Darfur and that by the ICC in the case Prosecutor v Al Bashir, which characterised arguably similar relevant facts in



149 J

Salmond, Jurisprudence, 7th edn (Stevens and Heynes, 1924) 201. Goodhart, ‘Determining the Ratio Decidendi of a Case’ (1930) 40 The Yale Law Journal 161. 151 F Kratochwil, Rules, Norms, and Decisions (Cambridge University Press, 1989) 227. 152 Ibid 228. 153 Aleksovski Appeal Judgment (n 129), para 110. 154 Prosecutor v Popović et al (Judgment) ICTY-05-88-A (30 January 2015). 150 A

56  Courts and Argumentation of International Law a different way from the ICTY Trial Chamber in the case at hand.155 Nikolić’s argument seems to contend that legal characterisation of like facts should bear effects on later decisions. 462. Nikolić argues that the Trial Chamber committed an error of law and fact by ignoring significant recent precedents, which, in his view, establish that killing a group of men while forcibly removing the remainder of a population does not evince genocidal intent. Nicolić claims that the relevant facts in the Report of the Darfur Commission and in a set of ICC decisions on the Darfur situation are similar to the situation in Srebrenica and Žepa. Nikolić submits that the Trial Chamber’s erroneous legal classification of the crimes committed in Srebrenica as genocidal invalidated its decision and occasioned a miscarriage of justice and that, therefore, his conviction for aiding and abetting genocide should be quashed. Moreover, he contends that the Appeals Chamber must adhere to the aforementioned precedents in order to avoid fragmentation of international law.156

The Appeals Chamber rejected Nikolić’s argument ‘as neither the Report of the Darfur Commission nor the ICC jurisprudence cited by Nikolić is binding on this Tribunal.’ 464. (…) There was no obligation on the Trial Chamber to explicitly consider these authorities, which are at best persuasive. The Trial Chamber concluded, on the facts of this case, that the killing operation was conducted with genocidal intent. While there may be a superficial similarity between the facts outlined in the Darfur precedents relied on by Nicolić and those of this case, this alone cannot suffice to show an error in the Trial Chamber’s reasoning. Nikolić has therefore failed to demonstrate any error on the part of the Trial Chamber. Furthermore, the Appeals Chamber recalls that its task is not to act as a harmonising force in international law, but rather to decide the matters before it in accordance with applicable law. (…)157

This confirms that external judicial decisions, as in the case of the ICC, or authoritative legal interpretations, such as the one of the UN Commission of 155 Prosecutor v Popović et al (Appellant’s Brief on Behalf of Drago Nikolić) ICTY-05-88-A (3 August 2011) paras 90–91, 93–96, 98. 156 Popović et al Appeal Judgment (n 154), para 462 (emphasis added). 157 Ibid para 464 (emphasis added) citing Delalić et al (Judgment) ICTY-96-21-A (20 February 2001), para 24: ‘The Appeals Chamber agrees that “so far as international law is concerned, the operation of the desiderata of consistency, stability, and predictability does not stop at the frontiers of the Tribunal. (…) The Appeals Chamber cannot behave as if the general state of the law in the international community whose interests it serves is none of its concern”. However, this Tribunal is an autonomous international judicial body, and although the ICJ is the “principal judicial organ” within the United Nations system to which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion’. See also Prosecutor v Dordević (Judgment) ICTY-05-87/1 (27 January 2014), para 83: ‘These are precedents not to be lightly dismissed by the Appeals Chamber simply because another tribunal has decided the matter differently. Similarly, while the Tribunal may take into consideration scholarly writings and decisions of other courts and tribunals in ascertaining the law, the Appeals Chamber observes that Dordević fails to provide an explanation as to why the STL Decision of 16 February 2011 or independent writing of Judge Cassese justifies a departure from past practice.’

Governing Judicial Decisions  57 Inquiry in Darfur, are not binding on the ICTY Appeals Chamber. As affirmed by the ICTY Appeals Chamber, ‘they are at best persuasive’.158 This strikes a distinction that is material for understanding the effects produced by earlier decisions on later cases. Prior judicial decisions are not regarded as binding on later courts. The reason why they are followed depends on the persuasiveness of their arguments. Likewise, the ICTY Trial Chamber in Kupreskić159 maintained: 540. (…) Clearly, judicial precedent is not a distinct source of law in international criminal adjudication. The Tribunal is not bound by precedents established by other international criminal courts such as the Nuremberg or Tokyo Tribunals, let alone by cases brought before national courts adjudicating international crimes. Similarly, the Tribunal cannot rely on a set of cases, let alone on a single precedent, as sufficient to establish a principle of law: the authority of precedents (auctoritas rerum similiter judicatarum) can only consist in evincing the possible existence of an international rule. More specifically, precedents may constitute evidence of a customary rule in that they are indicative of the existence of opinio iuris sive necessitatis and international practice on a certain matter, or else they may be indicative of the emergence of a general principle of international law. Alternatively, precedents may bear persuasive authority concerning the existence of a rule or principle, ie they may persuade the Tribunal that the decision taken on a prior occasion propounded the correct interpretation of existing law. Plainly, in this case prior judicial decisions may persuade the court that they took the correct approach, but they do not compel this conclusion by the sheer force of their precedential weight. Thus, it can be said that the Justinian maxim whereby courts must adjudicate on the strength of the law, not of cases (non exemplis, sed legibus iudicandum est) also applies to the Tribunal as to other international criminal courts.160

Judicial decisions as evidence of existing rules of international law – or, to use the expression of Article 38 ICJ referred to by the Appeals Chamber, as ‘means to determine rules of law’ – are distinguished from judicial decisions which may bear a ‘persuasive authority’ for a correct interpretation as to the existence of a rule of international law. B.  Judicial Decisions as a Sufficient Basis of Justification in the Practice of International Criminal Law? Before turning to the merits of whether judicial decisions have been regarded as a sufficient basis of justification in the practice of international criminal law, a caveat is necessary. The question is not whether a judicial decision can, from a 158 The point is reiterated in other judicial decisions. See eg Prosecutor v Kvocka et al (Decision on Interlocutory Appeal) ICTY-98-30/1-AR73.5 (25 May 2001), paras 16–22; Delalić et al Appeal Judgement (n 157), para 24; Stanisić and Župljanin Appeal Judgment (n 112), para 598. 159 Kupreskić Trial Judgment (n 130). 160 Ibid para 540 (emphasis added).

58  Courts and Argumentation of International Law doctrinal point of view, be a sufficient justification for a legal finding in international criminal law. The question is rather whether courts have regarded judicial decisions as a sufficient justification in later decisions.161 While the former question is doctrinal, the latter is practice-based and aims at examining what weight has been allocated to judicial decisions in the argumentative practice of law, rather than at promoting their legally binding effect. Importantly, the Trial Chamber in Kupreskić clarified that judicial decisions may not be the sole basis on which to decide later cases. Pursuant to such an understanding, a judicial decision may justify later judicial decisions, but it is not a sufficient reason for a legal finding. 541. As noted above, judicial decisions may prove to be of invaluable importance for the determination of existing law. Here again attention should however be drawn to the need to distinguish between various categories of decisions and consequently to the weight they may be given for the purpose of finding an international rule or principle. It cannot be gainsaid that great value ought to be attached to decisions of such international criminal courts as the international tribunals of Nuremberg or Tokyo, or to national courts operating by virtue, and on the strength, of Control Council Law no. 10, a legislative act jointly passed in 1945 by the four Occupying Powers and thus reflecting international agreement among the Great Powers on the law applicable to international crimes and the jurisdiction of the courts called upon to rule on those crimes. These courts operated under international instruments laying down provisions that were either declaratory of existing law or which had been gradually transformed into customary international law. In many instances no less value may be given to decisions on international crimes delivered by national courts operating pursuant to the 1948 Genocide Convention, or the 1949 Geneva Conventions or the 1977 Protocols or similar international treaties. In these instances, the international framework on the basis of which the national court operates and the fact that in essence the court applies international substantive law, may lend great weight to rulings of such courts. Conversely, depending upon the circumstances of each case, generally speaking decisions of national courts on war crimes or crimes against humanity delivered on the basis of national legislation would carry relatively less weight. 542. In sum, international criminal courts such as the International Tribunal must always carefully appraise decisions of other courts before relying on their persuasive authority as to existing law. Moreover, they should apply a stricter level of scrutiny to national decisions than to international judgements, as the latter are at least based on the same corpus of law as that applied by international courts, whereas the former tend to apply national law, or primarily that law, or else interpret international rules through the prism of national legislation.162

In the view of the Appeals Chamber, judicial decisions are persuasive authorities which further support a court’s finding, but they are not a sufficient condition 161 This distinction mirrors the one between the logical-deductive or syllogistic aspect of judicial decisions and their argumentative dimension. See ch 5, section I. 162 Kupreskić Trial Judgment (n 130), paras 541–42.

Governing Judicial Decisions  59 for a ‘minimal justification’.163 This requires reference to a valid legal rule and the facts subsumed under that valid legal rule.164 However, certain judicial instances seem to accept reference to judicial decisions as a sufficient basis of justification in international criminal law. To exemplify, judicial decisions setting out a norm (a ‘test’), such as the ‘overall control test’ in Tadić,165 or a test comprising objective and subjective elements to identify a ‘protected group’ in genocide cases, as determined in Kayishema & Ruzindana,166 and Jelisić,167 are used as the sole justificatory basis for those tests in later decisions. To be sure, in the Tadić case the Trial Chamber had to determine whether the victims of violations of international humanitarian law committed in Prijedor would qualify as ‘protected civilians’ under the Fourth 1949 Geneva Convention (GCIV).168 Pursuant to Article 4 GCIV, protected persons are those who ‘fall into the hands of a party to the conflict or of an occupying power of which they are not nationals’. The existence of an international armed conflict or occupation triggers the application of the Geneva Conventions. To determine the existence of such contextual conditions, the Trial Chamber resorted to the effective control test established by the ICJ in the Nicaragua case.169 The Trial Chamber found that the victims of those violations would not qualify as protected persons, since the actions of the organised military groups occupying the Prijedor area, and who were of the same nationality of the victims (the Army of the Republika Srpska, ‘VRS’), could not be regarded as committed on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro).170 Hence, the Trial Chamber found that the constitutive elements of the crime were not proved and that the Defendant was to be acquitted on the relevant charges. The Prosecutor appealed the trial judgment on the ground, inter alia, that the Trial Chamber erred in relying on the effective control test derived from the Nicaragua case, and in not applying the Geneva Conventions provisions and general principles of international humanitarian law.171 The Prosecution contended that the issue of state responsibility engaging the ICJ should be

163 This expression is used by Jerzy Wróblewski. See J Wróblewski, The Judicial Application of the Law (Kluwer, 1992) 232ff. 164 Ibid. 165 Prosecutor v Tadić (Judgment) IT-94-1-A (15 July 1999), paras 120 et seq. 166 Prosecutor v Kayshema and Ruzindana (Judgment) ICTR-95-1-T (21 May 1999). 167 Prosecutor v Jelisić (Judgment) ICTY-95-10-T (14 December 1999). 168 Prosecutor v Tadić (Judgment) ICTY-94-1-T (7 May 1997), paras 578 et seq. 169 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) (Judgment) [1986] ICJ Rep 14, paras 114–16. 170 Tadić Trial Judgment (n 168), paras 584–88. Should the effective control have been proved, victims would have considered to have fallen by proxy into the hands of the Federal Republic of Yugoslavia, and would have qualified for the protection under GCIV. 171 Tadić Appeal Judgment (n 165), paras 69–72. The Prosecutor suggested that the ‘demonstrable link’ should have been applied in lieu of the effective control.

60  Courts and Argumentation of International Law distinguished from the issue of individual criminal responsibility, under the competence of the ICTY, and hence the transposition of the same test from the former to the latter by the Trial Chamber amounted to an error in law.172 The Appeals Chamber granted the Prosecution’s appeal, although for different reasons. The Chamber regarded the effective control test unpersuasive based ‘on the very logic of the entire system of international law on State responsibility,’173 namely ‘to prevent States from escaping international responsibility by having private individuals carrying out tasks which may not or should not be performed by State officials (…).’174 International law requires states to exercise control over acts performed by private individuals for those acts to be attributed to it, but ‘the degree of control may vary according to the factual circumstances of the case.’175 For instance, a different degree may be required in the case of acts performed by organised groups as opposed to private individuals.176 The Appeals Chamber introduced the ‘overall control’ test as more suitable to situations involving acts performed by organised groups, contending that the effective control test was ‘at variance with the judicial and state practice’.177 In particular, the Appeals Chamber referred to the Stephens case of the MexicoUnited States General Claims Commission; the Kenneth P Yeager case, the William L Pereira Associates case, the Arthur Young and Company case, the Schott case, and the Daley case, before the Iran-United States Claims Tribunal; the Loisidou v Turkey case, in which the European Court of Human Rights was satisfied that the local authorities were under the ‘effective overall control’ of Turkey; and the Jorgić case before the Oberlandesgericht of Düsseldorf, and the Bundesgerichtshof of Düsseldorf, in Germany.178 This overview of judicial decisions, mainly international arbitral awards, is submitted as evidence of judicial practice departing from the effective control test, in that they admit that the requirement of detailed control over every single action is not required to determine state responsibility. This practice does not per se support the ‘overall control test’ as such. The clear enunciation of the latter is grounded on the Tadić case, solely, as much as the effective control test is grounded on Nicaragua solely.179 172 This invites reflections about techniques of distinguishing between apparently like cases. 173 Tadić Appeal Judgment (n 165), para 116. 174 Ibid para 119. 175 Ibid. 176 Ibid para 137. 177 Ibid paras 124 et seq. 178 Ibid. 179 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Judgment) [1986] ICJ Rep 14, paras 114–16. For a trenchante critique of the ICJ’s approach to the law of state responsibility in the Nicaragua and the Bosnian Genocide cases, see A Cassese, ‘The Nicaragua and the Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of International Law 649. In particular, at p 651, Cassese bemoans: ‘I respectfully submit that these arguments are not convincing. The Court’s basic assumption, that Article 8 of the ILC Articles reflects customary law, is undemonstrated, being simply predicated on the authority of the Court itself (the Nicaragua precedent), as well as the authority of the ILC. The

Governing Judicial Decisions  61 It is important to note, however, that departure from the effective control test is anchored to a consistent citation track, which indicates acceptance of the finding as correct by relevant actors, including other international criminal jurisdictions as well as national courts. Since in international criminal law no stare decisis principle applies, it may be submitted that judicial decisions are followed by courts as a matter of authority, rather than as a matter of legally binding force. Such an authority is determined by the acceptance of a judicial decisionbased norm by other relevant actors operating within the legal system, including other international criminal jurisdictions as well as national ones adjudicating on international crimes. Legality, certainty, formal justice, uniformity, and rationality, among others, recur in judges’ legal argumentation as reason to prefer an interpretation and relative finding over other plausible ones.180 They are indeed typically regarded as important values in a legal system.181 By referring to them, judges justify upholding a legal interpretation and decision based on prior jurisprudence.182 Alternative plausible reasons are offered by the Appeals Chamber in the Tadić Decision on Interlocutory Appeal on Jurisdiction, in which the Appeals Chamber maintained as follows in relation to whether or not serious violations of the law and customs of war committed in non-international armed conflict amount to war crimes: 119. (…) Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.183

This passage invokes ‘elementary considerations of humanity and common sense’ as a reason to analogise international and non-international armed conflicts, and to extend the obligation prohibiting the use of certain weapons in force in international armed conflicts to non-international armed conflicts. As arguments express a reason for action, ‘considerations of humanity’, legal stability and predictability, among others, influence later judicial practice as a logical sequences of propositions in which the Court’s holding is grounded could perhaps be set out as follows: (1) The Court in Nicaragua enunciated the test [as an apodictic truth in the Kantian sense, namely as enouncing an absolute and necessary truth] (2) the ILC upheld the same test (based only on Nicaragua); (3) hence the test is valid and reflects customary international law.’ 180 Jerzy Wróblewski associates these values with static normative theories of interpretation, in which ‘the task of changing the law falls solely to the lawgiver’, while ‘the interpreter has only to apply the duly enacted law’. These theories are distinguished from dynamic normative theories, which assume ‘the dynamic relativity of legal concepts’ which adapt over time thanks to the interpreter. See J Wróblewski, Meaning and Truth in Judicial Decision (Juridica, 1979) 19–20. 181 J Wróblewski, The Judicial Application of the Law (n 163) 267ff. 182 On this point, see also L Moral Soriano, ‘The Use of Precedents as Arguments of Authority, Arguments ab exemplo, and Arguments of Reason in Civil Law Systems’ (1998) 11 Ratio Juris 90, 99. 183 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 51), para 119 (emphasis added).

62  Courts and Argumentation of International Law matter of substance, rather than as a matter of hierarchical structure. A retrospective observation helps trace the effects produced on later judicial decisions, regardless of whether they stem from lower chambers operating within the same judicial institutional structure. For instance, in considering the weight to ascribe to its prior judicial decisions or the jurisprudence of other tribunals, the ICTY Appeals Chamber affirmed that, ‘in the interests of justice’, it should follow its prior decision although it is not bound to do so. The Appeals Chamber is not bound by its prior decisions, but it should not depart from them. In Aleksovski,184 the ICTY Appeals Chamber recalled that ‘the principle of the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases’,185 and it provided an indication about what constitutes ‘cogent reasons’ to depart from previous cases: 108. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law.’ 109. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.186

The principle according to which cogent reasons to depart from previous judicial decisions exist when these have been rendered per incuriam has been invoked in the Delalić et al case,187 in which one of the Appellants argued that the characterisation of the international armed conflict on the basis of the overall control test was erroneous. 26. … this Appeals Chamber is unable to conclude that the decision in the Tadić was arrived at on the basis of the application of a wrong legal principle, or arrived at per incuriam. After careful consideration of the arguments put forward by the appellants, this Appeals Chamber is unable to find cogent reasons in the interests of justice to depart from the law as identified in the Tadić Appeal Judgement. The ‘overall control’ test set forth in the Tadić Appeal Judgement is thus the applicable criteria for determining the existence of an international armed conflict.188

Notably, judicial decisions laying down norms, such as the ‘overall control test’ to identify the existence of international armed conflict, are to be distinguished from other types of judicial decisions influencing later judicial decisions because



184 Aleksovski

Appeal Judgment (n 129). para 102. 186 Ibid paras 108–09 (emphasis added). 187 Delalić et al Appeal Judgement (n 157). 188 Ibid para 26. 185 Ibid

Governing Judicial Decisions  63 of an expressed reason for action, such as legal stability, predictability and certainty within a legal system. In the former case, the court identified a norm intrinsic in the legal concept to be interpreted, while in the latter it set forth a norm on the manner of interpreting. This distinction appears worth stressing in light of the two cases just mentioned. In Aleksovski, the Appeals Chamber determined a norm. The norm establishes that a cogent reason to depart from an earlier decision exists when such decision was reached by misapplication of the law, namely by applying a wrong legal principle or because judges were ill-informed about the law. In Delalić et al this norm was applied to a concrete instance where the ‘overall control test’, qua a legal norm, was challenged by the appellants. By confirming the validity of the ‘overall control test’ established in the Tadić Appeals Judgment, the Appeals Chamber corroborated the legal norm settled in a prior judicial decision. Aleksovski embeds instead a norm which is related more to the modus of deciding later cases, or procedural aspects, than to the substantive content of a legal rule. By setting such a norm, the Appeals Chamber laid down the basis to control later judicial decisions: only if cogent reasons in the interests of justice demand departure from prior jurisprudence would the Appeals Chamber proceed accordingly. Conversely, later judicial decisions may justify convergence with prior jurisprudence based on the reason (or argument) laid down in Aleksovski.189 This is a material indication of the effects produced by earlier decisions on the chamber itself, as well as on other courts. In particular, at a vertical level, higher courts’ decisions are binding over lower instances. At a horizontal level, the norm to follow prior judicial decisions also applies with regard to judicial decisions emanating from the same level of judgment (ie trial chambers’ and appeals chambers’ decisions). As such, the ‘established jurisprudence’ of a court imposes itself as a body of judicial decisions to be followed, and thus selfconstrains the chamber towards its prior holdings.

189 On this point, see P Chiassoni, ‘The Philosophy of Precedent: Conceptual Analysis and Rational Reconstruction’ in T Bustamante and C Bernal Pulido (eds), On the Philosophy of Precedent – Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, Vol III (Nomos, 2009) 13–34, 17–22.

3 Rethinking Judicial Decisions beyond Formal Architectures I.  GENESIS AND HISTORICAL DEVELOPMENT OF INTERNATIONAL CRIMINAL LAW: A PLURALITY OF COURTS

W

hile isolated instances of international criminal trials can be traced back to the Middle Ages, and proposals to create an international criminal court were advanced in the 1870s,1 the genesis of international criminal law traditionally dates back to the end of the Second World War, with the establishment of the International Military Tribunals in Nuremberg (IMT, Nuremberg Tribunal) and in Tokyo (International Military Tribunal for the Far East, IMTFE) in 1945 and 1946, respectively. On 6 October 1945, the IMT was created in Nuremberg to try and punish ‘the major war criminals of the European Axis’.2 The Nuremberg Tribunal was established by international agreement between the Allied Powers, the London Agreement of 8 August 1945. The Charter annexed to the Agreement provided that the Tribunal would have material competence over crimes against peace, war crimes, and crimes against humanity.3 The IMTFE was instead set up by a directive of the General Headquarters Supreme Commander for the Allied Powers occupying Japan,4 on 29 April 1946, to try and punish the ‘major war criminals in the Far East’.5 The Charter appended to the directive conferred the Tribunal the competence to adjudicate over crimes against peace, war crimes, and crimes against humanity.6 As the Nuremberg and Tokyo tribunals operated

1 WA Schabas, The International Criminal Court (Oxford University Press, 2010) 1. For a comprehensive historical overview relevant to the establishment of a permanent international ­criminal court, see ibid 1–18. 2 Article 1 of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal (London, 8 August 1945) (‘London Charter’). 3 Article 6 of the London Charter. 4 The Directive was signed by US General McArthur, General Headquarters Supreme Commander for the Allied Powers, in Tokyo, on 19 January 1946. Original documents available on http://imtfe. law.virginia.edu/collections/morgan/1/4/special-proclamation-establishment-internationalmilitary-tribunal-far-east. 5 Article 1 of the IMTFE Charter (‘Tokyo Charter’). 6 Article 5 of the Tokyo Charter.

Genesis and Historical Development of International Criminal Law  65 on the basis of special laws introduced by the Allied Powers by virtue of occupation, some controversy arose as to whether the legal developments generated by their judicial activity would contribute to the permanent development of international law.7 The point is indeed interesting, as it bears on the extent to which legal rules and principles stemming from a specific area of international law may trigger developments into international law more widely. The two International Military Tribunals played a revolutionary role in the development of international criminal law. On the one hand, the London and the Tokyo Charters codified classes of international criminality for which individuals would bear responsibility under international law.8 This entailed the recognition that violations were not only prohibited but also criminalised under international law and, as such, amounted to international crimes.9 On the other hand, the International Military Tribunals’ judgments authoritatively expressed bedrock principles of international criminal law, such as the principle of individual criminal responsibility.10 The legal rules and principles enshrined in the London Charter, and elucidated by the Nuremberg Tribunal, were affirmed by the UN General Assembly in 1946,11 and later formulated by the UN International Law Commission (ILC) in a non-legally binding document called ‘Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal’ (the Principles).12 Antonio Cassese comments on this point as follows: By ‘affirming’ those principles, the General Assembly … clearly intended to express its approval of and support for the general concepts and legal constructs of criminal law that could be derived from the IMT Charter and had been set out, either explicitly or implicitly, by the IMT. Translated into law-making terms, this approval and support meant that the world community had robustly set in motion the process for turning the principles at issue into general principles of customary law binding on member States of the whole international community.13

The Principles reaffirmed inter alia the individual criminal responsibility for acts constituting a crime under international law (Principle I), the irrelevance of the criminalisation of those acts under national law (Principle II), and the definition of crimes against peace, war crimes, and crimes against humanity (Principle VI). The 1951 Draft Code of Crimes against the Peace and Security of 7 W Friedmann, The Changing Structure of International Law (Columbia University Press, 1964) 145. 8 While violations of the rules and customs of war were restated, crimes against peace and crimes against humanity were codified therein for the first time. 9 This notion, used interchangeably with crime under international law, will be further clarified later in this chapter. 10 On the point, see Friedmann, The Changing Structure of International Law (n 7) 145. 11 UN General Assembly resolution 95(I), 11 December 1946. 12 ILC, ‘Principles of International Law Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’ [1950] II Yearbook of the International Law Commission 374. 13 A Cassese, ‘Affirmation of the Principles recognised by the Charter of the Nuremberg Tribunal’, UN Audio Visual Library (2009), at www.un.org/avl (emphasis added).

66  Rethinking Judicial Decisions beyond Formal Architectures Mankind, drafted by the UN International Law Commission, are also regarded as important steps forward in the codification of existing customary international law. Further, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was approved and proposed for signature and ratification by the UN General Assembly on 9 December 1948.14 The Genocide Convention confirmed that genocide is a crime under international law, whether committed in a time of peace or in a time of war.15 The four Geneva Conventions, applicable in times of armed conflict and concluded on 12 August 1949, provide rules of protection for individuals,16 expressly criminalising the enumerated acts committed in times of international armed conflict, under the notion of ‘grave breaches’.17 Moreover, the four Geneva Conventions impose on the High Contracting Parties the obligation either to prosecute or extradite (aut dedere aut judicare) the alleged perpetrators of grave breaches.18 The Conventions have been supplemented by the First and Second Additional Protocol (API and APII respectively), adopted in 1977.19 In particular, the First Additional Protocol, applicable in times of international armed conflict, has criminalised additional conduct as grave breaches.20 As such, an important phase of codification of existing legal rules criminalising acts under international law was set in motion by the post-war establishment of the International Military Tribunals, leading to the adoption of legal instruments that continue to be cardinal in international criminal law to date. However, for a long time the IMTs remained the sole instances of international criminal judicial institutions. Although some criminal proceedings were initiated in national jurisdictions against individuals for crimes committed during the Second World War, like the Eichmann case in Israel21 or the Barbie case in France,22 international criminal 14 UN General Assembly Resolution 260 A (III). The Genocide Convention entered into force on 12 January 1951, 78 UNTS 277. 15 Article 1 of the Genocide Convention. As is notorious, the crime of genocide was regarded by the Statute of the Nuremberg Tribunal as a special offence of crimes against humanity and not as a self-standing crime. This meant that, in order to prove the crime of genocide, the contextual elements of crimes against humanity had to be proved first. On the contrary, to prove genocide as a crime per se, only the specific constitutive elements of the crime as defined in the 1948 Genocide Convention, Articles I and II, need to be proved. 16 First Geneva Convention on Wounded and Sick in Armed Forces in the Field (GCI); Second Geneva Convention on Wounded, Sick and Shipwrecked of Armed Forces at Sea (GCII); Third Geneva Convention on Prisoners of War (GCIII); Fourth Geneva Convention on Civilians (GCIV). They all entered into force on 21 October 1950. 17 Articles 50 GCI, 51 GCII, 130 GCIII, 147 GCIV. 18 Article 49 GCI, 50 GCII, 129 GCIII, 146 GCIV. 19 The API and APII were adopted on 8 June 1977, and entered into force on 7 December 1978. 20 Article 85 API. 21 Attorney General v Eichmann, District Court of Jerusalem, Criminal Case No 40/61, Judgment of 11 December 1961; Attorney General v Eichmann, Supreme Court of Israel, Criminal Appeal 336/61, Judgment of 29 May 1962. 22 Prosecutor v Barbie, Supreme Court (Criminal Law Chamber), 83-93194, Judgment of 6 October 1983. See also Charles W Keenan, 31 January 1969 (US Court of Military Appeals); Kurt Köllner (Schwurgericht bei Landgericht Saarbruecken, 25 June 1962); Otto Haupt et al (Schwurgericht bei

Genesis and Historical Development of International Criminal Law  67 law remained in a state of stalemate until the creation of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (ICTY and ICTR, ad hoc tribunals) by the UN Security Council in the 1990s.23 The judicial activity of the two ad hoc tribunals has been key for the clarification of rules and principles both of international criminal law and international humanitarian law, enshrined in legal instruments adopted in the post-war period, including the 1949 Geneva Conventions.24 Additional ad hoc international criminal tribunals, namely temporary tribunals created with a limited jurisdiction ratione loci, were set up in the 2000s. The Special Court for Sierra Leone (2002), the Extraordinary Chambers in the Courts of Cambodia (2003), and the Special Tribunal for Lebanon (2007),25 all established by an international agreement between the state concerned and the UN, are examples in kind. Mention should also be made of the Extraordinary African Chambers created by an international agreement between the African Union and the State of Senegal in 2012,26 and operative until April 2017. Since the establishment of the ICTY and ICTR in the 1990s, national jurisdictions have experienced a remarkable advance in the adjudication of international crimes. Around thirty countries initiated proceedings for international crimes based on territorial or active nationality jurisdiction. Seven trials were set up in Europe, eleven in Latin America, four in Asia and ten in Africa.27 The proceedings based on universal jurisdiction were instead set up in a more limited number of countries (sixteen), of which almost all are Western and mainly European.28 The prosecution of individuals on the basis of the so-called universality principle – that is, based on the nature of the crimes rather than on traditional titles

Landgericht Tuebingen, 22 December 1964); S. case (Schwurgericht bei Landgericht Hildesheim, 4 March 1955); Johann Neitz, 20 March 1946 (Canadian Military Court), reported in A Cassese, ‘Black Letter Lawering v. Constructive Interpretation – The Vasiljevic Case’, 2 Journal of International Criminal Justice (2004) 265. See also Demjanjuk v Attorney General of Israel, Supreme Court of Israel, 29 July 1993. 23 The ICTY and ICTR were established by UN Security Council Resolution 827/1993 and 955/1994, respectively, adopted under Chapter VII of the UN Charter. 24 Eg Article 2 ICTY Statute confers the Tribunal jurisdiction over grave breaches of the Geneva Conventions of 1949; Article 4 ICTR Statute over violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. 25 A caveat is necessary in the case of the Special Tribunal for Lebanon, for which the international agreement between Lebanon and the UN was eventually brought into force by UN Security Council resolution 1757 (2007), on 10 June 2007. 26 Pursuant to Article 1 of the founding Agreement, the Chambers have jurisdiction over international crimes committed in Chad between 1 June 1982 and 1 December 1990, namely under the regime of Hissène Habré. Cf http://www.chambresafricaines.org/pdf/Accord%20UA-Senegal%20 Chambres%20africaines%20extra%20Aout%202012.pdf. 27 J Rikhof, ‘Prosecution of International Crimes – a Historical and Empirical Overview’ (2014) 2 Bergen Journal of Criminal Law and Criminal Justice 108, 114. For a discussion on the principle of universal jurisdiction, see ch 3, section III. 28 J Rikhof, ‘Prosecution of International Crimes’ (n 27) 117. Except for 12 European countries and two North American (US and Canada), only one African country, namely South Africa, started investigations based on universal jurisdiction.

68  Rethinking Judicial Decisions beyond Formal Architectures of jurisdiction of criminal law such as territoriality or active personality – has been viewed as evidence of a changed international law.29 The creation of the first permanent international criminal institution with a judicial function, the International Criminal Court (ICC), marked a fundamental step towards codifying existing rules of international criminal law.30 Pursuant to Article 1 of the Rome Statute, the Court has the power to exercise jurisdiction over persons for ‘the most serious crimes of international concern’, namely the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, enumerated in Article 5 ICC Statute. Unlike the Statutes of the preceding international criminal tribunals, the international crimes under the jurisdiction of the ICC are defined in detail in the Statute (Articles 6 to 8 bis), and further elucidated by the Elements of Crimes,31 in a way which plainly recalls a penal code. In addition, the complementarity principle that informs the ICC and makes it a supplementary court,32 has given new emphasis to the role of national courts, and provided for a treaty-based common legal framework. As recalled by the Preamble to the ICC Statute, ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. To date, 123 states are party to the ICC Statute.33 Yet national courts may exercise – where provided by national law – universal jurisdiction over crimes committed before the entry into force of the Rome Statute on 1 July 2002.34 They may also depart from the definition of the crimes as envisaged in the ICC Statute to secure compatibility with their internal criminal justice system.35 Further, new judicial mechanisms may be instituted for states that are not party to the Statute, as in the case of Syria,36 or quasi-judicial bodies, such as UN inquiry commissions, making the landscape of international criminal justice in continuous motion. Although international criminal law has been applied, interpreted and developed especially by international criminal fora, national jurisdictions are 29 Cf R Falk, ‘Reparations, International Law and Global Justice: A New Frontier’ in P de Greiff (ed), The Handbook of Reparations (Oxford University Press, 2006) 478–503, 478–480. 30 The ICC Statute came into force on 1 July 2002. The ICC became operative from 2003. 31 As set out in Article 9 of the ICC Statute, the Elements of Crimes shall assist the Court in the interpretation and application of Articles 6, 7, 8 and 8 bis. 32 Preamble of the ICC Statute; Article 1 of the ICC Statute. 33 https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20 to%20the%20rome%20statute.aspx. 34 Article 11 ICC Statute provides that the Court has jurisdiction ratione temporis from the date of entry into force of the Statute. States which accede the Statute later than the date of entry into force may accept the jurisdiction of the Court for acts committed before the accession, but not earlier than the date of entry into force. 35 On the point, see eg H van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’ (2008) 8 International Criminal Law Review 229. 36 The ‘International, Impartial and Independent Mechanism’ (IIIM) was established by United Nations General Assembly resolution 71/248 on 21 December 2016, to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011.

Genesis and Historical Development of International Criminal Law  69 viewed as the natural forum for investigating a crime and prosecuting those alleged to be responsible. Some even regard national courts as ‘the most important actors in the regime for the prosecution of international crimes.’37 International treaty rules afford states a cardinal function in prosecuting individuals for international crimes. The 1949 Geneva Convention expressly demand states to prosecute individuals for grave breaches or to surrender them to another High Contracting Party for trial.38 The Genocide Convention also provides that ‘[p]ersons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.’39 As indicated in the Separate Opinion of Judges Higgins, Kooijmans and Buergenthal ‘international criminal tribunals, treaty obligations and national courts all have their part to play [in securing that the perpetrators of international crimes do not go unpunished]’.40 As such, the assertion that international criminal law is a field in which national courts flank international jurisdictions in the prosecution of international crimes appears uncontroversial. It follows that international criminal law is characterised by an institutional bouquet, enriched by the increasing activity of national courts at the domestic level.41 As national courts are neither homogeneous among themselves, nor vis-à-vis international jurisdictions, several conceptual perspectives have been elaborated to understand and reflect upon possible divergences this institutional and normative plurality may entail.42 For instance, AnneMarie Slaughter contends the emergence of a ‘community of courts engaged in a common endeavour’43 in the field of international criminal law. In such

37 R Cryer, Prosecuting International Crimes (Cambridge University Press, 2005) 74. 38 Articles 49 CGI, 50, GCII, 129 GCIII, and 146 GCIV. 39 Article VI to the Genocide Convention provides that ‘Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have ­jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.’ 40 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Separate Joint Opinion of Judges Higgins, Kooijmans and Buergenthal) [2002] ICJ Rep 3, para 51. 41 A Nollkaemper, ‘Conversations among Courts: Domestic and International Adjudicators’ in CPR Romano, KJ Alter, and Y Shany (eds), The Oxford Handbook of International Adjudication (Oxford University Press, 2014) 524–549, 524. 42 L van den Herik and C Stahn (eds), The Diversification and Fragmentation of International Criminal Law (Brill, 2012); E van Sliedregt and S Vasiliev (eds), Pluralism in International Criminal Law (Oxford University Press, 2014); P Webb, International Judicial Integration and Fragmentation (Oxford University Press, 2013); A Greenwalt, ‘Pluralism in International Criminal Law’ (2011) 86 Indiana Law Journal 1063. See also K Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 NYU Journal of International Law & Politics 501; A Roberts et al (eds), Comparative International Law (Oxford University Press, 2018). 43 A-M Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191, 192.

70  Rethinking Judicial Decisions beyond Formal Architectures community, national courts increasingly refer to foreign counterparts to decide on issues of international scope such as the death penalty, human rights, and so on. Slaughter submits that courts ‘conceive of themselves as capable of independent action in both international and domestic realms’ and that ‘they are increasingly coming to recognise each other as participants in a common judicial enterprise’.44 Slaughter’s contention is accompanied by a normative statement, namely that the adjudication process relating to international matters should go beyond the traditional parochialism of national courts that solely apply national law and rely on national case law. The notion is descriptively powerful, as it grasps the multiplication of international courts and tribunals and their potential interaction with national courts. Yet, however suggestive this picture of a global community of courts may be, the implications of such a theoretical construction remain unclear to assess at the level of one’s concept of international law. It goes without saying that such a variegated institutional setting, coupled with the lack of a stare decisis principle in international law, would project an image of chaos on the flow of judicial decisions, even if operating within the same legal regime. Against this background, the relation between national and international courts adjudicating on points of international law raises particular interest for those areas of international law, like international criminal law, in which the synergy between the two is regarded as not simply desirable, but necessary.45 II.  GENERAL EFFECTS OF REGIME DEVELOPMENT

The rise of international criminal law as a body of substantive legal rules and principles concerned with the criminal responsibility of individuals for violations of international law46 may be contextualised amid a wider pattern of development of public international law. Doctrinal sources dating back to the 1940s and 1950s substantiate this wave of change. For instance, in 1947,

44 Ibid 193. 45 Cf H van der Wilt, ‘National Law. A Small but Neat Utensil in the Toolbox of International Criminal Tribunals’ (2010) 10 International Criminal Law Review 209, 211: ‘After all, “harmonisation” does not imply full-fledged “unification”. But it is incontrovertible that international criminal tribunals have a normative impact on domestic jurisdictions.’ Ibid 240: ‘Interaction between international criminal tribunals and domestic jurisdictions is here to stay. It implies the impact of international criminal tribunals on the law and practice of national jurisdictions, but, reversely, the lasting influence of domestic law on international tribunals as well.’ 46 In the Introduction, substantive international law has been defined as the rules criminalising violations of international law, as well as the conditions upon which states are authorised or obliged, under international law, to prosecute or to try individuals allegedly responsible for those violations. See ch 1, section IV.

General Effects of Regime Development  71 Alf Ross recounted the then-contemporary ontological debate about the concept of international law, by reference to three groups of views.47 The first, classical, school maintained that international law only regulates relations between states and, therefore, only states can have international duties and rights.48 The second, emerging, school purported that international law typically regulates relations between states, but that individuals may exceptionally be regarded as subjects of international law, too.49 The third, more ‘extreme’, view – as Ross characterises it – admitted that states are, in all events, a fiction; thus, only individuals can be the ‘true subjects of rights and duties’ under international law. Likewise, in 1958, Wilfred Jenks cogently called for ‘an attempt to reassess the scope and province of contemporary international law … originally evolved on the assumption that international law is a law between “States solely and exclusively”.’50 Jenks emphasised the increasing ‘shifting from the formal structure of the relationships between States’ to ‘cross-frontier ­relationships of individuals, organisations, and corporate bodies’, marked by the ‘development of substantive rules on matters of common concern vital to the growth of an international community to the individual well-being of the citizens of its members.’51 In other terms, if states are the ‘immediate’ members of the international community, men are its ‘ultimate members’.52 Thus, international law cannot but be, in Jenks’ view, a common law of mankind ‘of an organised world community, constituted on the basis of States but discharging its community functions increasingly through a complex of international and regional institutions, guaranteeing rights to, and placing obligations upon, the individual citizen …’.53 Further to scholarly resources, judicial decisions, too, have underscored the seeds of a development in the concept and function of international law.54 The understanding of international law as a ‘body of rules legally binding on states

47 A Ross, A Textbook of International Law – General Part (Longmans, Green and Co, 1947 – repr 2006, 2013) 28. 48 Ibid. 49 Ibid. 50 W Jenks, The Common Law of Mankind (Fredrick A Praeger, 1958) 7. 51 Ibid 17. See also G Scelle, Précis du droit des gens (Sirey, 1932); H Lauterpacht, The Function of Law in the International Community (Clarendon, 1933); P Jessup, A Modern Law of Nations (Macmillan, 1948). 52 The expression is drawn from John Westlake. See J Westlake, Chapters on the Principles of International Law (Cambridge, 1894) 78: ‘States are its [of the community of states] immediate, men its ultimate members. The duties and rights of states are only the duties and rights of the men who compose them.’ Cf W Jenks, The Common Law of Mankind (n 50) 18. 53 Jenks, The Common Law of Mankind (n 50) 8. 54 Notably, such a proposition rests on the assumption that a change in the function of contemporary international law may be underscored, as compared to the ‘old’ international law dating back to the creation of the Westphalian system of nation states in 1648. See A Aust, Handbook of International Law (Cambridge University Press, 2005) 3.

72  Rethinking Judicial Decisions beyond Formal Architectures in their intercourse with each other’55 was famously upheld by the Permanent Court of International Justice in 1927 in the seminal SS Lotus case: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.56

However, the view that international law is confined to governing the relations between states has been challenged by the emergence of legal rules and principles directly addressing entities other than states, thus recognising that not only states, but also individuals, may be the beneficiaries or holders of legal rights and duties under international law. Canonically, this has been epitomised by the rules of customary international law applicable to pirates, by the provisions addressing certain war criminals under the 1922 Treaty of Washington on the use of submarines and poison gases in war, and by Article 228 of the 1919 Treaty of Versailles pertaining to the surrender of individuals charged with committing acts in violations of the laws and customs of war.57 Nevertheless, it is only with the establishment of the first international tribunal with jurisdiction over natural persons for violations of international law that such a transition in the function of international law has become tangible.58 As held by the International Military Tribunal in Nuremberg: … crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced … individuals have international duties which transcend the national obligations of obedience imposed by the individual state.59

At least, holding the individual accountable for violations of international law has been appreciated as the evidence of the coexistence of traditional and modern patterns of international law, living side by side.60 In particular, in the 1980s, Antonio Cassese held that ‘the new legal institutions, which have developed within the setting of the international society approximately since the First World War (and with greater intensity since 1945), have not uprooted or supplemented the old framework; rather, they appear to have been superimposed on it.’61 A more revisionist formulation of the concept of international 55 R Jennings and A Watts (eds), Oppenheim’s International Law, 9th edn (Oxford University Press, 2008) 5; G Schwarzenberger, A Manual of International Law (Professional Books Ltd, 1976) 3ff. 56 The Case of the SS ‘Lotus’ (France v Turkey) (Merits) [1927] PCIJ Rep Series A No 10, p 18. 57 See Ross, A Textbook of International Law (n 47) 29. 58 Ibid 29–30. 59 Judgment of the Nuremberg International Military Tribunal (1947) 41 AJIL 172, 221. 60 A Cassese, International Law in a Divided World (Clarendon Press, 1986) 30. See also R Higgins, Problem and Process (Oxford University Press, 1994) 1: ‘(international law) is not, as is commonly supposed, only about resolving disputes.’ 61 Cassese, ibid, 30–31. See also pp 14 and 23, in which the author refers to traditional international law as distinguished from modern international law. See also Friedmann, The Changing Structure of International Law (n 7) 64ff.

General Effects of Regime Development  73 law was subsequently offered by Rosalyn Higgins, who famously described it as ‘a normative system, harnessed to the achievement of common values’.62 In this vein, the ICTY Appeals Chamber in the Tadić case sustained: A State-sovereignty approach has been gradually supplanted by a human-being-oriented approach … [I]nternational law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings …63

Such passage is interesting, in that it compellingly puts forward a vision pursuant to which international law ‘must turn to the protection of human beings’. The fact that such a vision is expressed in a judicial decision seems to accord with the contention of Christopher Weeramantry concerning the role of the judge within the international legal system, namely that of an ‘instrument of change through which the process of adaptation takes place to the needs of the time.’64 Judicial decisions can therefore be evidence of such change. As Weeramantry observes, ‘decisions piled upon decisions … make a whole corpus of law, whether or not the process be prohibited by state authority or settled tradition.’65 It can thus be assumed that judges adjudicating on international criminal law matters operate under a certain understanding of the function that international criminal law performs within the international legal order, which might in principle vary from judge to judge. This corresponds to the Rossian idea that ‘judges are motivated by a common “normative ideology”.’66 Such a normative ideology can arguably become entrenched in the interpretation of sources of law and ascribe to international criminal law competing understandings, narratives and functions. Judges entrusted with the interpretation and application of international criminal law are thus in the position to influence the development of international criminal law by laying down judicial decisions that are underpinned by their understanding of the law.67

62 Higgins, Problem and Process (n 60) 1. See also B Simma, ‘The Contribution of Alfred Verdross to the Theory of International Law’ (1995) 6 European Journal of International Law 33, 49; T Meron, The Humanisation of International Law (Martinus Nijhoff, 2006). 63 Prosecutor v Tadić (Decision of the Defence Motion for Interlocutory Appeal of Jurisdiction) ICTY-94-1 (2 October 1995), para 97. 64 CG Weeramantry, ‘The Function of the International Court of Justice in the Development of International Law’ (1997) 10 Leiden Journal of International Law 309, 313. See also CPR Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’ (1999) 31 International Law and Politics 709, 750: ‘(international criminal jurisdictions) transform abstract norms into cogent and binding reality, and by doing so they are promoting justice. Framed in this manner, international jurisdictions become essential tools for the building of the international legal system and the furtherance of the international rule of law.’ 65 Weeramantry, ‘The Function of the International Court of Justice in the Development of International Law’ (n 64) 313. 66 U Bindreiter, ‘The Realist Hans Kelsen’ in L Duarte d’Almeida, J Gardner, and L Green (eds), Kelsen Revisited – New Essays on the Pure Theory of Law (Hart Publishing, 2013) 101–29, 112. 67 R Jennings, ‘Judicial Function and the Rule of Law in International Relations’ in Collected Writings of Sir Robert Jennings, Vol I (Springer, 1998) 486: ‘the most important requirement of the judicial function [is to] be seen to be applying existing, recognised rules, or principles of law’ even when ‘a court creates law in the sense of developing, adapting, modifying, filling gaps, interpreting, or even branching out in a new direction’.

74  Rethinking Judicial Decisions beyond Formal Architectures III.  THE SEEDS OF UNIVERSALISM

The qualification of a crime as an international crime brings with it important legal implications, not least the entitlement for national courts to prosecute the alleged perpetrators of such crimes under customary international law.68 Thus, what makes a crime an international crime appears decisive. The ‘international element’ is typically described as ‘state-supported criminality’, ‘systematic or large-scale’ violence, or other similar features that may justify a crime not being a matter of national law only.69 Yet it would not be accurate merely to point to a single feature, dimension or characteristic to define a crime as ‘international’. Rather, the international element refers to a number of features that are typical of these crimes. An international crime consists in a violation of a rule or principle established to protect the interests of the whole international community, such as human dignity, international peace and security,70 etc, that attract direct individual criminal responsibility under international law.71 In the Tadić case before the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Appeals Chamber upheld the dictum of the Trial Chamber in the same case, regarding international crimes as universal in nature. … it should be noted that the crimes which the International Tribunal has been called upon to try are not crimes of a purely domestic nature. They are really crimes which are universal in nature, well recognised in international law as serious breaches of international humanitarian law, and transcending the interest of any one State. The Trial Chamber agrees that in such circumstances, the sovereign rights of States cannot and should not take precedence over the right of the international community to act appropriately as they affect the whole of mankind and shock the conscience of all nations of the world.72

The vocabulary of universalism is also reiterated in national jurisdictions. For instance, the Supreme Court of Israel in the Eichmann case affirmed: … these crimes constitute acts which damage vital international interests; they impair the foundations and security of the international community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilised nations. The underlying principle in international

68 On the point, see eg C Kress, ‘Universal Jurisdiction over International Crimes and the Institut de Droit international’ (2006) 4 Journal of International Criminal Justice 561, 584. 69 Cf A Nollkaemper, ‘Introduction’ in A Nollkaemper and H van der Wilt (eds), System Criminality in International Law (Cambridge University Press, 2009) 1–25, 19–20. 70 The ILC defined these crimes as ‘crimes against peace and security of mankind’ already in the 1954 Draft Code and later in 1996 Draft Code. See [1996] II Yearbook of the International Law Commission 1. 71 A Cassese, P Gaeta et al, Cassese’s International Criminal Law, 3rd edn (Oxford University Press, 2013) 20; G Werle and F Jessberger, Principles of International Criminal Law, 3rd edn (Oxford University Press, 2014) 31. 72 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 63), para 59.

The Seeds of Universalism  75 law regarding such crimes is that the individual who has committed any of them and who, when doing so, may be presumed to have fully comprehended the heinous nature of his act must account for his conduct. (…) Those crimes entail individual criminal responsibility because they challenge the foundations of international society and affront the conscience of civilised nations. … they involve the perpetration of an international crime which all the nations of the world are interested in preventing.73

International crimes are thus conceived of as ‘universal in nature … ­transcending the interest of any one State.’74 The universalist conception of crimes reflects on the concept of universal jurisdiction that attaches to international crimes.75 The principle of universal jurisdiction (or universality principle) does not require the forum state to establish a direct link of territoriality or nationality with the crime.76 Notably, the Permanent Court of International Justice in the SS Lotus case (1927) sanctioned the possibility for states to exercise extraterritorial jurisdiction, namely to extend the application of their laws and the jurisdiction of their courts to person, property and acts outside their territory, provided that no prohibitive rule exists to this effect.77 This judgment set out the presumption that states are free to exercise jurisdiction extra-territorially, unless a prohibitive rule may be invoked to limit such freedom. A significant development in construing the notion of universal jurisdiction can be traced to a resolution of the Institut de droit international of 1931 proclaiming that every state, on which the alleged perpetrator was found, had the right to punish acts violating general interests protected by international law, if extradition was not requested.78 Subsequently, the notion of universal jurisdiction was recognised in connection with cases of delicta juris gentium.79 Today, the notion of universal jurisdiction in the form of an obligation aut dedere aut judicare (literally, either extradite or prosecute) is provided in a number of international conventions, including the 1973 International Convention for the Suppression and Punishment of the Crime of Apartheid, the 1984 Convention Against Torture, and the 1949 Geneva Conventions. However, it is generally

73 Attorney General v Eichmann, Supreme Court of Israel, Criminal Appeal 336/61, Judgment of 29 May 1962. 74 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 63), para 59. 75 For a comprehensive overview, see L Reydams, Universal Jurisdiction – International and Municipal Legal Perspectives (Oxford University Press, 2004) 28–42. 76 Harvard Research in International Law, ‘Jurisdiction with Respect to Crime’ (1935) 29 AJIL 435; Council of Europe, European Committee on Crime Prevention, Extraterritorial Criminal Jurisdiction (1990). Cf Reydams, Universal Jurisdiction (n 75) 21. 77 The Case of the SS ‘Lotus’ (France v Turkey) (Merits) [1927] PCIJ Rep Series A No 10, pp 18–19. 78 Annuaire de l’Institut de droit international, 36(II) (Falk/Pedone/Goemare, 1931) 235. 79 K Mikliszanski, ‘Le système de l’universalité du droit de punir et le droit pénal subsidiaires’ (1936) Revue de science criminelle et de droit pénal comparé 331, 338 cited in A O’Sullivan, Universal Jurisdiction in International Criminal Law – The Debate and the Battle for Hegemony (Routledge, 2017) 58, and in L Reydams, Universal Jurisdiction (n 75) 38.

76  Rethinking Judicial Decisions beyond Formal Architectures recognised that, under customary international law, states also have an entitlement to prosecute the alleged perpetrators of international crimes (permissive universal jurisdiction). This is confirmed by the ILC 1996 Draft Code of Crimes against Peace and Security of Mankind which provides an obligation to extradite or prosecute for the crime of genocide, crimes against humanity, crimes against the United Nations and associated personnel, and war crimes.80 IV.  NATIONAL COURTS AND INTERNATIONAL CRIMES

Traditionally, the ways in which international law comes under the purview of national adjudicative jurisdiction81 of states are disciplined by national law. For instance, some legal orders may envisage the automatic incorporation of international law into the national legal order, while others may demand transformation of international law into national law. These methods – automatic incorporation and transformation – in principle reflect two different ways of conceptualising the divide between international and national law, the former inspired by a monist model, the latter of dualist footprint. Monism understands international law and national law as being part of the same unitary system of rules, capable of reaching out to individuals, with international law at its apex.82 International law may directly become part of the national legal order without the interposition of a national law allowing for it.83 Instead, dualism posits that national and international legal orders are distinct and independent ones, governing different matters – national law concerned with intra-state matters and international law with inter-states matters – and thus interacting to a very limited extent, if at all.84 According to this approach, if international rules become part of national law it is only upon authorisation of the sovereign state.85 The fundamental assumption of the dualist theory lies with the supremacy of the state.86 The international legal order is specifically designed to be applied in the relations between states and does not regard 80 Article 9 of the ILC Draft Code of Crimes against Peace and Security of Mankind [1996] II Yearbook of the International Law Commission 1, 15. 81 Adjudicative jurisdiction is defined as the jurisdiction to apply established legal rules, and it is distinguished from legislative jurisdiction which is the jurisdiction to establish prescriptive rules and their scope and content; as well as from executive jurisdiction which is the jurisdiction to enforce orders emanating from the judicial of legislative power. Cassese, Gaeta et al, Cassese’s International Criminal Law (n 71) 278–79. 82 H Kelsen, Principles of International Law (Holt, Rinehart and Winston, 1966) 557–59; H Kelsen, General Theory of Law and State (Cambridge University Press, 1945) 363–80. 83 J Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford University Press, 2008) 48. 84 Ibid. 85 MN Shaw, International Law, 6th edn (Cambridge University Press, 2008) 131. 86 H Triepel, Völkerrecht und Landesrecht (Hirschfeld, 1899); K Strupp, ‘Les Règles Générales du Droit International de la Paix’ (1934) 47 Recueil des Cours de l’Académie de Droit International 259; D Anzilotti, Corso di Diritto Internazionale (Athenaeum, 1928).

National Courts and International Crimes  77 individuals as subjects of international law. On the contrary, domestic law applies to the relationship between the state and the individuals and between the individuals themselves.87 However, a court would not be able to adjudicate an individual for, say, crimes against humanity, if no title of jurisdiction was provided by national law to institute proceedings for that crime. This would infringe on the principle nullum crimen sine (scripta) lege. International law does not directly vest national courts with the power to adjudicate international claims,88 as international law typically addresses states, not their national courts. As such, jurisdictional matters are determined by the forum state and not by international law. Yet, to conform to certain international obligations, states may be required to empower their national courts to adjudicate international claims.89 For instance, Article 129 of the Third Geneva Convention provides as follows: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. (…)90

This provision does not directly allocate jurisdiction to states’ national courts, but imposes on the High Contracting Parties an obligation that implies providing national courts with the necessary jurisdiction.91 The point here is that the obligation posited by Article 129 GCIII is incumbent upon states. Whether or not courts can exercise jurisdiction over certain crimes is a matter of national law. Likewise, Article 1 of the Rome Statute sets forth the principle of complementarity which informs the ICC system and acknowledges the primacy of national criminal jurisdictions in the prosecution of international crimes.92 This principle is reinforced by the Preamble of the Rome Statute that recalls the duty of every State to exercise their criminal jurisdiction over those responsible 87 G Arangio-Ruiz, ‘Le Domaine Réservé. L’Organisation Internationale et le Rapport entre Droit International et Droit Interne’ (1990) 225 Recueil des Cours de l’Académie de Droit International 9, 448. 88 A Nollkaemper, National Courts and the International Rule of Law (Oxford University Press, 2010) 5. International law is typically concerned with the power of states than with the power of courts. See ibid, 22. 89 Jurisdiction of the Courts of Danzig (Advisory Opinion) [1928] PCIJ Rep Series B No 15, pp 17–18. 90 See parallel provisions: Article 49 GCI, 50 CGII, 146 GCIV, and Article 85 API. 91 See also Article 5(1) and (2) of the 1984 Convention against Torture, obliging contracting states to provide their domestic courts with necessary jurisdiction, including on the basis of the aut dedere aut judicare principle. 92 See also Articles 15, 17, 18 and 19 ICC Statute.

78  Rethinking Judicial Decisions beyond Formal Architectures for international crimes,93 and emphasises the role of national institutions and measures in the effective prosecution of those crimes.94 However, the Statute does not expressly impose on states the obligation to incorporate the Statute in their national legal orders and indeed less than half of the states parties to the Statute have enacted it in their national legal systems.95 The theoretical articulation of the divide between national and international law seems, however, to be in decline.96 Two elements shall be considered. First, most national legal orders combine elements of both models, providing for instance an automatic incorporation of customary law and a transformation of international treaties.97 Hence, depending on how national law disciplines the way in which international law becomes part of the national legal order, national courts may be empowered to adjudicate on points of international law. Secondly, it does not appear to be disputed that international law is capable of imposing obligations on individuals directly, that is, making them the addressees of international obligations.98 In particular, international criminal law is founded on the idea that legal rules – such as the prohibition to kill a prisoner of war – are directly addressed to individuals and apply regardless of whether the state concerned enacted the necessary legislation to ‘incorporate’, ‘transform’ or otherwise make the international prohibition binding at the domestic level.99 This development finds corroboration in a number of legal instruments dealing with individual criminal accountability under international law.100 For instance, 93 Preamble, sixth recital, of the Rome Statute, adopted on 17 July 1998 and entered into force on 1 July 2002 (Rome, 17 July 1998) 2187 UNTS 3 (‘Rome Statute’ or ‘ICC Statute’). 94 Ibid fourth recital. 95 Amnesty International reports 33 states out of 110, as of 2004. 96 B Conforti, International Law and the Role of Domestic Legal System (Martinus Nijhoff, 1993). 97 For a comprehensive analysis of international law in national constitutions, see A Cassese, ‘Modern Constitutions and International Law’ (1985) 192 Recueil des Cours de l’Académie de Droit International 331, 370. Importantly, some states that recognise the automatic incorporation of customary international law have recognised the limitation of conformity to constitutional law. See the Jones v Ministry of Interior al-Mamlaka al-Arabiya as Saudiya [2006] UKHL 26, [2007] 1 AC 270; and Ferrini v Federal Republic of Germany, Italian Supreme Court (Corte di Cassazione, Sezioni Unite), Judgment No 5044 of 6 November 2003, registered 11 Mar 2004. 98 This, however, does not apply to the penalty that is triggered by the recognition of guilt. The penalty is typically provided by domestic law. 99 See, by way of illustration, the seminal case Streletz, Kessler and Krenz v Germany (2001) 33 EHRR 31. The case concerns the killing of a number of fugitives from the GDR (East Germany) to the BDR (West Germany) between 1971 and 1989 by the applicants who at the time were East German border guards. The applicants challenged their conviction for homicide by the unified Germany, based on the legality principle. Interestingly, the Court affirms in para 20: ‘The fact that the GDR had not transposed those provisions [the right to freedom of movement and the right to life enshrined in the International Covenant on Civil and Political Rights, a treaty ratified by the GDR on 8 November 1974] into its domestic law did not alter its obligations under public international law.’ The Court concludes in paras 90–91 that: ‘… It is therefore necessary to consider whether, at the time when they were committed, the applicants’ acts constituted offences defined with sufficient accessibility and foreseeability under international law, particularly the rules of international law on the protection of human rights’ (emphasis added). 100 Eg see ILC, ‘Principles of International Law Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’ (n 12), in particular the joint reading of Principles I and II as

National Courts and International Crimes  79 the ILC mandated by the UN General Assembly to draft the Principles of International Law recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (1950) in its commentary to Principle II expresses as follows: The principle that a person who has committed an international crime is responsible therefor and liable to punishment under international law, independently of the provisions of internal law, implies what is commonly called the ‘supremacy’ of international law over national law. The Tribunal considered that international law can bind individuals even if national law does not direct them to observe the rules of international law, as shown by the following statement of the judgment: ‘… the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State.’101

From the point of view of international criminal law, the matter seems to be more of a jurisdictional character rather than one that hinges on substantive law.102 It thus acknowledges that rights and obligations, in their substance, address individuals regardless of whether the state has enacted the necessary laws at the national level.103 In the same vein, Gerhard Werle and Florian Jessberger submit that ‘the question of whether domestic (constitutional) law allows the direct application of crimes under international law as defined by treaty or customary law must be carefully distinguished from direct criminalisation under international law. This can be the case, but it need not be; classification of a crime as a crime under international law does not depend on whether a domestic legal system permits domestic courts to directly apply norms of international (criminal) law.’104 Hence, the rule infringed upon appertains to the domain of international law, not necessarily of domestic law,105 albeit the international rule – under the material profile – may have been ‘transformed’ into a domestic one – under the formal profile. From this it follows that, in order for a conduct to amount to an international crime, it is not determinant from a substantive purview that the

follows: Principle I – Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Principle II – The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. 101 Ibid para 102 (emphasis added). 102 See eg Javor et al v X, Tribunal de Grande Instance de Paris (examining magistrate), 6 May 1994, cited in Reydams, Universal Jurisdiction (n 75) 135–36, in which the examining magistrate rejected jurisdiction over crimes against humanity because the concept as incorporated in the French legal order referred to the crimes committed in connection to WWII by or on behalf of the Axis powers, as provided by the Nuremberg Principles. 103 Jessup identified the individual in international law as the main trait of modern international law. PC Jessup, A Modern Law of Nations – An Introduction (Macmillan, 1948) 2; JF Williams, Aspects of Modern International Law (Oxford University Press, 1939) 18. 104 Werle and Jessberger, Principles of International Criminal Law (n 71) 31. 105 R Cryer, ‘International Criminal Law’ in MD Evans, International Law, 3rd edn (Oxford University Press, 2010) 752–782, 753.

80  Rethinking Judicial Decisions beyond Formal Architectures conduct be a crime under national law. Instead, the conduct must be materially criminalised under international law. The incorporation or transformation of international treaties into national legal orders raises questions concerning the interpretation of the incorporated or transformed international rules. First, whether the incorporated and transformed rules of international law gain a national pedigree and, conversely, lose their international one (process of ‘domestication’); secondly, whether national courts ought to resort to the VCLT to interpret the incorporated or translated rules. Both questions appear controversial in literature. As regards the former, one position would contend that the act of incorporation or transformation does not deprive the international rule of its essentially international character.106 However, although in principle an international rule should retain its international footprint upon incorporation or transformation, in practice the character of the rule might not retain a clear international origin. Especially in the context of international criminal law, international legal rules have been assimilated in national criminal codes or in special national statutes. In some instances, the definition of crimes has been modified and adapted to the national context, thus assuming a hybrid nature. In connection to this, the question is hence raised whether the application of the VCLT rules of interpretation by national courts to ‘domesticated’ international rules would help preserve the international footprint of the ‘domesticated’ rules. The blurring divide between national and international law mirrors the blurring of functions between international and national courts in the international legal system. National courts, also as a consequence of the complementarity principle informing the ICC, are assuming a more prominent role in interpreting international criminal law.107 In principle, it appears plausible to analogise national courts interpreting international criminal law with their international counterparts. Yet analogising them by virtue of their performed function does not entail that their judicial decisions will be equally authoritative. This attribute depends on the ability to attract acceptance for their interpretation, which depends, inter alia, on the quality of the legal reasoning and the arguments used to justify the legal findings.108 The extent to which domestic and international courts have interpreted international law rules by looking at international and foreign national practice as ‘a necessary element of judicial decision-making’ remains to be appreciated.109

106 H Lauterpacht, ‘Decisions in Municipal Courts as a Source of International Law’ (1929) 10 BYIL 65, 76–77. 107 During this time, around 30 countries initiated proceedings for international crimes based on territorial or active nationality jurisdiction. Seven trials were set up in Europe, 11 in Latin America, four in Asia and ten in Africa. See Rikhof, ‘Prosecution of International Crimes’ (n 27) 114. 108 See ch 5 and 6. 109 AL Paulus, ‘The Emergence of the International Community and the Divide Between International and Domestic Law’ in J Nijman and A Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press, 2007) 216–50, 248.

Approaching Judicial Decisions in National Adjudication  81 V.  APPROACHING JUDICIAL DECISIONS IN NATIONAL ADJUDICATION

The reliance on prior judicial decisions by national courts is commonly associated with the doctrine of ‘binding precedent’ or stare decisis principle, demanding lower courts to follow prior decisions of higher courts in analogous cases.110 Although the stare decisis principle traditionally finds application in common law systems (eg Canada, the UK, and the US), this does not entail that courts in civil law systems would not defer to judicial decisions of higher courts in their adjudicatory activity.111 However, while a ‘precedent’ is understood as a case offering legal justification upon which to decide later cases, the simple citation of judicial decisions by courts might correspond to different functions and rationales. Throughout national jurisdictions, the effects yielded by judicial decisions greatly vary from formally binding, to non-formally binding, or even merely illustrative.112 While in certain national legal orders, deviation from a formally binding precedent is regarded as contrary to the law, in other jurisdictions courts refer to precedents to show that their decisions harmonise with prior case law.113 Importantly, these considerations pertain to the effects of higher courts’ pronouncements on lower courts within a legal order (internal precedents), which is institutionally organised according to hierarchical levels of judgment, allowing to discern higher from lower courts.114 Instead, the present examination rests with the use of judicial decisions both internal and external to national or international legal orders, and is particularly concerned with the latter.115 In this view, rather than the use of higher courts’ decisions by lower courts, this inquiry especially focusses on instances of national courts relying on international or foreign judicial decisions, or an international criminal jurisdiction resorting to pronouncements of other international tribunals for the purpose of adjudicating international criminal law issues.

110 The US is an example in kind and in fact the judicial practices relative to the notion of ‘unlawful combatant’ patently demonstrates high reliance on prior judicial pronouncement by the US Supreme Court. 111 Comparative law studies have investigated the attitude of domestic courts towards precedent, both in its binding and non-binding form, and whether the legal tradition of common law or civil law affects the reliance on precedent for the determination of a case. See among others N MacCormick and R Summers (eds), Interpreting Precedents – A Comparative Study (Ashgate, 1997). 112 On the point see the thorough work of A Peczenik, ‘The Binding Force of Precedent’ in MacCormick and Summers (eds), Interpreting Precedents – A Comparative Study (n 111) 461–80, 463. 113 Eg the so-called technique of distinguishing allows for deviation from the precedent. 114 To a great extent, the international legal order differs from domestic legal orders, as different international courts and tribunals are not hierarchically organised. 115 External or heterogenic judicial decisions, or external ‘precedent’ latu sensu, indicate a prior judicial decision rendered on a matter analogous to the one to be adjudicated in a later case in a different jurisdiction.

82  Rethinking Judicial Decisions beyond Formal Architectures Against this background, one might ask how can national courts’ reference to external judicial decisions be explained, where they are not bound to follow such decisions? In the case of national courts, the use of international judicial decisions somehow echoes the question of how national law relates to international law within a national legal order, or how sources of international law are incorporated within a national legal order. As explained earlier,116 two archetypical and opposite frameworks describe the relationship between national and international law, namely monism and dualism. Monist systems allow international law sources to become part of the national legal order automatically, without the intervention of a law of enactment. Dualist systems, instead, understand the national and the international legal orders to be separate, enabling international law sources to become part of the national legal order only by laws of enactment. However, monism and dualism are archetypical constructions which are inadequate for depicting many national systems that combine features of both models. This is the case of national legal orders, which differentiate the enactment of international treaties from those of other sources within the national legal order.117 Most importantly, judicial decisions of international courts are not regarded as sources of international law, on the same footing as international treaties or international custom. Yet the use of international judicial decisions by national courts adjudicating international law issues arguably correlates with the way in which the relationship between national and international law is constitutionally governed. Courts operating in monist-like systems may hence be more inclined to refer to international judicial decisions than dualist legal systems.118 Plainly, the fact that a court is familiar with the use of case law or is culturally inclined to investigate what other judges have said on like matters – as in the case of courts in common law systems – may in part offer clues as to why a court uses judicial decisions in its decision-making process. Legal tradition may indeed be a factor to consider when analysing the use of prior judicial decisions in national jurisdictions, with courts in common law systems traditionally more inclined to reason by reference to case law, and familiar with the notion of precedent and stare decisis. Although legal tradition may inform a peculiar style of legal reasoning, it appears that courts operating as much in civil law systems as in common law ones exhibit a tendency to make

116 See ch 3, section IV. 117 Eg Italy and Germany provide for an automatic implementation of international custom within the domestic legal order, while for international treaties a law of enactment is required. 118 For example, the US have, in some instances, formally hindered reference to external legal sources by courts. The question is part of a longstanding debate in the US. See A Fellmeth, ‘US State Litigation to Exclude International and Foreign Laws from the Courts’ (2012) 106 American Journal of International Law 107; N Dorsen, ‘The Relevance of Foreign Legal Material in US Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 International Journal of Constitutional Law 519.

Approaching Judicial Decisions in National Adjudication  83 reference to ‘precedents’, irrespective of whether judicial decisions are regarded as ‘legal sources’.119 It follows that dichotomies such as monism/dualism or common/civil law systems do not seem apt to explain the reliance on international judicial decisions by national courts. Overall, the study of practical instances suggests that judicial decisions are part of the toolkit used by judges in their adjudicatory practices.120 So, the question still stands, namely how can we explain the fact that, in the adjudication of international criminal law, national courts rely on external ‘precedents’ if they are not formally bound to do so? First, it may be considered that, even though international law does not demand stare decisis, the implementation of international law at the national level cannot be easily divorced from relevant judicial practices. From this, it would follow that the application of Article II of the Genocide Convention by a national court would not occur in a vacuum, but would instead warrant consideration of judicial practices relevant for the interpretation of that provision. According to such an understanding, the international legal rule that is implemented at the national level informally brings with it past interpretive practices. Interestingly, this can explain the insistence of international criminal tribunals to invoke the Genocide Convention as the original legal basis for the genocide definition instead of making reference to the foundational instruments of different tribunals. The intention of international courts to guide future practice would not be as successful if they referred to their statutes instead of international treaties which states parties are bound to implement. Secondly, the use of external precedents may indicate deference to the authoritativeness of cited judicial decisions, that is, those issued by international tribunals. In fact, a claim often made in the literature is that courts typically refer to judicial decisions in order to gain more authority,121 to support an argument, or for illustrative purposes.122 It is important to stress that, especially in the case of international criminal law, international criminal tribunals such as the ICTY and ICTR were the first judicial authorities to provide interpretations and to articulate legal reasoning about cardinal legal instruments in the field.123

119 On the point, see Ross, A Textbook of International Law (n 47) 81: ‘By virtue of the tendency to objective regularity, the courts of any legal system will be inclined to decide a case according to the same points of view as have been determining in other similar cases. Therefore the precedents of the courts will always be an important factor, whether precedents are formally recognised as binding (as in British doctrine) or not.’ 120 M Taruffo, ‘Institutional Factors Influencing Precedents’ in MacCormick and Summers (eds), Interpreting Precedents – A Comparative Study (n 111) 437–60, 458. 121 J Bell, ‘Researching Globalisation: Lessons from Judicial Citations’ (2014) 3 Cambridge Journal of International and Comparative Law 961, 969. 122 M Taruffo, ‘Institutional Factors Influencing Precedents’ (n 120) 437–460, 438–39. 123 Eg a concept that has been put forward to elucidate the authority of international tribunals in interpreting international law is the one of ‘semantic authority’ elaborated by Ingo Venzke, and defined as the ‘actors’ capacity to find recognition for their claims about international law and to

84  Rethinking Judicial Decisions beyond Formal Architectures VI.  COURTS CITING JUDICIAL DECISIONS: AN INTERIM EVALUATION

The judicial activity of the ad hoc tribunals has significantly influenced the development of international criminal law.124 Starting from limited written law, the ICTY and ICTR have laid down a conspicuous jurisprudence on substantive definition of the crimes, modes of liability, as well as on the principles of sentencing.125 The enforcement of international obligations is pivotal for the engagement of national courts in the interpretation and application of international law, but not determinant as national courts may, for instance, decide to exercise universal jurisdiction over international crimes upon their own volition. Further, enforcing international obligations incumbent on state organs, including courts, has the potential to explain why national courts embark on the activity of interpreting international law but has little to say on why courts refer to their international and/or foreign counterparts’ judicial decisions in the process of adjudicating international criminal law. The question is thus prompted how these international judicial decisions are used by national courts – whether as evidence of existing rules of customary international law that were ascertained, or for other purposes in legal argumentation. It should be no surprise that national courts refer to prior international judicial decisions, nor that international judicial decisions cite prior relevant national judicial decisions. Judicial citation as a phenomenon in international law suggests reconsidering the role and preponderance of national jurisdictions in the shaping process of international law rules and, as such, it has the potential of adding value to the understanding of contemporary avenues of international law-making. In interpreting international rules, judicial decisions fix an instant image of the existing law which, though relatively stable, undergoes a continuous process of contentrefinement, and necessarily underscores an element of novelty in the law, which has not yet been formalised in prior judicial decisions, or in the lex lata.126 It follows that judicial decisions, among other tools, may be determinative of the content of international law rules and that they may henceforth operate as an avenue to steer later conduct of states, in a similar vein as international treaties

establish reference points for legal discourse that others can hardly escape.’ For Venzke, the struggle for asserting semantic authority unfolds in communicative practices, through the exchange of arguments which are articulated ‘with the language of international law’. See I Venzke, ‘Semantic Authority, Legal Change and the Dynamics of International Law’ in P Capps and H Olsen (eds), Legal Authority beyond the State (Cambridge University Press, 2018) 102–26. 124 This section draws from L Lo Giacco, ‘Swinging between Finding and Justification: Judicial Citation and International Law-Making’ (2017) 6 Cambridge International Law Journal 27. 125 AKA Greenwalt, ‘Pluralism in International Criminal Law’ (2011) 86 Indiana Law Journal 1064, 1076–1077. 126 J Pauwelyn, R Wesser,and J Wouter (eds), Informal International Lawmaking (Oxford University Press, 2013).

Courts Citing Judicial Decisions: An Interim Evaluation  85 or customs do. In other words, international law is subject to the transformative effect of judicial interpretation performed by courts. Written laws take shape in the pronouncements of national and international judges, that is, in their judicial practice. The extent to which this novelty results from new evidence of state practice coupled with opinio juris or from the creative action of the judicial machinery is often a matter of the persuasive argumentation techniques of judges. As interpreters of international law, national courts lay down decisions which, from a doctrinal point of view, are regarded both as subsidiary means to determine rules of law, and as elements of state practice.127 National courts seek to comply with international law, and at the same time shape the understanding of it.128 An example is offered by the UK House of Lords in Pinochet,129 in which the extradition of Augusto Pinochet was requested by Spain to stand trial for acts of torture and crimes against humanity. As a former Head of State of Chile, Pinochet was entitled to immunity ratione materiae for acts performed in official capacity during his office, as recognised in the UK State Immunity Act of 1978. However, the House of Lords decided to interpret the Act in light of international law, and affirmed that the functions of a Head of State cannot as a matter of statutory interpretation, extend to actions that are prohibited as criminal under international law. In this way one can reconcile, as one must seek to do, the provisions of the Act of 1978 with the requirements of public international law.130

This case was later referred to indicate an emerging rule of customary law in the Separate Joint Opinion of Judges Higgins, Kooijmans and Buergenthal to the ICJ judgment in the Arrest Warrant case.131 However, other cases illustrate that jurisprudential development may be tantamount to a violation of international law. Two ostensible examples are offered by a Belgian magistrate issuing an international arrest warrant against the sitting Minister for Foreign

127 Lauterpacht theorises that municipal courts, qua organs of the State, ‘are a source of customary international law in so far as they are uniform and in regard to states the courts of which have participated in the creation of such uniformity.’ Municipal judgments ‘do not produce express and immediate obligations in the same manner as a treaty does (…) But their cumulative and indirect effect is to give expression to the opinio juris of the highest judicial organs of the state.’ See Lauterpacht, ‘Decisions of Municipal Courts as a Source of International Law’ (n 106), 81 and 84. 128 A Tzanakopoulos, ‘Judicial Dialogue as a Means of Interpretation’ in HP Aust and G Nolte (eds), The Interpretation of International Law by Domestic Courts – Uniformity, Diversity, Convergence (Oxford University Press, 2016) 72–95, 90. 129 R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827; R v Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet [2000] 1 AC 147 (Lord Phillips of Worth Matravers). 130 R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827; R v Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet [2000] 1 AC 147 (Lord Phillips of Worth Matravers). 131 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Separate Joint Opinion of Judges Higgins, Kooijmans and Buergenthal) [2002] ICJ Rep 3, para 85.

86  Rethinking Judicial Decisions beyond Formal Architectures Affairs of the Democratic Republic of Congo,132 and by Italian courts’ decisions allowing individual claims to be brought against Germany for war crimes reparation and declaring them enforceable.133 Unlike the Pinochet case, the Belgian and the Italian judicial decisions created a dispute of which the ICJ was seised. As such, the opportunity was given to the ICJ to ascertain or reassert the rule of international law which was violated and thus sanction the conduct as wrongful, rather than as a development in the practice or opinio juris of states. On the contrary, in the field of international criminal law, there is no international court where possible misinterpretations of international law by national courts can be claimed. Indeed, it appears that more informal avenues have been undertaken to exhibit acceptance or dismissal for other courts’ findings on points of international criminal law.134 This section will provide an interim evaluation on the use of judicial decisions by national courts adjudicating on points of international criminal law.135 By resorting to the pair finding/justification as a prima facie classification of the examined instances of judicial citation practices, this interim evaluation offers a starting point to reflect on the extent to which national jurisdictions deciding on points of international criminal law have cited prior international case law. A court may turn to prior relevant judicial decisions in the wake of a finding activity, whereby the content of a certain norm is construed by reference to prior judicial decisions. Alternatively, it may dwell on an activity of justification where the decision on a certain point of law has already been taken and judicial citation has the mere function of supporting that finding. The analysis of judicial decisions of national and international jurisdictions is germane for understanding whether and, if so, how national courts resort to prior international judicial decisions relevant to the matter being decided, and what is suggested by the instances of judicial citation from the viewpoint of formative processes of international law. In particular, it will enable the operation of an embryonic test on the hypothesis that national courts cite international

132 Ibid. 133 Germany seised the ICJ alleging the international responsibility of Italy for the violation of Germany’s jurisdictional immunities. See Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99. 134 For further analysis on the point, see L Lo Giacco, ‘Swinging between Finding and Justification: Judicial Citation and International Law-Making’ (2017) 6 Cambridge International Law Journal 27. 135 Similarly, the practice of international courts citing national judicial decisions cannot simply be explained by resorting to international customary law arguments, or by reference to the argument regarding the determination of general principles of international law. The practice of citing domestic judicial decisions by international jurisdictions is embedded in a legitimisation process, cf Y Shany, ‘Seeking Domestic Help – The Role of Domestic Criminal Law in Legitimising the Work of International Criminal Tribunals’ (2013) 11 Journal of International Criminal Justice 5. Commentators have pointed instead to the notion of ‘persuasive value’ in order to explain the phenomenon of judicial citation in international law. See eg A Zammit Borda, ‘The Notion of “Persuasive Value” of External Precedent in International Criminal Law’ (2015) 84 Nordic Journal of International Law 29, 32.

Courts Citing Judicial Decisions: An Interim Evaluation  87 judicial decisions primarily in a realm of finding, as a reflection of the authority retained by international judicial pronouncements in international law matters. Preliminarily, two national cases, both concerned with the crime of genocide, are scrutinised. This analysis is not aimed at drawing conclusions. Rather, it provides an opportunity to illustrate prima facie divergences or similarities in the reasoning of national judges confronted with a crime under international law, and shows the relevance of the elements discussed thus far, including the interpretive techniques and methods used. The scrutiny of these cases evidences the practice of judicial citation of prior international and foreign national judicial decisions. Judicial citation as a practice of finding arguably sets out an element of ‘newness’ which is relevant for understanding the ways in which a judicial pronouncement contributes to the formation of international law. The first case was brought against François Bazaramba and was adjudicated by a Finnish District Court in 2011 based on the universality principle.136 Bazaramba was charged with genocide for having killed Tutsis, ordered the killing of Tutsis and incited to commit such killings in Nyakisu commune in 1994, with the intent to destroy in whole or in part the Rwandan Tutsis as a group.137 The legal basis for prosecuting acts of genocide before a Finnish Court is the Finnish criminal code which since 1974 incorporates the necessary provisions to criminalise and punish acts of genocide as defined by Article 2 of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’). As rightly recalled by the Court, the criminalisation of genocide is based on the Genocide Convention to which Finland is bound under international law. In appraising the case, the Court clarifies that ‘the provisions [of the Convention] are not as such binding on the Court’ although Finland is party to the 1948 Genocide Convention.138 This entails that, formally, the court is not bound to apply the provisions contained in the international convention but is only bound to apply the criminal provisions contained in the Finnish criminal code which materially reflect the provisions of the Genocide Convention.139

136 Prosecutor v François Bazaramba (Judgment) Porvoo District Court (now District Court of ­Itä-Uusimaa), Finland, 10/423, Docket Nr R09/404 (11 June 2011). English translation of the judgment available at https://www.internationalcrimesdatabase.org/upload/ICD/Upload973/ Bazaramba%20Judgment%20-%20part%20B.pdf. 137 Mr Bazaramba was of Hutu ethnicity, living in Nyakisu commune and, because of his active involvement in local politics and his vicinity to the mayor of Nyakisu, allegedly held at that time a de facto authority over the Hutu in Nyakisu. Further, Mr Bazaramba was ‘in a position to acquire the weapons used in the genocide and to give monetary rewards to the Hutu who took part in the killings.’ 138 Bazaramba Judgment (n 136), p 28. 139 Finland is regarded as a dualist legal system. See M Scheinin, ‘How and Why to Assess the Relevance of Human Rights Norms in “Other” International Courts’ in M Scheinin (ed), International Human Rights Norms in the Nordic and Baltic Countries (Martinus Nijhoff, 1996) 1–27, 14.

88  Rethinking Judicial Decisions beyond Formal Architectures The Court’s reasoning articulates itself into three steps. First, the Court acknowledges the lack of ‘living justice’, namely the scant existence of national case law interpreting the letter of the Genocide Convention from which to infer the constitutive elements of the crime of genocide. Secondly, the Court turns to international law instruments, namely the Genocide Convention and the Vienna Convention on the Law of Treaties to find guidance in the interpretation of the substance of the constitutive elements of the crime of genocide. Thirdly, despite reaffirming the importance of national sources of law as the starting point of its appraisal of the case, the Finnish Court acknowledges the ‘heightened’ international nature of a genocide trial in a national court and the opportunity to refer to international case law and doctrine. In this regard, the Court recalls that The points of departure in Finnish criminal proceedings are always the application of the Finnish Criminal Code and the use of Finnish sources of law. Since in the manners recalled above, the genocide trial may be deemed to have a heightened international nature, the District Court has also studied the development and dogmatics of international criminal law as well as the case law of international criminal courts and tribunals.140

Notably, the court refers to the case law established by the international tribunals (ICTY, Prosecutor v Jelisić, and ICTR, Prosecutor v Bagosora), to the writings of authoritative international scholars in the field of international criminal law (Gerhard Werle) as well as to the French criminal code (Article 211-1) in order to establish whether the international definition of genocide requires proof of the existence of a plan or genocidal policy (as claimed by the defendant).141 Plainly, this instance of judicial citation is portrayed as an exercise of finding, whereby the Court becomes cognisant of the ways in which genocide has been adjudicated in prior international judicial decisions and regarded by legal scholars and in foreign national criminal systems. From a legal point of view, referring to international case law and to the teachings of the most highly qualified scholars in the field appears to be in consonance with Article 38(1)(d) ICJ Statute, to the extent that they are used as subsidiary means to determine rules of law. Instead, reference to the sole French criminal code proves ambiguous from the perspective of the sources of law. The Finnish Court’s reasoning articulates itself in the realm of finding, as the Court declares it necessary to look into prior adjudicated cases in order to find guidance for the correct interpretation of the crime of genocide. Notably, reference to international judicial decisions is operated to interpret the relevant provisions of the Finnish criminal code which are reflective of those of the Genocide Convention. Hence, international and foreign national references 140 Bazaramba Judgment (n 136) p 29. 141 The Finnish Court relies on the findings of the ICTR in Karemera et al (ICTR-98-44-T, Judgment of 11 December 2006) to determine the existence of a genocide in Rwanda in 1994, de facto taking judicial notice of the ICTR findings. See ibid p 33.

Courts Citing Judicial Decisions: An Interim Evaluation  89 are drawn upon ultimately to interpret Finnish national provisions on genocide. This is made possible by qualifying the crime as an international crime with a ‘heightened nature’. Remarkably, the language spoken by the Finnish Court is ultimately an international language,142 accessible to any other national court and which overcomes the insularity of national law when adjudicating a crime under international law. Another case, R v Munyaneza,143 presents analogies with the Finnish case illustrated above.144 The case was decided by a Canadian district court and is the first genocide trial adjudicated in a criminal court of Canada based on the Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, which came into force on 23 October 2000 (‘the Act’, CAHWC).145 The case is relevant for the phenomenon of judicial citation because it deals with the notion of ‘intentional killing’ (first count of genocide) mentioned in international conventional instruments but not used in the general Criminal Code of Canada.146 As observed by the Court, the use of the term ‘intentional killing’ in the Act differs from ‘culpable homicide as murder’ in the Criminal Code and this means that ‘the Canadian legislator wished to refer to the definition of “intentional killing” found in international law and its jurisprudence.’147 On 19 October 2005 Desiré Munyaneza, a Rwandan national residing in Canada, was charged, inter alia, with two counts of genocide by intentional killing and through causing serious bodily or mental harm to the Tutsi people committed in the Prefecture of Butare in Rwanda between 1 April 1994 and 31 July 1994, with the intent to destroy the Tutsi in whole or in part, as defined in subsections 6(3) and 6(4) of the Act.148 The definition of genocide provided by subsection 6(3) of the Act reads as follows: an act or omission committed with the intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission constitutes genocide within the meaning of customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognised by the community of nations.149 142 On the point, see E Benvenisti and GW Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law’ (2009) 20 European Journal of International Law 59, 66. 143 R v Munyaneza [2009] RJQ 1432. 144 Although Canada is party to the Rome Statute, this is not an instance of complementarity since the case concerns acts committed in Rwanda in 1994, before the Rome Statute came into force in 2002. It is instead an instance of universal jurisdiction casting light on how the domestic judge reads and applies prior international case law. 145 Canada, although traditionally regarded as a dualist system, has embraced a more monistoriented approach. For an overview of this development, see S Beaulac, ‘Recent Developments on the Role of International Law in Canada Statutory Interpretation’ (2004) 25 Statute Law Review 19. 146 Munyaneza (n 142) para 81. 147 Ibid para 83. 148 Ibid para 69. 149 Ibid para 70.

90  Rethinking Judicial Decisions beyond Formal Architectures The judgment recalls that the 1948 Convention on the Prevention and Punishment of the Crime of Genocide is the foundation of conventional international law as it pertains to genocide, the definition of which (Article 2 of the Convention) has been incorporated verbatim in the Statute of the ICTY and of the ICTR as well as in the ICC Statute. With a view to determining the content of the law at the time of the commission of the alleged crimes, the Canadian judge makes reference to the Mugesera case, previously adjudicated in Canada, asserting that even without a conventional definition, in 1994 the crime of genocide was in contravention of all the peremptory norms of customary international law. In addition, the court in Munyaneza finds assistance in the foundational instruments of international tribunals (including the ICC to which Canada is party) and in the case law of ICTY and ICTR to interpret the meaning of ‘intentional killing’ (Prosecutor v Brđanin). The same approach is followed to ascertain the meaning of ‘serious bodily or mental harm’ for which the court also explicitly refers to the ICTR and ICTY jurisprudence (Prosecutor v Akayesu and Prosecutor v Kajelijeli). Interestingly, the Canadian court refers and draws authority from both ad hoc tribunals, not merely from the ICTR which was specifically mandated to deal with the Rwandan genocide. As noted by some commentators, ‘international criminal law and jurisprudence acted as guidance for the court in defining those offences (‘intentional killing’, ‘serious bodily and mental harm’, etc …)’,150 evidencing a significant degree of deference to the ad hoc tribunals’ case law. Similarly to the Bazaramba case, the Munyaneza judgment denotes an ‘internationally-oriented, outward-looking view that the CAHWC clearly demands of Canadian law’, although more willing to cite relevant national case law than foreign national precedents.151 Once again, judicial citation of prior international judicial decisions plays as a finding exercise rather than a justificatory device. An explanation thereof may reside in the authority traditionally associated with international jurisdictions on points of international law. National courts emerge as reluctant to take up the challenge of interpreting and applying international law without citing prior relevant case law. Therefore, the cases analysed allow a preliminary claim to be advanced: national judicial decisions prima facie cite international jurisprudence in an exercise of finding. As demonstrated by the Bazaramba case in Finland, citing international judicial decisions and foreign national law sources responds to the ‘heightened’ nature of crimes under international law, which result from violations of peremptory norms. The analysis of national judicial citation displays

150 RJ Currie and I Stancu, ‘R. v Munyaneza: Pondering Canada’s First Core Crimes Conviction’ (2010) 10 International Criminal Law Review 829, 848. 151 Ibid 850.

Courts Citing Judicial Decisions: An Interim Evaluation  91 a prima facie deference to international judicial decisions for the interpretation of substantive rules of international criminal law. Articulated in the realm of finding, international judicial decisions are indeed referred to as guidance to the interpretation of international criminal law, or – more accurately – to a widelysupported interpretation of international law rules. Instances of judicial citation as a finding exercise are germane to understanding how international judicial decisions have shaped international law and what role they have played in national courts’ decision-making. Further inquiring into national judicial decisions on points of international criminal law – and international law at large – may be revelatory of practices of mutual interaction between international and national courts and among national courts themselves, underscoring elements of continuity, rather than of separation, between the international and the domestic law sphere, as emphasised by the classic monism-dualism opposition.152 The increasing use of legal sources and judicial decisions external to the ‘self-contained legal system’ suggests that novel features, other than ‘self-containment’, shall shape the contemporary discourse on the international-national divide.153 Moving from this interim scrutiny of national courts’ decisions, the following chapter will further zoom in on the dynamic of citation in international and national courts adjudicating on selected thematic areas of international criminal law.

152 G Gaja, ‘Dualism – A Review’ in Nijman and Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (n 109) 52–62, 56. 153 On the point, see J Nijman and A Nollkaemper, ‘Beyond the Divide’ in Nijman and Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (n 109) 341–60, 341: ‘One may question, however, whether these interactions have not become so manifold as to have undermined the self-contained nature of international and domestic legal systems.’ Considering the increasing involvement that national jurisdictions will play in the adjudication of international crimes in the future, it is suggested that the dynamics of judicial citation will likely pave the way towards judicial citation between domestic decisions, signalling the migration of authority from international jurisdictions to domestic jurisdictions.

4 The Entrapment of Judicial Decisions

T

his chapter is concerned with illustrating the practice of judicial ­citation. It does not aim to be comprehensive. Rather, it shows that international and national courts alike have cited judicial decisions while adjudicating on points of international criminal law and that the result of such practice may be effectively explained by reference to two competing models: incrementalism and revisionism. I.  CITING JUDICIAL DECISIONS AS A STRUCTURING DEVICE: INCREMENTALISM VERSUS REVISIONISM

Interpretation is a dynamic process. To account for this dynamism in a viable way and to chart the itinerary of individual judicial decisions in later cases, a retrospective look at judicial decisions is assumed.1 In addition, this approach enables us to single out the reason for the action chosen by a court in the determination of legal cases and to appreciate that axiological preferences – or ‘structural bias’2 – have indeed underpinned the activity of a court. It is worth repeating that judicial decisions are dealt with as norm-descriptive propositions,3 namely as statements of what courts have understood as a correct interpretation of the law. The focus of the inquiry is thus on a particular form of institutional legal reasoning, rather than on ascertaining whether the meaning assigned by courts to legal provisions is correct from a doctrinal viewpoint.4 Instead of looking at 1 In this regard, Catherine Brölmann and Yannick Radi aptly observe that ‘at a conceptual level an investigation into lawmaking as a separate phenomenon makes sense only if law is taken at least partly, as a static body of rules’. See C Brölmann and Y Radi, ‘Introduction: International Lawmaking in a Global World’ in C Brölmann and Y Radi (eds), Research Handbook on the Theroy and Practice of International Lawmaking (Edward Edgar, 2016) 1–10, 2. 2 M Koskenniemi, ‘What is Critical Research in International Law? Celebrating Structuralism’ (2016) 29 Leiden Journal of International Law 727. 3 On the point, see J von H Holtermann, ‘Naturalising Alf Ross’s Legal Realism – A Philosophical Reconstruction’ (2014) 24 Revus: Journal of Constitutional Theory and Philosophy of Law 1, 5. As mentioned earlier (ch 2, section I), Holtermann refers to the so-called ‘propositional attitude report’ by Gottlob Frege, ie an agent A believes/claims that P [proposition]. 4 Brian Tamanaha distinguishes three potentially complementary ‘angles’ from which to look at the law: a normative angle, typical of natural law approaches; an analytical or conceptual angle, typical of legal positivism; and an empirically oriented angle, typical of social legal theory. See BZ Tamanaha, ‘The Third Pillar of Jurisprudence: Social Legal Theory’ (2015) 56 William & Mary Law Review 2235, 2266–2267.

Incrementalism versus Revisionism  93 the citation of internal precedents, the analysis primarily concentrates on external (or heterogenic) judicial decisions, that is, issued by courts different than the one invoking them, with a view to better understanding how precedents work across a plurality of judicial institutions. It considers the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (1993–2017), the International Criminal Tribunal for Rwanda (ICTR) (1993–2017), the Special Court for Sierra Leone (SCSL) (2002–2013) and of the International Criminal Court (ICC) (2002–ongoing). This delimitation is determined based on the overlapping competence ratione materiae among these courts and tribunals.5 The first three jurisdictions are shut down to date,6 while the ICC, being a permanent judicial institution, is still operative. Other international criminal jurisdictions, that is, the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), fall outside the scope of this research either on account of their subject-matter jurisdiction,7 or owing to the lack of a congruous volume of case law.8 As this study considers citation practices as evidence of the dynamic formative processes of international law in a diffused adjudicatory context,9 the timeframe assumed to delimit the case law flows from the selected international criminal jurisdictions, namely from 1993 – the year when the ICTY was established, followed by the ICTR in 1994, the ICC and the SCSL in 2002. The material scrutinised in the following chapters evidences that the position of courts (both international and national) vis-à-vis past interpretations, 5 Accordingly, the UN Special Tribunal for Lebanon, competent to hear cases of international terrorism, is excluded from the pool of jurisdictions examined by the book, as this is the sole currently existing international criminal jurisdiction having such competence ratione materiae. 6 The so-called Residual Mechanism for Criminal Tribunals has been established by the UN Security Council on 22 December 2010, as part of the completion strategy of the ICTY and ICTR. The Mechanism, which is structured and organised as an international criminal tribunal, is responsible for, inter alia, ‘the enforcement of sentences, administrative review, assignment of cases, review proceedings, appeal proceedings, contempt, requests for revocation of the referral of cases to national jurisdictions, the variation of witness protection measures, access to materials, disclosure, changes in classification of documents and requests for compensation and assignment of counsel.’ For additional information, see http://www.irmct.org/en/about/functions. 7 The STL is competent to prosecute specific acts of terrorism. See Article 1 of the STL Statute: ‘The Special Tribunal shall have jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafik Hariri and in the death or injury of other persons (…)’ read in conjunction with Article 2 of the STL Statute, which makes reference to relevant law on the crime of terrorism as applicable by the Tribunal. 8 This applies both to the STL and the ECCC. While the STL rendered only one judgment in the Prosecutor v Ayyash et al case (Judgment) STL-11-01/T/TC (18 August 2021), the ECCC has only adjudicated over two cases. See Co-Prosecutors v Kaing Guek Eav (‘Duch’) (Trial Judgment) No 001 (26 July 2010); Co-Prosecutors v Kaing Guek Eav (‘Duch’) (Appeal Judgment) No 001 (2 February 2012); Co-Prosecutors v Nuon Chea and Khieu Samphan (Trial Judgment) No 002/1 (7 August 2014); Co-Prosecutors v Nuon Chea and Khieu Samphan (Appeal Judgment) No 002/1 (23 November 2016). 9 Eric Posner described the ‘international adjudicatory environment’ as ‘a bewildering jungle of judicial, quasi-judicial, and advisory bodies, some global and some regional or bilateral, with overlapping jurisdiction and no hierarchical structure to ensure uniformity in the law.’ See EA Posner, The Perils of the Global Legalism (University of Chicago Press, 2009) 150.

94  The Entrapment of Judicial Decisions although varied, can be rationally organised according to two models. As such, judicial citation is presented as an avenue structuring legal interpretation towards certain interpretive outcomes. These two models do not purport to be a perfect representation of all judicial practices; rather, they provide categories of classification. Collecting, juxtaposing, organising, and making sense of the use of judicial decisions is in itself a practice of rationalising the use of judicial decisions. The first model, which may be termed incrementalist, hinges on the incremental formation of the meaning of a legal rule through judicial decisions. Such a model reflects a harmonious relation between prior and subsequent judicial decisions, in that they stabilise interpretive outcomes towards a certain course of action, and progressively fine-tune the meaning of terms embedded in relevant legal provisions or the content of legal rules. Prior judicial decisions are used as reference points in legal interpretation, as a basis to reaffirm prior interpretations or to incrementally contribute to them.10 The second model, called revisionist, refers to practices in which courts take a different course of action, departing from prior judicial decisions. Also in this context, judicial decisions are cited in support of the different courses of action chosen.11 These two models are susceptible to producing two incommensurable positions, namely a perfect alignment with prior judicial decisions and a radical departure from prior judicial decisions. The perfect alignment position entails that later courts follow prior judicial decisions on a point, as if the use of such judicial decisions were uncritical, or as if later courts perceived that they can neither depart from prior interpretive outcomes nor contribute to further development. Reference to judicial decisions is accompanied by precise excerpts (or paragraphs), which marginalise the text of the applicable legal provisions, in that prior authoritative statements of the law appear to assume prominence in a court’s decision-making process. Such practices of judicial citation essentially show that courts tend to invoke prior judicial decisions in lieu of engaging with the interpretation of primary sources, and that the practice of referring verbatim to prior judicial decisions exhibits static positions rather than dynamic ones, generally associated with interpretive activities in law. The radical departure instead points to the attitude of disregarding prior judicial decisions, in a way that may be understood as contrary to the law. This marks the undertaking of a different course of action from that set by prior judicial decisions, yet by reference to judicial decisions supporting the choice of that course of action. The practices scrutinised evidence that cases having a direct link with the national jurisdiction – for instance, the alleged 10 This model is epitomised by the international judicial decisions relating to the legal concept of ‘protected group’, which refined the meaning of this term, progressively. For a full-fledged analysis on the point, see section II.A. 11 Eg Israeli courts’ decisions citing US decisions on ‘unlawful combatants’. See ch 5, section III.

The Road Towards the Stabilisation of Interpretive Outcomes  95 international crimes were committed on the forum territory – are likely to fall within a revisionist model.12 To this may be added a consideration on the style in which cited judicial decisions have been laid down, namely a prospective and a retrospective mode.13 Prospective style attaches to a judicial decision when this is worded in such a way that it seeks to steer later courts’ decisions in like cases. This is, for instance, the case of the ICTY in Tadić which, in laying down definitional categories (concept of armed conflict, war crimes, etc.), has been able to affect later judicial practices. A prospective mode is also typical of judicial decisions identifying rules of customary international law, or clarifying the existence of a general principle of law. Indeed, the fact that a court has ascertained the existence of a rule of international law can hardly be disregarded by later practices. Conversely, a retrospective style is typical of judicial decisions that show adherence to a stable interpretive outcome, by reference to a chain of past decisions. II.  THE ROAD TOWARDS THE STABILISATION OF INTERPRETIVE OUTCOMES

This section aims to illustrate the way in which judicial decisions became engendered in the argumentation of international law, and to critically evaluate the normative effects that such judicial decisions determined on the understanding of relevant legal rules. An external and an internal perspective are thus combined. The external perspective aims to describe the courts’ behaviour in citing judicial decisions. The internal perspective pertains to the norms that courts have adduced to justify reference to prior judicial decisions, and the relevance that they have ascribed to judicial decisions in their legal argumentation. In order to proceed, it is worth clarifying once more that judicial decisions are approached as arguments justifying findings in law, rather than as proper sources of law. Pertinent for such an approach is the tripartite classification that Antonio Cassese once gave of judicial decisions as a means used in order to establish: (i) whether a customary rule has formed; (ii) whether a general principle of law exists; (iii) whether a prior judicial interpretation is convincing and if so applicable.14 Whereas the first and the second variations rest on formal sources of international law – and arguably draw their force from relying 12 Reference is here made to the scrutinised practices of eg Argentina, the US, and Israel. 13 This distinction is drawn from A Peczenik, ‘The Binding Force of Precedent’ in N MacCormick and R Summers (eds), Interpreting Precedents – A Comparative Study (Ashgate, 1997) 461–480. 14 A Cassese, ‘The Influence of the European Court of Human Rights on International Criminal Tribunals – Some Methodological Remarks’ in M Bergsmo (ed), Human Rights and Criminal Justice (Martinus Nijhoff, 2003) 19– 52, 19– 20 (emphasis added).

96  The Entrapment of Judicial Decisions on sources of international law – the latter hinges on the quality of a legal reasoning and the arguments used by the court in issuing a judicial decision. The quality of a legal reasoning or the persuasiveness of the legal arguments are subjected to an evaluative assessment of later courts. Thus, whether or not the effects of a certain judicial decision exceed the boundaries of the adjudicated case cannot be determined a priori. The analysis of judicial decisions that follows shall be understood in an argumentative framework where judicial decisions are used to establish whether a prior judicial interpretation is convincing and is so applicable. A.  Interpreting ‘Protected Group’ in Genocide Cases Genocide15 materially entered the legal domain with a memorandum presented by US Prosecutor Robert Jackson at the 1945 London Conference establishing the International Military Tribunal in Nuremberg (‘Nuremberg Tribunal’ or IMT).16 The memorandum referred to ‘[g]enocide and destruction of racial minorities and subjugated populations by such means and methods as (1)  underfeeding; (2) sterilisation and castration; (3) depriving them of clothing, shelter, fuel, sanitation, medical care; (4) deporting them for forced labour; (5) working them in inhumane conditions’.17 However, genocide was eventually excluded from the subject matter jurisdiction of the Nuremberg Tribunal, which was instead mandated to adjudicate war crimes, crimes against humanity, and crimes against peace, pursuant to Article 6 of the London Agreement concluded among the Allied Powers. Genocide was recognised as a self-standing category of crime only in 1948,18 with the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide by the United Nations General Assembly.19 Further to outlawing genocide as a crime under international law (Article I), the Convention provides it with a legal definition (Article II) that has so far been reproduced

15 In the 1940s, genocide was a neologism introduced by the jurist Rafael Lemkin. See A Cassese, P Gaeta et al, Cassese’s International Criminal Law, 3rd edn (Oxford University Press, 2013) 109. 16 WA Schabas, The International Criminal Court – A Commentary on the Rome Statute (Oxford University Press, 2010) 119. 17 Cf ibid referring to ‘Planning Memorandum distributed to Delegations at Beginning of London Conference, June 1945’ in Report of RH Jackson, United States Representative to the International Conference on Military Trials (US Government Printing Office, 1949) 68. 18 The term genocide was in fact mentioned in the proceedings of the Nuremberg Tribunal in relation to acts of persecution committed against Jews people and amounting to crimes against humanity. See eg Trial of Ulrich Greifelt and Others, United States Military Tribunal, Nuremberg, Case No. 73, 10 October 1947–10 March 1948, United Nations War Crimes Commission – Law Reports of Trials of War Criminals, Vol II, 6–12, 36–42. 19 Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948; entered into force on 12 January 1951, 78 UNTS 277. To date 149 states are party to the Genocide Convention.

The Road Towards the Stabilisation of Interpretive Outcomes  97 verbatim in all relevant international legal instruments, in particular in the statutes of international criminal jurisdictions:20 Article II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

The legal definition of the crime of genocide pursuant to Article II of the Genocide Convention has been upheld by the Statute of the International Criminal Court (ICC Statute or Rome Statute), under Article 6. A number of commentators have acknowledged the rigidity of this definition of genocide, insofar as it provides for an exhaustive list of underlying offences and of protected groups. Yet, as this section will show, judicial interpretation has ‘softened’ such rigidity.21 Despite the entry into force of the Genocide Convention in 1951, most of the national judicial decisions existing on the matter were issued after the 1990s, namely after the establishment of the UN ad hoc tribunals in 1993 and 1994. The Greiser case (1948) in Poland and the Eichmann case (1961) in Israel are among the very few examples of national judicial decisions rendered on genocide before the establishment of the ad hoc tribunals. Arguably, the jurisprudence of the ICTY and ICTR has had a catalysing force on national prosecutions, rather than an incumbent treaty obligation upon states to ensure the criminalisation and punishment of acts of genocide (Articles III, IV and V of the Genocide Convention). In fact, the development of national judicial practices appears to be explained only to a limited extent by the obligation to implement existing international treaty obligations. Other factors, such as the development of international judicial practices by the UN ad hoc tribunals, seem to offer more persuasive reasons for the increasing national engagement in the prosecution of acts of genocide.22 A good illustration thereof is the Jorgić case decided by the Düsseldorf Higher Regional Court (1997), the Federal Court of Justice (Appeal Judgment, 1999), and the German Constitutional Court in 2000.23 The case concerned the prosecution of a Bosnian Serb national, resident in 20 Cf Article 4 of the ICTY Statute, Article 2 of the ICTR Statute, and Article 6 of the ICC Statute. 21 Cassese, Gaeta et al, Cassese’s International Criminal Law (n 15) 110. 22 This aspect justifies the temporal delimitation of domestic judicial decisions, which are considered by the present investigation, namely those subsequent to the establishment of the two ad hoc tribunals. 23 Prosecutor v Jorgić, BVerfG, Individual Constitutional Complaint, 2BvR 1290/99, ILDC 132 (DE 2000), 12 December 2000.

98  The Entrapment of Judicial Decisions Germany, for acts of genocide committed during the ethnic cleansing campaign in Bosnia-Herzegovina in 1992. It is the first case in which a German court has exerted universal jurisdiction over acts of genocide committed outside the territory of Germany. To be sure, legislative measures implementing the 1948 Genocide Convention at the national level had been adopted following the entry into force of the Genocide Convention in 1951 (Section  220a of the German Criminal Code (StGB) amended in 1954, and transposed into Sections 1 and 6 of the German Code of Crimes under International Law), but no case on genocide was ever adjudicated by German courts before 1997. The following section considers judicial decisions laid down by international jurisdictions while interpreting the concept of protected group under the legal definition of genocide. Its purpose is to illustrate the use of prior judicial decisions in the interpretation of this legal concept by international and national courts, and to appraise how the cited instruments have contributed to the formation of the meaning of legal rules. It would be beyond the purpose of this section – and of this research more generally – to advocate for any particular interpretation, or to reach a sound conclusion of how protected groups should be understood for the purposes of prosecuting acts of genocide.24 This inquiry rather explores, from a structural standpoint, the use of judicial decisions in the adjudication process by courts, and seeks to rationalise such use. B.  Discretion in the Interpretive Practices of ‘Protected Group’ For the crime of genocide to materialise, one of the underlying offences, enumerated under Article II (a-e) of the Genocide Convention or under the relevant provisions enshrined by the relevant applicable statutes (Article  2 of the ICTY Statute and Article 2 of the ICTR Statute), shall be committed against a protected group with the intent to destroy that group in whole or in part. Hence, the concept of protected group, being constitutive of the crime of genocide, is of fundamental importance to ascertain that an act of genocide has been committed. The existence of a protected group within the terms of the Genocide Convention is essentially an act of characterisation. This entails that, even when the terms of a legal provision may be considered clear, it ultimately rests with the interpreter to establish the criteria to identify the existence of a protected group and to assess the features of it.25 The application of rules that follows 24 As emphasised in the theoretical approach section, the purpose is to account for normdescriptive statements as expressed by courts, not to suggest ought-propositions. Needless to say, norm-descriptive statements expressed by courts would presuppose ought-propositions, as they apply the law as they believe it stands (‘normative ideology’). See ch 3, section II. 25 V Lowe, ‘The Politics of Law-Making: Are the Methods and Character of Norm Creation Changing?’ in M Byers (ed), The Role of Law in International Politics – Essays in International Relations and International Law (Oxford University Press, 2000) 207–226, 213.

The Road Towards the Stabilisation of Interpretive Outcomes  99 the act of characterisation is hence dependent on a legal evaluation of the facts undertaken by the interpreter.26 Owing to the interpretive work of the ad hoc tribunals, the definition of protected groups has been elucidated. The ICTR judgment in the case Prosecutor v Akayesu27 was the first ever international judicial decision which interpreted the concept of genocide and clarified the meaning of its constitutive elements. As such, the judgment defined the concept of protected group pursuant to Article 2 of the ICTY Statute, which reproduced verbatim the definition of genocide enshrined in the 1948 Genocide Convention (Articles II and III).28 Some national courts have, however, departed from international judicial decisions, widening the legal protection in cases where protected groups have been interpreted with more flexibility (eg political groups as part of national groups) or where national sources (ie penal codes) enlarged the protection towards self-standing categories of protected groups, including for instance political or social groups. Hence, although pronouncements of international and national criminal tribunals interpreted the legal definition of genocide with a certain degree of consistency, some judicial decisions have expanded or narrowed down the definition of legal concepts provided by Akayesu and in similar cases. The protected groups enumerated in the Genocide Convention, namely national, ethnical, racial, and religious, retain a certain mutability, despite the efforts of judicial practices to clarify the concept of ‘group’ and to lay down a definition for each protected group. An important element is to be traced in the fact that concepts such as that of ethnicity or of religion might not, as a matter of fact, be understood today as they were in 1948.29 As recalled earlier, the ICTR in the Akayesu case has been the first international criminal tribunal to clarify the scope and content of genocide, to provide meaning to the constitutive elements of the crime, as laid down in the Genocide Convention, such as ‘group’, ‘national’, ‘ethnical’, ‘racial’, ‘religious’. Importantly, the ICTR’s interpretation not only provided definitional categories, but also determined the approach to the legal definition of genocide, in particular whether it ought to be considered as a minimum rather than an exhaustive definition. The Trial Chamber defined a protected group as a collection of individuals with stable characteristics, and as encompassing any stable groups,

26 Ibid. 27 Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998). 28 As such, the interpretation provided by the ICTR of the legal category of genocide can in principle be extended to the definition in the Genocide Convention. This would not apply in case of different definitions of the crime of genocide, such as the one which the Jerusalem District Court interpreted in the Eichmann case. See Attorney General v Eichmann, District Court of Jerusalem, Criminal Case No 40/61, Judgment of 11 December 1961. 29 J Verhoeven, ‘Le crime de génocide, originalité et ambiguïté’ (1991) 1 Revue belge de droit international 5.

100  The Entrapment of Judicial Decisions beyond those enumerated under the definition of Article 2 ICTR Statute, and in Article II Genocide Convention. 511. On reading through the travaux préparatoires of the Genocide Convention [Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September – 10 December 1948, Official Records of the General Assembly], it appears that the crime of genocide was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not changeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.30

The ICTR Trial Chamber goes on to provide a definition of each protected group: 512. Based on the Nottebohm decision rendered by the International Court of Justice …, the Chamber holds that a national group is defined as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties. 513. An ethnic group is generally defined as a group whose members share a common language or culture. 514. The conventional definition of racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors. 515. The religious group is one whose members share the same religion, denomination or mode of worship.31

Interestingly, to define a national group, the chamber draws from the seminal ICJ Nottebohm case (1955) pertaining to diplomatic protection.32 Despite the lack of a precise reference, the relevant passage for the chamber’s reasoning appears to be the following, for it refers to legal bond and existence of reciprocal rights and duties: According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together 30 Akayesu Trial Judgment (n 27), para 511. 31 Ibid paras 112–115. The same understanding of protected groups is upheld by the Trial Chamber in Prosecutor v Kayishema and Ruzindana (Judgment) ICTR-95-1-T (21 May 1999), para 98: ‘The intent must exist to “destroy a national, ethnical, racial or religious group, as such.” Thus, the acts must be directed towards a specific group on these discriminatory grounds. An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others). A racial group is based on hereditary physical traits often identified with geography. A religious group includes denomination or mode of worship or a group sharing common beliefs.’ 32 Nottebohm case (Liechtenstein v Guatemala) (Second Phase, Judgment) [1955] ICJ Rep 4.

The Road Towards the Stabilisation of Interpretive Outcomes  101 with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.33

The interpretation of nationality provided by the ICJ in the Nottebohm case is hence grounded on state practice, as well as on judicial practice and scholarly writings, despite the latter categories not being formal sources of law. In defining the concept of national group for the purposes of the crime of genocide in Article 2 of the ICTR Statute, the ICTR Trial Chamber operates three important moves. First, from a formalistic perspective, the Trial Chamber was mandated to interpret the ICTR Statute. The Chamber articulates such interpretation by considering that the ICTR Statute definition is identical to the one contained in the Genocide Convention. This definitional overlap enabled the Chamber to apply the supplementary means of interpretation produced in the context of the Genocide Convention (ie the travaux préparatoires) to the ICTR Statute. By virtue of this, the Chamber could make reference to the will of the drafters of the Genocide Convention. Plainly, the Genocide Convention is the original treaty source, from which the definition of genocide under Article 2 ICTR Statute is drawn. Still, no renvoi to the Genocide Convention is provided in the Statute which would, to a certain extent, justify the reference to the Convention travaux préparatoires.34 Secondly, to interpret the meaning of ‘national’, the ICTR Trial Chamber refers to the ICJ’s Nottebohm case pertaining to the ascertainment of a bond of nationality for the purposes of diplomatic protection, in a case in which the individual, Nottebohm, had dual nationality.35 Thirdly, the Chamber overlooks the travaux préparatoires – previously invoked to define the concept of group – which could have suggested another interpretation of national group. An example in kind is offered by the Etchecolatz case,36 in which an Argentinian criminal court provided a more expansive interpretation of the term ‘national’, by reference to the travaux préparatoires of the Genocide Convention and to UN General Assembly Resolution 96(I) of 1946. Also, the Jorgić case, mentioned earlier, embeds an interpretation of protected group that deploys novel elements. In particular, the German court found that

33 Ibid p 23 (emphasis added). 34 This is for instance the case of Article 4 of the ICTR Statute, relating to violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, as well as of Article 2 ICTY Statute, on grave breaches of the 1949 Geneva Conventions. 35 The comparison with diplomatic protection may indeed appear far-fetched, as remarked by WA Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press, 2009), 134–35; MN Shaw, ‘Genocide in International Law’ in Y Dinstein (ed), International Law at a Time of Perplexity (Essays in Honour of Shabtai Rosenne) (Martinus Nijhoff, 1989) 797–820, 807. 36 Prosecutor v Etchecolatz (Miguel Osvaldo), Buenos Aires (Province), La Plata, Federal Oral Criminal Court No 1, Judgment, 19 September 2006.

102  The Entrapment of Judicial Decisions a protected group could be defined on the basis of a geographical differentiation. Accordingly, it interpreted acts threatening the social unit with its special qualities, uniqueness, and feeling of togetherness as targeting a protected group within the terms of the Genocide Convention.37 The ICTR Trial Chamber then turns to the question of whether acts of genocide committed against stable groups, other than those enumerated in the genocide definition, could be prosecuted based on the Genocide Convention. Importantly, this question revolves around whether the definition of genocide under the Genocide Convention should be regarded as a minimum definition or as an exhaustive one. Such an approach would enable the encompassing of acts committed against any stable groups, not necessarily national, ethnical, racial, or religious under the concept of genocide. Notably, this represents a neat illustration of the measure of discretion which an interpreter may infer from the formulation of legal provisions. Should the definition be regarded as exhaustive, the interpreter would enjoy a more limited range of discretion than the one that a minimum definition would confer on him/her. The following interpretive practices emblematically illustrate that both courses of action have been upheld by the ad hoc tribunals in two different cases. The following passage illustrates that the ICTR Trial Chamber has understood the genocide definition as a minimum definition. This approach is justified



37 Jorgić

(n 23), paras 20–22. See also paras 25–34. Oberlandesgericht und Bundesgerichtshof sehen durch §220a StGB die Gruppe geschützt; sie haben übereinstimmend die Absicht des §220a StGB dahin ausgelegt, dass sie die Zerstörung der Gruppe – auch eines geographisch begrenzten Gruppenteils – als sozialer Einheit in ihrer Besonderheit und Eigenart und in ihrem Zusammengehörigkeitsgefühl, nicht notwendig ihre physisch-biologische Vernichtung umfasse. Beide Gerichte gehen dabei davon aus, dass der Täter als Mittel der Zerstörung vor allem die in §220a Abs. 1 Ziffer 1 bis 5 StGB genannten Handlungen selbst oder durch andere einsetzen wollen muss. Als möglicherweise selbständige weitere Mittel werden genannt Inhaftierung unter unmenschlichen Bedingungen, Zerstörung und Plünderung von Häusern und für die Gruppe wichtigen Gebäuden sowie Vertreibung von Gruppenangehörigen. Es genüge, wenn sich der Täter die Absicht der vom Tatbestand vorausgesetzten strukturell organisierten zentralen Lenkung – ggf. in Bezug auf einen Gruppenteil – zu Eigen mache. Die entsprechende Absicht der zentralen Lenker könne sich auch aus deren politischen Äußerungen ergeben. (emphasis added) (…) Der Ausgangspunkt der angegriffenen Urteile, der Völkermordtatbestand schütze ein überindividuelles Rechtsgut, nämlich die soziale Existenz der Gruppe, findet in dem Wortlaut der Norm darin einen Anhaltspunkt, dass sich die Zerstörungsabsicht gegen die ‘Gruppe als solche’ richten muss. Die in §220a StGB vorausgesetzte Absicht der Zerstörung der Gruppe ist schon nach dem natürlichen Wortsinne weiter als die physisch-biologische Vernichtung. Das folgt auch daraus, dass das Gesetz in §220a Abs. 1 Nr. 3 StGB Zerstörung mit dem besonderen Attribut ‘körperlich’ versieht, um damit die Eignung der Tathandlung zur physischen Vernichtung der Gruppe zu bezeichnen. Zudem bezeichnet §220a Abs. 1 Nr. 4 StGB einen Sonderfall der biologischen Vernichtung der Gruppe, ohne dass sich dies auf die gegenwärtig lebenden Mitglieder bereits im Sinne einer physischen Vernichtung auswirkt. Dass es Absicht des Täters sein muss, zumindest eine substantielle Zahl an Mitgliedern der Gruppe auch physisch zu vernichten, ergibt sich danach nicht zwingend aus dem Wortlaut (…) (emphasis added). Importantly, the BVerfG decision in Jorgić refers to the Akayesu case (paras 523 et seq) in order to determine the elements to prove the special intent to destroy the group. Cf Jorgić (n 23), para 32.

The Road Towards the Stabilisation of Interpretive Outcomes  103 by reference to the intention of the drafters of the Genocide Convention, as reported in the travaux préparatoires. 516. Moreover, the Chamber considered whether the groups protected by the Genocide Convention, echoed in Article 2 of the Statute, should be limited to only the four groups expressly mentioned and whether they should not also include any group which is stable and permanent like the said four groups. In other words, the question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention. In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group.38

Hence, by appealing to the intention of the drafters of the Genocide Convention, the ICTR Trial Chamber finds that any stable and permanent group would potentially fall under the rubric of protected group in the terms of the Genocide Convention. Yet a closer look at the drafting history shows not only that the negotiators of the Convention purposefully restrained the Convention protection to stable groups determined by birth, but also that, for this very reason, other groups such as political, economic, and social ones were excluded because they were not sufficiently stable and determined by birth.39 On this basis, one may conclude that the interpretation of the ICTR Trial Chamber is not fully convincing, in that it omits important legal arguments that could have determined a different course of action. On the contrary, the ICTY in the Jelisić case40 maintains the exhaustive character of the protected groups enumerated in the genocide definition.41 In conjunction with this position, the Trial Chamber in Jelisić resorts to subjective criteria to identify the existence of a protected group, and justifies the introduction of this test by reference to a prior judicial decision by the ICTY Trial Chamber in the Nikolić case. 69. Article 4 of the Statute protects victims belonging to a national, ethnical, racial or religious group and excludes members of political groups. The preparatory work of the Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting ‘stable’ groups objectively defined and to which individuals belong regardless of their own desires. 70. Although the objective determination of a religious group still remains possible, to attempt to define a national, ethnical or racial group today using objective 38 Akayesu Trial Judgment (n 27), para 516 (emphasis added). 39 UN Doc. A/C.6/SR. 65, 66, 71, 75, 21, 31, 58, 59, 61, 74, 111; R Lemkin in: Secretariat Draft Commentary (UN Doc. E/447), 22; Ad Hoc Committee Draft Commentary (UN Doc. E/794), 13. CJ Tams, L Berster and B Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (CH Beck/Hart/Nomos, 2014) 86–88. 40 Prosecutor v Jelisić (Judgment) ICTY-95-10-T (14 December 1999). 41 Ibid paras 69–70.

104  The Entrapment of Judicial Decisions and scientifically irreproachable criteria would be a perilous exercise whose result would not necessarily correspond to the perception of the persons concerned by such categorisation. Therefore, it is more appropriate to evaluate the status of a national, ethnical or racial group from the point of view of those persons who wish to single that group out from the rest of the community. The Trial Chamber consequently elects to evaluate membership in a national, ethnical or racial group using a subjective criterion. It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators. This position corresponds to that adopted by the Trial Chamber in its Review of the Indictment Pursuant to Article 61 filed in the Nikolić case.42

In light of the above, the interpretation of ‘protected group’ has been articulated along two planes: one relating to the definition of terms embedded in the text (ie what is a group? what do the terms national, ethnical, racial, and religious mean?); the other pertaining to the criteria used to identify the protected group. Interestingly, these two planes pull in opposite directions insofar as the wording of the genocide definition does not allow much pliability, whereas the approach to the determination of the protected group creates a space for manoeuvring. In other words, while Article 2 ICTR Statute and Article 4 ICTY Statute seem to confer on the interpreter a limited measure of discretion, given the rigidity of the definition of genocide, at the same time, the introduction of criteria to identify a protected group allows the exercise of wider discretion. These two planes, which engender a two-pronged process, are referred to as definition and test. While the former is a classical operation in legal interpretation, the latter aims at determining the criteria (or methods) to be used to identify a protected group.43 Accordingly, ‘subjective test’ stands for ‘test based on subjective criteria’ and ‘objective test’ for ‘test based on objective criteria’. The two-pronged process has been followed by the ICTY in Krstić.44 For one, the Trial Chamber upholds the exhaustive enumeration approach to protected groups, although departure from a previously expressed position by the ICTR in Akayesu is not acknowledged. 554. However, the Genocide Convention does not protect all types of human groups. Its application is confined to national, ethnical, racial and religious groups.45 42 Here, the Trial Chamber follows in part the position taken by the ICTR, which stated that ‘an ethnic group is one whose members share a common language and culture; or a group which distinguishes itself, as such (self-identification), or, a group identified as such by others, including the perpetrators of the crimes (identification by others)’. See Kayishema and Ruzindana Trial Judgment (n 31), para 98. 43 The test issue has notably led to legal issues being treated very differently. For instance, the Nicaragua case and the Tadić case suggested that different standards were applicable in the determination of attributability of a conduct of de facto agents to the state. See A Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of International Law 649. 44 Prosecutor v Krstić (Judgment) ICTY-98-33-T (2 August 2001). 45 Ibid para 554. This approach is also supported by a number of scholars, eg Cassese, Gaeta et al (n 15) 119; C Kress, ‘The Crime of Genocide under International Law’ (2006) 6 International criminal

The Road Towards the Stabilisation of Interpretive Outcomes  105 After conceding the rigidity of the definition of genocide under the Genocide Convention, the Chamber considers the test whereby a group may be identified. As evidenced by the paragraph below, such a test relies on the stigmatisation of a targeted group by the perpetrator, perceived as a group, rather than based on incontrovertible objective or scientific criteria. 557. A group’s cultural, religious, ethnical or national characteristics must be identified within the socio-historic context which it inhabits. As in the Nikolić and Jelisić cases, the Chamber identifies the relevant group by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.46

It is worth mentioning that reference to the Nikolić and Jelisić judgments is made in Krstić following the approach of the Trial Chamber, which has been using the test consistently. The argument of claiming consistency is traceable in a number of decisions laid down by the ad hoc tribunals, and this will be discussed later. In Krstić, the Trial Chamber stated as follows: 559. Originally viewed as a religious group, the Bosnian Muslims were recognised as a ‘nation’ by the Yugoslav Constitution of 1963. The evidence tendered at trial also shows very clearly that the highest Bosnian Serb political authorities and the Bosnian Serb forces operating in Srebrenica in July 1995 viewed the Bosnian Muslims as a specific national group. Conversely, no national, ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims residing in Srebrenica, at the time of the 1995 offensive, from the other Bosnian Muslims. The only distinctive criterion would be their geographical location, not a criterion contemplated by the Convention. In addition, it is doubtful that the Bosnian Muslims residing in the enclave at the time of the offensive considered themselves a distinct national, ethnical, racial or religious group among the Bosnian Muslims. Indeed, most of the Bosnian Muslims residing in Srebrenica at the time of the attack were not originally from Srebrenica but from all around the central Podrinje region. Evidence shows that they rather viewed themselves as members of the Bosnian Muslim group.47

While the definition is understood as providing an exhaustive enumeration of protected groups, the criterion of stigmatisation by the perpetrators allows the courts to apply some flexibility to the scope of protection. Krstić hence acknowledges that social perceptions, rather than scientific-biological factors, are determinant for the constitution of the targeted group,48 overcoming the more objective test used by the ICTR in Akayesu. Notably, in Rwanda the Tutsi (victims) and the Hutu (perpetrators) could not be clearly distinguished based on language, religion, physical traits or culture. The ICTR Trial Chamber thus identified the Tutsi as a protected group based on the victims’ self-perception of law Review 461, 473; Schabas, Genocide in International Law (n 35); G Werle and F  Jessberger, Principles of International Criminal Law, 3rd edn (Oxford University Press, 2014) 295. 46 Krstić Trial Judgment (n 44) para 557 (emphasis added). 47 Ibid para 559 (emphasis added). 48 Werle and Jessberger, Principles of International Criminal Law (n 45) 296.

106  The Entrapment of Judicial Decisions belonging to an ethnical group,49 resulting from the (objective) fact that identity cards, introduced by the Belgian colonisers in 1931, included an ethnicity specification.50 The ICTR Trial Chamber in the Rutaganda51 and Musema52 cases upheld the view that, for the purposes of the genocide definition, protected groups are stable, and that subjective elements ultimately indicate the existence of such groups: 56. Moreover, the Chamber notes that the purpose of applying the Genocide Convention, membership of a group is, in essence a subjective rather than objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/ herself as belonging to the said group. 57. Nevertheless, the Chamber is of the view that, a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention. It appears from the reading of the travaux préparatoires of the Genocide Convention, that certain groups, such as political and economic groups, have been excluded from the protected groups because they are considered to be ‘mobile groups’ which one joins through individual, political commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups.53

This argumentation is reproduced verbatim in Musema:54 161. The Chamber notes that, as stated in the Rutaganda Judgement, the concepts of national, ethnical, racial and religious groups have been researched extensively and, at present, there are no generally and internationally accepted precise definitions thereof. Each of these concepts must be assessed in the light of a particular political, social and cultural context. Moreover, the Chamber notes that for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/herself as a member of said group. 162. Nevertheless, the Chamber is of the view that a subjective definition alone is not enough sufficient to determine victim groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention, that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be ‘non stable’ or ‘mobile’ groups which one joins through individual, voluntary commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups.



49 Akayesu

Trial Judgment (n 27) para 702. para 170. 51 Prosecutor v Rutaganda (Judgment) ICTR-96-3-T (6 December 1999). 52 Prosecutor v Musema (Judgment) ICTR-96-13-T (27 January 2000). 53 Rutaganda Trial Judgment (n 51) paras 56–57 (emphasis added). 54 Musema Trial Judgment (n 52), paras 161–163 (emphasis added). 50 Ibid

The Road Towards the Stabilisation of Interpretive Outcomes  107 163. Therefore, the Chamber holds that in assessing whether a particular group may be considered protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the specific political, social and cultural context in which the acts allegedly took place.

In Bagilishema55 the view of the Trial Chamber in Musema is also reiterated: 55. The definition of the crime of genocide has been interpreted in the jurisprudence of this Tribunal, namely in the Akayesu, Kayishema and Ruzindana, Rutaganda and Musema Judgements. The Chamber adheres to the definitions of genocide as elaborated in these judgements.56

In assessing the test to which the court shall resort in order to appreciate the existence of a protected group for the purposes of the Genocide Convention, the Trial Chamber contends: 65. The Chamber notes that the concepts of national, ethnical, racial, and religious groups enjoy no generally or internationally accepted definition [although indicative definitions of these four terms have been provided, for example, in Akayesu paras 512–515]. Each of these concepts must be assessed in the light of a particular political, social, historical, and cultural context. Although membership of the targeted group must be an objective feature of the society in question, there is also a subjective dimension. A group may not have precisely defined boundaries and there may be occasions when it is difficult to give a definitive answer as to whether or not a victim was a member of a protected group. Moreover, the perpetrators of genocide may characterise the targeted group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society. In such a case, the Chamber is of the opinion that, on the evidence, if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group, for the purposes of genocide.57

Unlike other ICTR pronouncements, the judicial decisions cited by the Chamber in Bagilishema draw from the ICTR jurisprudence, leaving aside relevant ICTY judicial decisions. Notably, the subjective test is relied upon by the UN Commission of Inquiry in Darfur, mandated to determine, inter alia, whether acts of genocide had occurred.58 As a proviso, it should be noted that the UN Inquiry Commission does not qualify as a judicial body, properly speaking. In fact, it does not have competence to issue binding decisions within judicial proceedings. The Commission is nonetheless entrusted ‘to determine … whether or not acts of genocide have occurred, and to identify the perpetrators of such violations in

55 Prosecutor v Bagilishema (Judgment) ICTR-95-1A-T (7 June 2001). 56 Ibid para 55. 57 Ibid para 65 (emphasis added). 58 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General – Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, p 2.

108  The Entrapment of Judicial Decisions order to ensure that those responsible are held accountable’.59 As is exemplified by the quoted paragraphs below, the Commission engages in the interpretation of legal rules applicable to a factual situation, namely acts of genocide allegedly perpetrated in Darfur, in a comparable manner to judicial institutions stricto sensu. The Commission considers the following: 499. In short, the approach taken to determine whether a group is a (fully) protected one has evolved from an objective to a subjective standard to take into account that ‘collective identities, and in particular ethnicity, are by their very nature social constructs, “imagined” identities entirely dependent on variable and contingent perceptions, and not social facts, which are verifiable in the same manner as natural phenomena or physical facts’. (…) 501. What matters from a legal point of view is the fact that the interpretative expansion of one of the elements of the concept of genocide (the concept of protected group) by the two International Criminal Tribunals is in line with the object and scope of the rules on genocide (to protect from deliberate annihilation essentially stable and permanent human groups, which can be differentiated on one of the grounds contemplated by the Convention and the corresponding customary rules). In addition, this expansive interpretation does not substantially depart from the text of the Genocide Convention and the corresponding customary rules, because it too hinges on four categories of groups which, however, are no longer identified only by their objective connotations but also on the basis of the subjective perceptions of members of groups. Finally, and perhaps more importantly, this broad interpretation has not been challenged by States. It may therefore be safely held that that interpretation and expansion has become part and parcel of international customary law.60

Interestingly, the UN Commission of Inquiry concedes that resort to a subjective standard may result in an expansive application/interpretation of the law, as the application of an objective test would not lead to the same findings of guilt. However, even admitting this, the court acknowledges that it is consistent with the object and scope (‘object and purpose’ in the terminology on the VCLT) of the rules on genocide.61 More emphasis is hence put on the teleological interpretation of the Convention rather than on the will of the parties to restrain the protection of the Genocide Convention only to the enumerated protected groups. All in all, the salient passages of the interpretive practices elucidated above may be summarised in the following manner. In Kayishema and Ruzindana the 59 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General – Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, p 2. 60 Ibid (emphasis added). 61 Plainly, a justification is warranted here in view of the potential conflict with the principle of legality in criminal law, which amounts to a general principle of law under the doctrine of sources of international law.

The Road Towards the Stabilisation of Interpretive Outcomes  109 subjective test was introduced, but only held to be applicable to the concept of ethnic group (‘An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self-identification); or a group identified as such by others, including perpetrators of crimes (identification by others)’ at para 98). The subjective test was instead considered applicable to any protected group by the ICTY Trial Chamber in Jelisić (at paras 70–71: ‘A group may be stigmatised … by way of positive or negative criteria. A “positive approach” would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A “negative approach” would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group.’), as well as by an ICTR Trial Chamber in Musema (at para 161), and Rutaganda (at para 56). In an attempt to recapitulate the dynamics of judicial citation practices illustrated in this section, the following table offers an overview of the judicial decisions cited by the ad hoc tribunals, as well as those cited by the abovementioned UN Commission of Inquiry in Darfur, as regards the concept of protected groups in the framework of the genocide legal definition. Table 1  Overview of judicial decisions cited in the ICTY and ICTR case law interpreting the concept of ‘protected group’ in relation to genocide charges (1993–2017) Judicial decision

Definition/Test

Cited judicial decision(s)

ICTR Akayesu TJ 1998 (‘national’)

‘stable groups’/minimum definition objective criteria

Nottebohm case (ICJ)

ICTR Kayishema & Ruzindana TJ 1999

‘stable groups’ objective/subjective test only for ethnic groups

implicit reference to Akayesu

ICTY Jelisić TJ 1999

‘stable groups’/exhaustive list objective/subjective test applicable to any group

Kayishema (ICTR, para 98)

ICTR Rutaganda TJ 1999

‘stable groups’/exhaustive list objective/subjective test

ICTR Musema TJ ‘stable groups’/exhaustive list 2000 objective/subjective test

Rutaganda (ICTR)

ICTY Krstić TJ 2001

Jelisić (ICTY) Nikolić (ICTY)

‘stable groups’/exhaustive list objective/subjective test

ICTR Bagilishema objective/subjective test TJ 2001

Akayesu (ICTR) (continued)

110  The Entrapment of Judicial Decisions Table 1  (Continued) Judicial decision

Definition/Test

Cited judicial decision(s)

ICTR Semanza TJ objective/subjective test 2003

Bagilishema (ICTR) Musema (ICTR) Rutaganda (ICTR) Kayishema (ICTR) Akayesu (ICTR)

ICTY Brdnin TJ 2004

Krstić (ICTY) Jelisić (ICTY) Semanza (ICTR) Kayelijeli (ICTR) Rutaganda (ICTR)

UN Inquiry Commission in Darfur 2005

‘stable groups’/exhaustive list objective/subjective test

ICTY Stakić AJ 2006

Noticing non-motivated departure Jelisić (ICTY) from Jelisić TJ (negative test consistent with the object and purpose of the Genocide Convention)

Kayishema & Ruzindana (ICTR) Musema (ICTR) Rutaganda (ICTR) Jelisić (ICTY) Krstić (ICTY)

ICTY Popović TJ 2010

Krstić (ICTY) Stakić (ICTY) Bosnian Genocide case (ICJ)

ICTY Tolimir TJ 2012

Krstić (ICTY) Brdanin (ICTY) Jelisić (ICTY) Semanza (ICTR) Muvunyi (ICTR)

Several elements should be underscored at this point. First, international criminal courts and tribunals typically refer to international judicial decisions. The cited judicial decisions are manifold and converge towards Kayishema and Ruzindana, Akayesu, Jelisić and Krstić, alongside a number of other judicial decisions restating the same legal interpretive outcomes. Cited judicial decisions are both internal and external to the legal jurisdiction in which the ICTY and ICTR operate, insofar as both tribunals rely on the jurisprudence laid down by both of them as if there were no formal delimitation to the use of external judicial pronouncements. Although Akayesu was the first case decided by an international criminal tribunal, the inquiry of case law shows that such a primacy does not translate into a pattern of citation of this very same case

The Road Towards the Stabilisation of Interpretive Outcomes  111 throughout the judicial decisions observed. This is demonstrated by the wide reference to the Kayishema and Ruzindana judgment, which indeed departed from the objective test laid down in Akayesu and affirmed that social ascription, along with objective factors, was determinant for the identification of an ethnic group.62 The scope of this test was further extended to any protected group by the ICTY in Jelisić. Interestingly, in defining national group in Akayesu – its first judgment – the ICTR drew from a definition of ‘national’ provided by the ICJ in the Nottebohm case (1955) that is a handbook case for diplomatic protection, discussing inter alia issues of nationality. C.  Accepting Interpretive Outcomes: The Import of the ICC Statute The previous section illustrated that the practices of the ad hoc tribunals on protected groups in genocide cases have stabilised two interpretive outcomes: that the definition of genocide provides an exhaustive list of protected groups; and that a test comprising objective and subjective criteria shall guide the identification of protected groups. The latter has allowed ‘softening’ of the definition, in that it has made it possible to identify as protected groups collections who, based on objective criteria only, would not qualify as such. An attempt to enlarge the protection of groups against genocide was made at the Diplomatic Conference for the adoption of the Rome Statute.63 Although this suggestion was eventually dismissed, it is worth investigating whether the inclusion of new types of protected groups could be supported by reference to judicial practices of national or international criminal courts. Many scholars have hailed the adoption of the Rome Statute (1998–2002) as a codifying endeavour of existing customary international criminal law, at least as far as the definition of the crimes is concerned.64 There are good reasons in support of this reading. Not only did the negotiations for the adoption of the Statute invite all states to contribute, but the current 123 ratifications acknowledge that a number of states have consented to the legal definitions of crimes provided therein. The Rome Statute establishes a permanent International Criminal Court with material jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression (Article 5 ICC Statute). Article 6 62 Kayishema and Ruzindana Trial Judgment (n 31), para 99. 63 Schabas, The International Criminal Court – A Commentary on the Rome Statute (n 16) 121–22. 64 H von Hebel and D Robinson, ‘Crimes within the Jurisdiction of the Court’ in R S Lee et al (eds), The International Criminal Court: The Making of the Rome Statute (Kluwer, 1999) 79–126, 122; R Cryer, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study’ (2006) 11 Conflict and Security Law 239, 251; G Danilenko, ‘ICC Statute and Third States’ in A Cassese, P Gaeta and RWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford University Press, 2002) 1871–1897, 1891. Cf A Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144; Final Act of the Rome Conference, 17 July 1998, UN Doc A/CONF.183/10, para 26, Resolution E.

112  The Entrapment of Judicial Decisions ICC Statute provides a definition of the crime of genocide, which reproduces verbatim the definition of genocide enshrined in the 1948 Genocide Convention. Unlike the ICTY and the ICTR foundational instruments, the Statute of the ICC does provide an enumeration of legal sources on which the Court shall rely to adjudicate cases.65 What is more, Article 21 of the ICC Statute sets forth a hierarchy of sources of international law that the Court shall apply. Article 21 Applicable law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

According to Article  21(1)(c) ICC Statute, the Court may invoke, when the sources enumerated in Article 21(1)(a) and (b) do not allow identification of the applicable law,66 general principles of law derived ‘from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime.’ This formulation suggests that the Court would refer to comparative criminal law as a subsidiary source of law.67 65 Absent a specific provision on the applicable law in their Statutes, the ICTY and ICTR relied on Article 38 ICJ Statute as reflective of customary international law. Article 38 ICJ Statute refers to judicial decisions as ‘subsidiary means to determine rules of law’. Such a subsidiary or supplementary function has been reaffirmed by the UN International Law Commission in its Report on the Identification of customary international law. See ILC, ‘Report on the Identification of customary international law’ (2016) UN Doc A/71/10, Conclusion 13, p 78. 66 Article 21(1)(a) ICC Statute provides that the Court shall apply in the first place the Statute, Elements of Crimes and its Rules of Procedure and Evidence; whereas Article  21(1)(b) sets forth applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict, as sources that the Court shall apply in the second place, where appropriate. 67 Schabas, The International Criminal Court – A Commentary on the Rome Statute (n 16) 393.

The Road Towards the Stabilisation of Interpretive Outcomes  113 Importantly, Article 21(2) ICC Statute authorises the Court to ‘apply principles and rules of law as interpreted in its previous decisions.’ Such a provision makes no reference to the function of judicial decisions in the adjudicative process of the Court, either as a source of law or as subsidiary means to determine the rules of law. Instead, it refers to judicial decisions as means assisting the interpretation of the Court. The Statute is silent on the use of judicial decisions originating in jurisdictions other than the ICC, that is, whether the Court may refer to the case law laid down by the ad hoc tribunals.68 In the case of Prosecutor v Kony et al, Pre-Trial Chamber II established that ‘the rules and practice of other jurisdictions, whether national or international, are not as such ‘applicable law’.69 Nevertheless, citing the ICTY and ICTR jurisprudence appears to be part of the ICC judicial practice.70 Article 9 ICC Statute provides that the Elements of Crimes shall assist the Court in the interpretation and application of Articles 6, 7, 8 and 8bis, namely in interpreting and applying the definition of the crimes included in the Rome Statute. The Elements of Crime are an instrument of approximately 40 pages detailing the constitutive elements for each crime under the subject-matter jurisdiction of the ICC. As such, it aims at guiding the Court in the application of the Statute. Article 21 of the Rome Statute (‘Applicable Law’) accords the Elements of Crimes a primary role for the interpretation of legally binding rules under the Rome Statute.71 However, as a result of the compromise between states in favour of a supplementary document binding upon the Court, and other states’ lack of willingness to unduly restrict its discretion, the Elements of Crimes were adopted as a supplementary aid with non-binding force,72 as evidenced by Article 9 ICC Statute. As far as the crime of genocide is concerned, the Elements of Crimes establish that, for genocide to be proved, acts of genocide shall be perpetrated against ‘a person or persons [who] belonged to a particular national, ethnical, racial or religious group’. Such a formulation entails that the ICC Statute definition of 68 V Nehrlich, ‘The Status of ICTY and ICTR Precedent in Proceedings before the ICC’ in C Stahn and G Sluiter (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff, 2009) 305–25, 315–317. 69 Cf Prosecutor v Kony et al (Pre-Trial Chamber’s Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes in the Warrants of Arrest, Motion for Reconsideration, and Motion for Clarification) ICC-02/04-01/05 (28 October 2005) referred in G Bitti, ‘Article 21 of the Statute of the International Criminal Court and the treatment of sources of law in the jurisprudence of the ICC’ in C Stahn and G Sluiter (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff, 2009) 285–304, 296–297. 70 See eg Prosecutor v Thomas Lubanga Dyilo (Decision on the confirmation of charges) ICC-01/04-01/06 (29 January 2007) examined in ch 4, section IV. 71 Article  21(1) of the ICC Statute provides that the Court shall apply ‘in the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence. (…)’. 72 K Dörmann, ‘War Crimes Under the Statute of the International Criminal Court, With a Special Focus on the Negotiations on the Elements of Crimes’ (2003) 7 Max Planck Yearbook of United Nations Law 341, 350; O Triffterer, ‘Can the “Elements of Crimes” narrow or broaden responsibility for criminal behaviour defined in the Rome Statute?’ in C Stahn and G Sluiter (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff, 2009) 381–400, 387.

114  The Entrapment of Judicial Decisions genocide ought to be read as providing an exhaustive list of protected groups. This approach is confirmed by the (limited) judicial decisions laid down by the ICC on the matter. In the Situation in Darfur, Sudan, Pre-Trial Chamber I stated: 134. The Majority observes that, in addition to the above-mentioned contextual element, the Elements of Crimes provide for the following two elements, which are common to the above-mentioned five categories of genocidal acts provided for in article 6 of the Statute: (i) the victims must belong to a particular national, ethnic, racial or religious group; and (ii) the perpetrator must act with the intent to destroy in whole or in part that particular group.73

The above excerpt implicitly draws from the ICTY Krstić Trial Judgment, which reads: 550. Genocide refers to any criminal enterprise seeking to destroy, in whole or in part, a particular kind of human group, as such, by certain means. Those are two elements of the special intent requirement of genocide: –– the act or acts must target a national, ethnical, racial or religious group; –– the act or acts must seek to destroy all or part of that group.74

The ICC Pre-Trial Chamber continues: 135. In relation to the first element, the Majority is of the view that the targeted group must have particular positive characteristics (national, ethnic, racial or religious), and not a lack thereof. In this regard, it is important to highlight that the drafters of the 1948 Genocide Convention gave ‘close attention to the positive identification of groups with specific distinguishing well-established, some said immutable, characteristics.’ It is, therefore, a matter of who the targeted people are, not who they are not. As a result, the Majority considers that negative definitions of the targeted group do not suffice for the purpose of article 6 of the Statute. 136. The Majority considers that there are no reasonable grounds to believe that nationality, race and/or religion are a distinctive feature of any of the three different groups – the Fur, the Masalit and the Zaghawa – that, according to the Prosecution, have been targeted. In this regard, the Majority highlights that the members of these three groups, as well as others in the region, appear to have Sudanese nationality, similar racial features, and a shared Muslim religion. 137. As a result, the question arises as to whether any of the three said groups is a distinct ethnic group. In this regard, the Majority finds that there are reasonable grounds to believe that this question must be answered in the affirmative as there are reasonable grounds to believe that each of the groups (the Fur, the Masalit and the Zaghawa) has its own language, its own tribal customs and its own traditional links to its lands.75

73 Prosecutor v Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09 (4 March 2009), para 134. 74 Krstić Trial Judgment (n 44), para 550. 75 Al Bashir Decision on the Prosecution’s Application for a Warrant of Arrest (n 73), paras 135–37.

The Road Towards the Stabilisation of Interpretive Outcomes  115 In order to support this finding (‘the reasonable grounds’ in the wording of the Court) – namely that the Fur, the Masalit and the Zaghawa each constitutes an ethnic group and are therefore protected by the terms of the genocide definition – the Pre-Trial Chamber in Al Bashir relies on the Report of the International Commission of Inquiry on Darfur (para  52). However, it also recognises the following: neither the Statute nor the rules provide for a definition of ‘ethnic group’. (…) International case law has not provided either a clear definition of what an ‘ethnic group’ is. In this regard … the ICJ, in its recent Judgment on Genocide, did not rule on whether a wholly objective (based on anthropological consideration), a wholly subjective (based only upon the perception of the perpetrators), or a combined objective/subjective approach to the definition of the relevant group should be adopted (ICJ Judgment on the Genocide, para. 191).76

The ICC Pre-Trial Chamber (PTC) hence identifies the existence of a protected group within the terms of the definition of genocide, by reference to the judicial decisions enumerated in Table 2. Table 2  Overview of judicial decisions of the ICC relating to the intepretation of protected groups within the statutory definition of genocide Judicial decision ICC Al-Bashir (PTC) 2009

Cited judicial decisions Bosnian Genocide case (ICJ), paras 191–194 Akayesu, TJ, paras 510–516 Krstić, TJ, paras 551–561 Stakić, AJ, paras 20–28 2005 Report of the UN Commission of Inquiry in Darfur

Importantly, these decisions are external to the ICC jurisdiction and are arguably relied upon by the PTC as embedding the points of reference in the formation of the meaning of protected group, and in identifying the existence thereof. The breadth of such references is worth noticing as they range from international criminal jurisdictions (ICTY and ICTR) to UN bodies entrusted with inquiring into international criminal allegations (the UN Inquiry Commission in Darfur), to the ICJ. Referring to these judicial decisions is material to sustain the findings in the first judicial decisions on genocide at the ICC.77

76 Ibid fn 152. 77 Cf Prosecutor v Al Bashir (Separate and Partly Dissenting Opinion of Judge Anita Ušacka to the PTC ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’) ICC-02/05-01/09 (4 March 2009), paras  21–26, in which the Judge articulates her view on the basis of the jurisprudence of the ad hoc tribunals (ICTY in Brđanin, ICTY in Blagojević, ICTR in Gacumbitsi, and ICTR Semanza case) as regards the criteria to identify the protected groups, as well on the findings of the UN Commission of Inquiry in Darfur.

116  The Entrapment of Judicial Decisions D.  Interpretation as an Incremental Process of Content Formation As far as the definition of protected groups is concerned, international jurisdictions consistently relied on previous international judicial decisions (both internal and external to the adjudicating jurisdiction) in interpreting the concept of protected group for the purposes of the crime of genocide. The dynamics of this process is incremental, insofar as later judicial decisions add to the meaning of legal rules by reference to prior judicial decisions, enabling international law to progressively develop and, at the same time, to retain an aura of stability, since the meaning of terms is constructed on the basis of prior judicial decisions. The particularity of this incremental construction of meaning lies with a bifurcated reasoning, consisting in defining the terms of the legal definition of genocide on the one hand, and in providing a test that enables a wider range of discretion. The test has been ipso facto coined by judicial decisions of the ad hoc tribunals, and it has been progressively fine-tuned so as to encompass subjective criteria, that is, self-perception of the victim and perception of the perpetrator, in order to identify the protected group. Notably, in Kayishema and Ruzindana, an ethnic group was deemed protected within the genocide definition solely on the basis of subjective criteria.78 As a consequence, the test blurs the objective features of a group which – if only based on objective/biological elements – would hardly qualify as ‘protected’ under the terms of the Genocide Convention. A number of reasons may justify this test. For instance, an international criminal tribunal – as evidenced in a number of decisions laid down by the ICTY and ICTR – would understand rules of international criminal law in light of humanity considerations, favouring the option that develops legal rules in the direction of enlarging the protection of individuals against international crimes. This is substantiated by the ICTY’s approach in Kupreskić,79 in which the Trial Chamber found that ‘imperatives of humanity or public conscience’, enshrined in the Martens clause,80 allowed the inference of the opinio juris of states, and so the ascertainment of a rule of customary international law on belligerent reprisals, even when state practice was not sufficiently proved.81 Similarly, in Tadić, the Appeals Chamber invoked ‘elementary considerations of humanity and common sense’ to draw an analogy 78 Kayishema and Ruzindana Trial Judgment (n 31), para  98. See ch 4, section II.A, for a fullfledged analysis on the point. 79 Prosecutor v Kupreskić (Judgment) ICTY-95-16-T (14 January 2000), para 527. 80 Preamble of the 1899 Hague Convention: ‘Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of public conscience.’ Interestingly, the ICTY cites the Legality of Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 259, para 84, to refer to the Martens Clause qua customary international law. 81 Kupreskić Trial Judgment (n 79), para 527: ‘Admittedly, there does not seem to have emerged recently a body of State practice consistently supporting the proposition that one of the elements

Deferring to the International Acquis  117 between the prohibited methods of warfare in international armed conflicts and those in non-international armed conflicts.82 The material analysed underscores that later courts interpreting the concept of ‘protected group’ have regarded the cited judicial decisions as correct statements of the law. Indeed, the instances drawn upon have shown that Akayesu, on the one hand, and Jelisić and Krstić, on the other, offer divergent and opposite interpretations of the genocide definition. Akayesu claims that it is a minimum definition applicable in principle to any protected group; Jelisić and Krstić assert that protected groups are exhaustively enumerated but allow more flexibility on the criteria to identify the groups. Additionally, international courts’ decisions – and the Report of the UN Commission on Inquiry in Darfur – have evidenced a consistent approach towards an exhaustive interpretation of the list of protected groups, in the wake of Kayishema and Jelisić. This restrictive interpretation has been offset by the adoption of a test for identifying the group based on objective and subjective criteria (ie perception of the perpetrator and self-perception of the victims). This has stabilised the interpretive outcomes towards asserting that the genocide definition is an exhaustive one and that a mix of objective and subjective criteria shall be used to identify the protected group. Notably, the interpretation of the genocide definition as an exhaustive one has been counter-balanced by the introduction of a looser test to identify the group, thus allowing courts to exert a wider discretion than the apparently limited one provided by the relevant provisions. Looking at these diverging positions through the lens of a dynamic formation of meaning, it would be for later courts to determine which judicial decisions have been regarded as embedding a correct interpretation of the law. This is illustrated by the process of citing Jelisić and Kayishema as a reference point in the interpretation of a protected group, while Akayesu is not.83 III.  DEFERRING TO THE INTERNATIONAL ACQUIS: THE ROLE OF NATIONAL COURTS IN INTERPRETING ‘PROTECTED GROUP’

Before turning to national courts and their function in adjudicating international criminal law, some remarks are in order. The first one concerns an of custom, namely usus or diuturnitas has taken shape. This is however an area where opinio iuris sive necessitatis may play a much greater role than usus, as a result of the aforementioned Martens Clause. In the light of the way States and courts have implemented it, this Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent. The other element, in the form of opinio necessitatis, crystallising as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law.’ 82 Prosecutor v Tadić (Decision of the Defence Motion for Interlocutory Appeal of Jurisdiction) ICTY-94-1 (2 October 1995), para 119. 83 Yet Akayesu is widely cited for other points in law.

118  The Entrapment of Judicial Decisions operative definition of ‘national’ court. A national court is defined a contrario, as a court which is not established by an international legal instrument (eg an international treaty, a UN Security Council resolution). ‘National’ is used interchangeably with ‘municipal’ and ‘domestic’. Secondly, the idea that national courts are potentially equal counterparts of international jurisdictions underpins the analysis of the interpretation and adjudication of international law. This, however, admits a range of variance that is inherent in the act of interpretation itself. The third remark concerns generalisation. Plainly, national courts operate in different legal orders, which are informed by different legal traditions (eg civil law, common law), and which relate to international law differently (eg according to a monist or a dualist model). Thus, approaching national courts as a homogeneous category necessarily entails abstracting them from those important idiosyncrasies. This generalisation stands on the proposition that, from the point of view of international law, those peculiarities can be overlooked. For instance, international law provides that states – and national courts as state organs – must perform international treaties they are legally bound to, in good faith. Likewise, a state – and national courts as state organs – is not allowed to invoke its national law to justify a violation of an international obligation.84 Yet it is acknowledged that, in the practice of interpreting international criminal law, those idiosyncrasies may guide interpretive outcomes. Thus, to the extent that they are germane to understanding the relevance of external judicial decisions (that is, decisions stemming from a different legal order) in the adjudication of international criminal law, those idiosyncrasies will be considered. On account of the lack of centralised international enforcement mechanisms, national courts have been portrayed as key actors in ensuring compliance with international law.85 Yet the influence of national interpretations for the understanding of international law has been long regarded as marginal or, at least, secondary to the infuence of international courts and tribunals. A reason for this can be traced to the fact that international law was considered primarily as a set of rules regulating the relationships between states.86 However, the development of areas directly concerned with individuals or with disciplining intra-state matters, rather than inter-state disputes, has brought the role of national courts as interpreters of international law to the forefront.87 International human rights law and international criminal law are emblematic for having contributed to this shift, by respectively prescribing rights and obligations directly 84 Both these principles are considered customary and are codified in Article 26 and Article 27 of the Vienna Convention of the Law of Treaties (VCLT), respectively. 85 A Cassese, ‘Modern Constitutions and International Law’ (1985) 192 Recueil des Cours de l’Académie de Droit International 331, 342. 86 R Higgins, Problems and Process (Oxford University Press, 1994) 1. 87 Y Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary’ (2009) 20 European Journal of International Law 73, 74. See also B Conforti, International Law and the Role of Domestic Legal Systems (Martinus Nijhoff, 1993); A Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 International and Comparative Law Quarterly 57.

Deferring to the International Acquis  119 upon individuals. This does not detract from the significance that national courts, as state organs, have always been given in the formation of customary international law. Yet the role of national courts in the international system is no longer predicated upon their function as enforcers of international law obligations, but also as interpreters of international law rules.88 A surge for the practice of national courts in interpreting international law has been underscored not only in literature89 but also by the ILC, which has considered the legal significance of the practice of national courts as interpreters of international law, within the framework of the topic on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’.90 As far as the crime of genocide is concerned, manifold national courts have initiated criminal proceedings against individuals, not only based on the classical principles of territoriality (locus commissi delicti) and nationality (both active and passive), but also by virtue of the principle of universal jurisdiction.91 This section focuses in particular on how national courts’ decisions made use of international courts’ judicial decisions in their practice of adjudicating the crime of genocide. As recalled earlier, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide defined the crime of genocide as a self-standing crime. In light of Article V of the Genocide Convention, and of the more general rule pacta sunt servanda, states bear an obligation to give effect to their international obligations. Article V of the Genocide Convention, in particular, establishes as follows: The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present 88 A more prominent role of national courts in adjudicating international law was already advocated by Benedetto Conforti almost three decades ago, as a way to foster the respect of international law. See B Conforti (Rapporteur), ‘The Activities of National Judges and the International Relations of their State’ for the Institut de droit international (AIDD, 1993), 328. 89 B Conforti and F Francioni (eds), Enforcing International Human Rights in Domestic Courts (Martinus Nijhoff, 1997); W Ferdinandusse, Direct Application of International Criminal Law in National Courts (TMC Asser Press, 2006); A Nollkaemper, National Courts and the International Rule of Law (Oxford University Press, 2010); S Weill, The Role of National Courts in Applying International Humanitarian Law (Oxford University Press, 2014); HP Aust and G Nolte (eds), The Interpretation of International Law by Domestic Courts – Uniformity, Diversity, Convergence (Oxford University Press, 2016). 90 ILC Reports, A/71/10, 2016; A/73/10, 2018. 91 The universality principle in connection with international crimes (genocide, crimes against humanity, and war crimes) has been incorporated in a number of national jurisdictions. In 2012, Amnesty International reported that ‘147 … out of 193 states have provided for universal jurisdiction over one or more of these crimes [war crimes, crimes against humanity, genocide and torture]. In addition, at least 16 … out of 193 UN member states can exercise universal jurisdiction over conduct amounting to a crime under international law, but only as an ordinary crime (indeed, a total of 91 states have provided universal jurisdiction over ordinary crimes, even when the conduct does not involve conduct amounting to a crime under international law). Thus, a total of 163 states (approximately 84.46%) can exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law.’ Amnesty International,

120  The Entrapment of Judicial Decisions Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in article III.

Although, per Article V, the parties commit themselves to nationally criminalise acts of genocide as defined in Articles II and III of the Convention, some states issued laws of enactment92 setting forth definitions that expand or narrow down the category of protected group (national, ethnical, racial or religious). For instance, Honduras, Cote d’Ivoire and Uzbekistan have tapered down the category of protected groups excluding national or racial groups from their legal definition of genocide.93 Conversely, the national criminal legislations of Colombia, Costa Rica, Bangladesh, Estonia, Ethiopia, Latvia, Peru, Poland, and Uruguay, among others, have included social and/or political groups in the legal category of protected groups.94 The question of compatibility of a definition of genocide encompassing political groups as a protected group under the definition of the Genocide Convention was raised in the Mengistu case.95 Seised on the matter, the Federal High Court of Addis Ababa contended that ‘the mere fact that Ethiopia is a party to the convention does not prohibit the government from enacting a law, which provides a wider range of protection than the Convention’.96 As such, Article 281 of the Ethiopian Penal Code … should not be viewed as if it is in contradiction with the Genocide Convention’ … ‘as long as Ethiopia does not enact a law that minimises the protection of rights afforded by the Convention … [as] international instruments only provide minimum standards’.97 On the contrary, the Canadian criminal code encompasses a definition of genocide which replicates verbatim the definition of Article II of the Genocide Convention. The case Musegera v Canada before the Supreme Court of Canada is particularly significant. It discusses the role of international law for the ‘Universal Jurisdiction – A Preliminary Survey of Legislation Around the World’ (2012) available at https://www.amnesty.org/en/documents/ior53/019/2012/en/ (last visited March 2022). 92 Some states even consider the provisions of the Genocide Convention self-executive. On the diversity of approaches, see Schabas, Genocide in International Law (n 35) 400ff. 93 MJ Ventura, ‘Terrorism According to the STL’s Interlocutory Decision on the Applicable Law – A Defining Moment or a Moment of Defining?’ (2011) 9 Journal of International Criminal Justice 1021, 1033. 94 Cf ibid 1032–1033. See also Schabas, Genocide in International Law (n 35) 417ff. 95 In 1993, criminal proceedings in absentia were initiated against Mariam Mengistu Hailè, former Ethiopia’s Head of State (1977–1991) and leader of the political party (Derg) on allegations of genocide and crimes against humanity committed during his regime. Mengistu was charged with the murders of 1823 identifiable victims, one being the former Emperor, outrages upon personal dignity of 99 identifiable victims, and the enforced disappearances of 198 identifiable persons, and the forcible displacement of the civilian population, which resulted in the death of around 100,000 people in the mid-eighties. In 2006, Mengistu was found guilty of genocide. See TRIAL International report at https://trialinternational.org/latest-post/mengistu-haile-mariam/. 96 Special Prosecutor v Col Mengistu Hailemariam et al, Ruling on Preliminary Objections, Ethiopian Federal High Court, 10 October 1996, File No. 1/87, cited in FK Tiba, ‘The Mengistu Genocide Trial in Ethiopia’ (2007) 5 Journal of International Criminal Justice 513, 518. See also [ORIL] ILDC 555 (ET 1995) (Report by Sisay Alemahu Yeshanew). 97 Ibid.

Deferring to the International Acquis  121 interpretation of national law on genocide, including the relevance of international judicial decisions, in light of the acknowledged international, rather than national, nature of the crime. In adjudicating acts of incitement to genocide (as well as crimes against humanity),98 the Court acknowledges the international connotation of this crime and makes reference to both relevant international judicial decisions, that is, the Akayesu case, and Nahimana et al case (‘the Media case’),99 as well as national case law germane to the points discussed. Genocide is a crime originating in international law. International law is thus called upon to play a crucial role as an aid in interpreting domestic law, particularly as regards the elements of the crime of incitement to genocide. Section 318(1) of the Criminal Code incorporates, almost word for word, the definition of genocide found in art. II of the Genocide Convention, and the Minister’s allegation B makes specific reference to Rwanda’s accession to the Genocide Convention. Canada is also bound by the Genocide Convention. In addition to treaty obligations, the legal principles underlying the Genocide Convention are recognised as part of customary international law: see International Court of Justice, Advisory Opinion of May 28, 1951, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, at p. 15. The importance of interpreting domestic law in a manner that accords with the principles of customary international law and with Canada’s treaty obligations was emphasised in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 69–71. In this context, international sources like the recent jurisprudence of international criminal courts are highly relevant to the analysis.100

Reference to the ICJ Advisory Opinion in the Reservations to the Genocide Convention case is conducive to acknowledging the customary nature of the legal principles set forth in the Convention and hence abide by them while interpreting national law. Importantly, the Canadian Supreme Court further comments on the relevance of international judicial decisions within the national legal order: Since Finta [R v Finta, [1994] 1 SCR 701, pertaining to crimes against humanity committed during WWII by a military commander in Hungary] was rendered in 1994, a vast body of international jurisprudence has emerged from the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) and the ICTR. These tribunals have generated a unique body of authority which cogently reviews the sources, evolution and application of customary international law. Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions, such as ss. 7(3.76) and 7(3.77) of the Criminal Code, which expressly incorporate customary international law. 98 Mugesera v Canada (Minister of Citizenship and Immigration), Canada Supreme Court [2005] 2 SCR 100, 2005 SCC 40. 99 Ibid paras 84–89. 100 Ibid para 82 (emphasis added).

122  The Entrapment of Judicial Decisions Therefore, to the extent that Finta is in need of clarification and does not accord with the jurisprudence of the ICTY and the ICTR, it warrants reconsideration.101

Two points are worth mentioning in relation to the Musegera case. First, the court seeks to clarify why reference to the ad hoc tribunals’ jurisprudence is material for (Canadian) national courts, and grounds its articulation on the expertise of these tribunals as well as on their authority in determining rules of customary international law. Though non-binding, such judicial decisions should be duly regarded, especially insofar as they identify customary international law for the purposes of direct incorporation into the national legal order. Second, the court takes the view that, should Canadian national case law not be in compliance with the judicial decisions laid down by the international criminal tribunals, the former shall be reconsidered. This may entail an ex post departure from settled national jurisprudence in light of international pronouncements. Such a position suggests that international judicial decisions call for a reconceptualisation in light of the effects that – in the eyes of later courts – they are indeed capable to yield, regardless of their legally binding character.102 The Bugingo case provides another example of the normativity of international judicial decisions perceived by national courts. In 2013, a Norwegian court adjudicated the case Prosecutor v Sadi Bugingo103 pertaining to crimes committed during the Rwandan genocide. Making express reference to the ICTR judicial decisions, the Norwegian court asserted: The historical conflict between Hutus and Tutsi, the background of the genocide and the actual course of events are described in several criminal convictions issued by the International Criminal Tribunal for Rwanda (ICTR). (…) The ICTR has established that it was an organised genocide aimed at Tutsis as a group. The court shows, inter alia, the ICTR judgment of 2 September 1998 in substance against Jean-Paul Akayesu, where section 118 states: ‘In the opinion of the Chamber, there is no doubt that considering their undeniable scale, their systematic nature and their atrociousness, the massacres were aimed at exterminating the group that was targeted. Many facts show that the intention of the perpetrators of the killings was to cause the complete disappearance of the Tutsi.’104

From the reading of the Bugingo case, it appears that the Norwegian court, in its appreciation of ‘protected group’, is led by the findings of the ICTR relevant case law. In particular, reference to the ICTR Akayesu case is used to take judicial notice of the fact that the Tutsi constitute a protected group for the purposes 101 Mugesera (n 98), para 126 (emphasis added). 102 See ch 5. 103 Prosecutor v Sadi Bugingo, Oslo District Court, TOSLO-2012-106377, Judgment 14 February 2013. 104 (Translation of this author). Cf ibid, p 5: ‘Den historiske konflikten mellom hutuer og tutsier, bakgrunnen for folkemordet og selve hendelsesforløpet er beskrevet i flere straffedommer som er avsagt av International Criminal Tribunal for Rwanda (ICTR). (…) ICTR har slått fast at det dreide seg om et organisert folkemord rettet mot tutsier som en gruppe. Retten viser blant annet til ICTRs dom av 2 september 1998 i sak mot Jean-Paul Akayesu hvor det i avsnitt 118 står. (…)’.

Deferring to the International Acquis  123 of the genocide definition. This approach highlights that the Norwegian court defers to the findings of the international criminal tribunals, not only in law but also in fact, and that, accordingly, the court follows them although it is not bound to do so. As mentioned earlier, the fact that a later court follows a prior judicial decision may suggest that this exerts a normative force, which structures the decision-making process of later courts, and restrains the measure of discretion conferred to them in the interpretation of relevant law. This is exhibited by the fact that the Norwegian court would not depart from the finding that acts of genocide have been committed against Tutsi in Rwanda in 1994. A comparable approach is adopted by the Dutch Rechtbank (District court) in the Prosecutor v Yvonne Basebya case,105 concerning the prosecution of a former member of the Hutu extremist party in Rwanda allegedly responsible for the public incitement to commit genocide against Tutsi in Rwanda between 1990 and 1994.106 With the aim of targeting the Tutsi, songs were created and disseminated by the defendant, who undisputedly expressed the intention to kill all Tutsi (‘Tubatsembesembe’ song, which literally means ‘let’s exterminate them all’). Like the Norwegian court, the Dutch court draws from the ICTR case law to determine that Tutsi qualify as a protected group: The Rwanda Tribunal has ruled in consistent case law that the Tutsi population can be regarded as an ethnic group within the meaning of the Genocide Convention. [Kayishema TJ 1999, paras 522–526] The court agrees with this.107

Throughout the judgment, the Court refers to a number of judicial decisions laid down by the ICTY and ICTR, such as Akeyesu, Nahimana, Tolimir, Kayishema, and Bagilishema, to name but a few.108 With regard to the songs created to incite the killing of Tutsi, the Court refers to Prosecutor v Nahimana 105 Prosecutor v Basebya, Den Haag Rechtbank, 09/748004-09, Judgment of 1 March 2013 (English version of original judgment available). 106 The Netherlands exercised jurisdiction over the case on the basis of the Genocide Convention Implementation Act, the Dutch Criminal Code, and the International Crimes Act, as amended in 2012. Cf. Section 2: ‘Genocide and conspiracy to genocide were punishable in the accused period in Article 1, first and second paragraph 2 of the Genocide Convention Implementation Act (hereafter also: Implementation Act). Incitement to genocide was punishable under Article 131 of the Criminal Code in conjunction with Article 1, first paragraph of the Implementing Act. The Dutch legislator had not provided for universal jurisdiction. Under Article 5 (1) of the Implementation Act, Dutch criminal law was applicable to Dutch people who committed genocide outside the Netherlands, conspiracy to genocide and incitement to genocide. In addition, Article 5 (2) of the Implementing Act stipulated that prosecution for this could also take place if the suspect had only become a Dutch citizen after committing the offence. This is the case. The defendant obtained Dutch nationality on 7 December 2004.2 3. The District Court also notes that the International Crimes Act (hereinafter: WIM), which came into force on 1 October 2003, has established universal jurisdiction over genocide, but without retroactive effect. Since the amendment of this law, which came into effect on 1 April 2012, universal jurisdiction has been established with regard to genocide committed since 24 October 1970.’ 107 (Translation of this author). Cf Bugingo Judgment (n 103), Section  12, para  21: ‘Het Rwanda-tribunaal heeft in bestendige rechtspraak geoordeeld dat de Tutsi-bevolkingsgroep kan worden aangemerkt als een etnische groep in de zin van het Genocideverdrag. (fn. 341) De rechtbank sluit zich hierbij aan. 108 Cf ibid, Section 12, fn 335–45.

124  The Entrapment of Judicial Decisions (Appeal Judgment), to find that the ‘Tubatsembesembe’ song – sung by the defendant – would bear a genocidal purpose.109 The Dutch court also makes reference to the previously adjudicated Van Anraat case,110 concerning a Dutch businessman trading the chemical used by the Iraqi regime to fabricate mustard gas. Being the sole supplier of this chemical for the regime, Van Anraat was allegedly responsible for aiding and abetting acts of genocide committed in Iraq against the Kurdish ethnic group.111 In considering whether the Kurdish population in Iraq constitutes a national or ethnic group (as mentioned in the Indictment), the court contends: In the opinion of the court it has not been legally and convincingly proven that the Kurdish population group in Northern Iraq is a national group as defined in the Implementation Act and the [Genocide] Convention. Regarding the qualification ethnic group as defined in the Genocide Convention the court considers the following alternative requirements: –– the members of the group share a common language and culture, or –– the members of the group consider their own group as an ethnic group, or –– others, amongst them the perpetrator(s) who committed genocide, consider the group to be an ethnic group. (ICTR, Kayishema and Ruzindana, case nr. ICTR-95-1-T, sentence of the court of first instance, 21 May 1999, paragraph 98)

The court finds that it has been legally and convincingly proved that the Kurdish population group meets the above-mentioned requirements for ethnicity as defined in the Genocide Convention.112 Hence, to determine the existence of an ethnic group for the purposes of prosecuting acts of genocide, the Dutch court expressly refers to the ICTR jurisprudence in the Kayishema and Ruzindana case which, in order to identify an ethnic group, admitted resorting to a purely subjective test. Remarkably, although the Netherlands gave effect to the Genocide Convention by enacting the Genocide Convention Implementation Act,113 the court widely engages with the Genocide Convention, thus applying not solely national instruments, but international ones, too. In a similar vein, the Finnish Court in the Bazaramba case114 – the first genocide case before a Finnish court – draws from the ‘common knowledge’ – that is, facts that have repeatedly been proved as a matter of facts – ascertained by the ICTR Appeals Chamber in the Karemera et al case in order to claim that 109 Ibid, Section 12, para 10. This is further supported by the case Prosecutor v Tolimir (Judgment) ICTY-05-88/2 (12 December 2012) para 745. Cf Basebya (n 105) Section 12, para 12. 110 Cf Basebya (n 105) fn 337, referring to Van Anraat, Trial Judgment of 23 December 2005, and the ICTY and ICTR case law cited therein. 111 Prosecutor v Van Anraat, The Hague District Court, 09/751003-04, Judgment of 23 December 2005. 112 English version of original judgment available. 113 Uitvoeringswet genocideverdrag, repealed by the International Crimes Act (implementing the International Criminal Court’s Statute) since 1 October 2003. 114 Prosecutor v François Bazaramba, Porvoo District Court (now District Court of Itä-Uusimaa), R09/404, Judgment of 11 June 2010.

Deferring to the International Acquis  125 Tutsi in Rwanda constituted an ethnic group and that genocide was perpetrated against them: The following state of affairs existed in Rwanda between 6 April 1994 to 17 July 1994: There were throughout Rwanda, widespread or systematic attacks against a civilian population based on Tutsi ethnic identification. During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to person[s] perceived to be Tutsi. As a result of the attacks, there were a large number of deaths of persons of Tutsi ethnic identity.115 (…) Based on the evidence presented in the proceedings, the District Court considers it be undisputed that genocide of the Tutsi as an ethnic group took place in Rwanda at the time noted in the charge. The aforementioned judgment of the ICTR supports this conclusion of the District Court.116

Furthermore, the Iraqi High Tribunal (IHT), established under Iraqi law in the aftermath of the 2003 Anglo-American invasion of Iraq and the toppling of Saddam Hussein, tried Iraqi nationals for crimes of genocide committed against the Kurdish population. The Al Anfal case117 is worthy of mention. The case takes its name from the Anfal campaign of extermination of the Kurdish population in Northern Iraq in 1988, which involved the upper echelons of the Iraqi government. In defining whether the Kurdish group falls within the concept of protected group for the purposes of the genocide definition, pursuant to Article 11 of the IHT Statute,118 the Tribunal made reference to the concept of protected group set forth by the ICTY Jelisić case, and to the definition of national and ethic group provided by the ICTR in the Akayesu case: Genocide is considered as it is aiming the sedentary groups; […] such as the groups that are permanent by its nature, and the individual is affiliated to it by birth, and not the voluntary enlisted such as the religious group ([Jelisić] verdict of the International Tribunal Court for former Yugoslavia on 14 December 1999), the ethnic group is generally known as a group that its members are sharing the same language or 115 Prosecutor v Karemera et al (Decision on Appeals Chamber Remand of Judicial Notice (TC)) ICTR-44-98 (11 December 2006), para 11; Bazaramba (n 104) p 33 (English version of original judgment available). 116 Bazaramba (n 114) p 33 (English version of original judgment available). 117 Prosecutor v Saddam Hussein Al-Majid et al (‘Al Anfal case’), Iraqi High Court, 1/ (C) Second/ 2006, Judgment of 24 July 2007 (original judgment in English). 118 Article 11 IHT Statute: ‘First: for the purpose of this law, as per special international convention to prohibit genocide, dated on 1948 Dec 9, approved by Iraq on 1959 Jan 20, genocide means below enclosed acts which are perpetrated to partially or completely eradicate a group due to their origins, ethnicity, race, or religion.’ Killing individuals from a given group Causing severe physical or mental damages for a given group’s members Premeditatedly subdue a given group to harsh living conditions as an intention to partially or completely eradicate them. Imposing measures to prevent reproduction within a given group.

126  The Entrapment of Judicial Decisions culture ([Akayesu] the verdict of the International Tribunal Court in Rwanda on 12 September 1998).119

Following the two-pronged approach developed by the ad hoc tribunals, the Iraqi High Tribunals proceeded by determining the criteria to identify a protected group for the purpose of genocide: The Iraqi High Tribunal’s law does not provide any idea whether the definition of the group, that was the target of the criminal intention of the accused, must be defined according to the objectivity or non objectivity criteria, or according to a text, consists of mixed criteria; thus different International Criminal Courts (sic!) had found that the definition of whether the group comes under any protection, must be evaluated based on each single case referring to the objective terms for specific social or historical context and through a personal view for the criminals (the verdict of the International Criminal Courts (sic!) in Rwanda on 15 May 2003, clause no.317) according to it, the protected group will be defined according to individual cases by using the objectivity or non objectivity criteria.120 (…) The International Tribunals had agreed upon … that the purpose must be annihilating the group with its particularity, which is considered as a separate and distinguished entity and not only annihilating some individuals because of their affiliation to a specific group, and if the intended annihilation did not need to be directed to each individual of the targeted group, then the tribunal considered that the annihilating intention must aim at least an important part of the group [Bagilishema, ICTR-95-1A, Trial Judgment, 7 June 2001]. The Kurds are considered as a national and ethnic group living in the northern region of Iraq and their region named as (Kurdistan Region), as the Kurds share a language, culture and history and the Kurdish language considered as an official language in Kurdistan region since 1970, right after signing the peace agreement between the Kurdish movement and the Iraqi government back then, and it became the official language in Iraq beside the Arabic language according to the valid permanent constitution for the year 2005, also the Iraqi temporary constitution on the year 1970 ratified that the Kurdish nationality is occupying the second rank after the Arab in Iraq. The Kurds were targeted for their ethnicity. The Kurds in northern Iraq were exposed to attacks by murder and cruel harm (chemical attacks) along with being subdued to live in a deadly living conditions that aimed at annihilating the Kurdish group in northern Iraq (coercive dislocation of the inhabitants, destroying the ability to continue living, inability to return to their villages and homes, taking them to detention centres besides of exposing to a very grievous conditions and executing the civilians in order to reduce the crowds in the detention centres to create conditions leading to annihilating the Kurdish group).121

Indeed, the reasoning of the Iraqi High Tribunal employs the two-pronged structure of reasoning developed by the ad hoc tribunals, encompassing the



119 Al

Anfal case Judgment (n 117) p 488 (original judgment in English). p 488 (original judgment in English). 121 Ibid pp 489–99. 120 Ibid

Deferring to the International Acquis  127 interpretation of the genocide definition, and the test setting forth the criteria to identify the protected group. Table 3  Overview of national judicial decisions on the concept of ‘protected groups’ considered Judicial decision

Definition

Cited judicial decision(s)

Musegera (Canada, 2005)

‘Genocide as a crime originating in international law’

Akayesu (ICTR) Nahimana (ICTR) Departure from prior national cases (Finta)

Bugingo (Norway, 2013)

‘ethnic group’

Akayesu (ICTR)

Besebya (Netherlands, 2013)

‘ethnic group’

Akayesu (ICTR) Nahimana (ICTR) Tolimir (ICTY) Kayishema and Ruzindana (ICTY) Bagilishema (ICTY) Van Anraat (national)

Bazaramba (Finland, 2010)

‘ethnic group’

Karemera et al (ICTR)

Al Anfal case (Iraq, 2003)

Objective/subjective test

Jelisić (ICTY) Akayesu (ICTR)

This cursory overview of national judicial decisions on the point of ‘protected group’ suggests that national courts have deferred to international judicial decisions in their interpretation of ‘protected group’, even when interpreting national law stricto sensu. In particular, national courts have expressly cited international judicial decisions as embedding the correct interpretation of protected group as a legal category, thus sanctioning the authority of international courts’ decisions on the matter – as remarked by the Canadian court in the Musegera case.122 At least as far as the concept of protected group is concerned, national courts seem to generally align with the findings of international criminal tribunals, which are indeed cited as a justification for their legal holdings. This suggests that the judicial decisions of international criminal jurisdictions are perceived as exerting a normative influence on national courts interpreting like issues, to the extent that the reference to the ad hoc tribunals’ jurisprudence appears ingrained in the decision-making of national courts. The deference of national courts to international judicial decisions strikes an important difference if compared to the use of judicial decisions by international courts overviewed earlier. While international judicial decisions actively contributed to the formation of the content of 122 This departs from the ideal of domestic courts as agents of development, discussed in ch 3, section IV.

128  The Entrapment of Judicial Decisions legal rules, and the meaning of terms contained therein, in an incremental way, national judicial decisions sanction those interpretive outcomes, and stabilise them, adding little to the formation of meaning. All in all, international and national courts alike resort to judicial decisions in the adjudication of international crimes. Even more interestingly, citations converge towards like judicial decisions. Moreover, although the definition of genocide contained in the Genocide Convention appears clear at first glance, international and national courts have displayed varied approaches to the legal definition of ‘protected group’. This variation articulated itself on a two-fold plane: the definition of genocide contained in legal texts (encompassing the exhaustive/minimum approach to the definition); and the determination of the criteria to identify the protected group. The latter was used by international jurisdictions to ‘soften’ the rigidity of the genocide definition, while national courts seem to have worked more with the definitional aspect, either by formalising the expansion of protection in national law or by attempting to formulate expansive interpretation by reference to relevant international law instruments. IV.  FROM STABILISATION TO PERFECT ALIGNMENT OF INTERPRETIVE OUTCOMES: THE CASE OF ‘ARMED CONFLICT’

The term ‘war crimes’ refers to violations of international humanitarian law, committed in times of armed conflict, which attract individual criminal responsibility under international law.123 Unlike the crime of genocide, the Charter of the International Military Tribunal in Nuremberg granted the Tribunal jurisdiction over war crimes, defined as violations of the laws and customs of war.124 These violations, enumerated in a non-exhaustive manner, included ‘murder, ill treatment, or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.’ War crimes were also envisaged under the jurisdiction of the International Military Tribunal in Tokyo, although no such a definition was provided.125 The legal basis for the inclusion of war crimes in the material competence of the International Military Tribunals in Nuremberg and Tokyo rested with the 1899 and 1907 Hague Regulations, and the 1907 Hague Convention IV, which in part

123 Cassese, Gaeta et al, Cassese’s International Law (n 15); R O’Keefe, International Criminal Law (Oxford University Press, 2015) 123–24. 124 Article 6(b) Charter of the International Military Tribunal annexed to the London Agreement, 8 August 1945. 125 Article 5 of the Tokyo Charter.

From Stabilisation to Perfect Alignment of Interpretive Outcomes  129 codified existing international customary law and in part proscribed conduct which, at the time, had not yet attained a customary status.126 The adoption of the four 1949 Geneva Conventions significantly developed the laws applicable in times of armed conflict. For instance, pursuant to common Article 2, the Conventions establish the circumstances and the conditions under which they apply, a point which was left undetermined under the 1899 and 1907 Hague Conventions as well as under the 1864, 1906 and 1929 Geneva Conventions.127 ‘In the absence of any explicit indication, it was generally understood that these instruments applied only during a declared war, with recognition by the belligerents that a state of war existed between them.’128 Together with the Additional Protocols adopted in 1977, the Conventions form the bulk of modern international humanitarian law.129 Importantly, up until the adoption of the 1949 Geneva Conventions, international humanitarian law pertained to international armed conflicts, namely conflicts between states, although the application of certain provisions could be extended to non-international armed conflicts (eg the Spanish Civil War 1936–39) upon recognition of belligerency.130 The 1949 Geneva Conventions instead set forth common Article 3, which addresses conduct in non-international armed conflicts. The legal determination that an armed conflict exists131 triggers the application of international humanitarian law as a set of international legal obligations, which would not otherwise apply. Common Article  2, paragraph 1, of the four 1949 Geneva Conventions applies to international armed conflict and reads: In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them. (…)

Common article 3 to the Geneva Conventions instead finds application in times of non-international armed conflicts, which are defined a contrario with respect to international armed conflict. This entails that all armed conflicts not falling within the remit of international armed conflicts shall be regarded as noninternational in character. The chapeau of this provision reads as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (…) 126 O’Keefe, International Criminal Law (n 123) 125. 127 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 (Cambridge University Press, 2016), para 192. 128 Ibid. 129 The four 1949 Geneva Conventions entered into force on 21 October 1950. 130 O’Keefe, International Criminal Law (n 123) 126. 131 The term ‘war’ was replaced with the adoption of the 1949 Geneva Conventions. See Commentary to common Article 2, J Pictet et al (eds), Commentaries on the Geneva Conventions of 12 August 1949, Vol 1–4 (ICRC, 1952–1960).

130  The Entrapment of Judicial Decisions Without a claim to the existence of an armed conflict there could be no claim of war crime. In other words, the existence of an armed conflict is a constitutive element of any war crime. However, the 1949 Geneva Conventions do not provide for a definition of armed conflict.132 In 1952–58 the International Committee of the Red Cross (ICRC) compiled and published the Commentaries to the Geneva Conventions which offered an insight into the intentions of the contracting parties and on the rationale of the provisions contained therein. By stating that ‘[i]t remains to ascertain what is meant by “armed conflict”,’ the ICRC stresses that the High Contracting Parties deliberately left the concept of armed conflict open to interpretation. In light of this, the following section surveys judicial decisions through which the meaning of ‘armed conflict’ – both international and non-international – was constructed and stabilised. A.  The Concept of Armed Conflict in International Jurisdictions This section examines relevant international judicial decisions laid down by the ad hoc international tribunals (the ICTY and the ICTR), the ICC and the Special Court for Sierra Leone (SCSL). The latter is considered here – as opposed to the previous analysis – since the Statute of the SCSL affords the court jurisdiction over war crimes, but not genocide. Moreover, since the term armed conflict was introduced with the adoption of the 1949 Geneva Conventions, the practice of the International Military Tribunals of Nuremberg and Tokyo adjudicating war crimes is not deemed directly germane to the issue at stake. The expression ‘armed conflict’ enshrined in the 1949 Geneva Conventions was interpreted by the ICTY in the Tadić case.133 In the seminal decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Tadić Decision on Jurisdiction), the Appeals Chamber held that ‘an armed conflict exists whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.’134 Such an interpretation has been echoed by international criminal jurisdictions in a number of subsequent judicial decisions.135 Below, only a representative account of these will be provided, to show how international criminal jurisdictions have referred to such interpretation of armed conflict, in the context of war crimes adjudication.

132 As is known, this expression replaced the term ‘war’ that had been used until then to identify the state of hostilities between two or more states. 133 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 82). 134 Ibid para 70. 135 See eg Akayesu Trial Judgment (n 27), paras 618 et seq; Prosecutor v Bagosora et al (Judgment) ICTR-98-41-T (18 December 2008), para 2231; Krstić Appeal Judgment (n 44) para 481; Musema Trial Judgment (n 52), paras 247–48.

From Stabilisation to Perfect Alignment of Interpretive Outcomes  131 Defining the concept of armed conflict is preliminary to the determination of the international or non-international character of the conflict. As shown by judicial practice, this entails first identifying the elements of an armed conflict and then characterising it as international or non-international in nature. This approach is well epitomised by Prosecutor v Mucić, Delalić et al in which the ICTY Trial Chamber, faced with the concept of armed conflict, maintained: 182. In order to apply the body of law termed ‘international humanitarian law’ to a particular situation it must first be determined that there was, in fact, an ‘armed conflict’, whether of an internal or international nature. Without a finding that there was such an armed conflict it is not possible for the Trial Chamber to progress further to its discussion of the nature of this conflict and how this impacts upon the applicability of Articles 2 and 3. 183. For this purpose, the Trial Chamber adopts the test formulated by the Appeals Chamber in its ‘Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction’, in the case of The Prosecutor v. Dusko Tadić (hereafter ‘Tadić Jurisdiction Decision’). According to the Appeals Chamber, an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.

The Appeals Chamber continued by stating that: [i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.136

Similarly, in the Aleksovski case, the ICTY Trial Chamber states: 43. In the Tadić Decision, the Appeals Chamber, after having noted the protean nature of armed conflict, defined it to be ‘a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State’. It further maintained that ‘the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities’, consequently, it held that: international humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole

136 Prosecutor v Mucić, Delalić et al (‘Čelebici camp’) (Judgment) IT-96-21-T (16 November 1998), paras 182–183.

132  The Entrapment of Judicial Decisions territory under the control of a party, whether or not actual combat takes place there.137

The same verbatim approach is followed by the ICTR in Karemera: 1695. The jurisprudence establishes that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.’138

The great majority of judicial decisions laid down by the ICTY and ICTR and engaging with the concept of armed conflict exhibit a similar approach to the Tadić jurisdictional decision, consisting in a verbatim reference to the relevant passages of that decision. Other international criminal jurisdictions also reiterate the same approach. For instance, on 20 June 2007, the Trial Chamber of the Special Court for Sierra Leone (SCSL) rendered the judgment in the case Prosecutor v Brima, Kamara and Kanu.139 Among others, the case involved alleged violations of common Article 3 to the Geneva Conventions and of Additional Protocol II, on which subject-matter jurisdiction is conferred to the SCSL pursuant to Article 3 of the SCSL Statute. In determining the existence of an armed conflict, the SCSL made express reference to the definition of armed conflict provided by the ICTY decision in Tadić: an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State’ (Tadić Jurisdiction Decision, 1995).140

In addition, the SCSL invokes the intensity of the conflict and the degree of organisation of the warring factions,141 as the criteria to establish the existence of an armed conflict (Tadić Trial Judgment, 1997, Limaj Trial Judgment, 2005). The reading of the Brima, Kamara and Kanu judgment well exemplifies the SCSL’s extensive reliance on the jurisprudence laid down by the ICTY and ICTR to determine the meaning of ‘armed conflict’ as well as the criteria to ascertain the existence thereof. In the same vein, the SCSL in Prosecutor v Taylor142 proceeded with interpreting the contextual element of a war crime as follows: 563. Although Article 3 Common to the Geneva Conventions is expressed to apply to armed conflicts ‘not of an international character’, the distinction between internal armed conflicts and international conflicts is ‘no longer of great relevance in relation



137 Prosecutor

v Aleksovski (Judgment) ICTY-95-14/1-T (25 June 1999), para 43. v Karemera et al (Judgment) ICTR-98-44-T (2 February 2012), para 1696. 139 Prosecutor v Brima, Kamara and Kanu (Judgment) SCSL-04-16-T (20 June 2007). 140 Ibid para 243. 141 Ibid para 244. 142 Prosecutor v Taylor (Judgment) SCSL-03-01-T (18 May 2012). 138 Prosecutor

From Stabilisation to Perfect Alignment of Interpretive Outcomes  133 to the crimes articulated in Article 3 of the Statute as these crimes are prohibited in all conflicts. Crimes during internal armed conflicts form part of the broader category of crimes during international armed conflict’. The Appeals Chamber of the ICTY has ruled that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State’. (…) 564. The criteria for establishing the existence of an armed conflict are the intensity of the conflict and the degree of organisation of the warring factions.143

The SCSL expressly refers to the ICTY Tadić definition once again verbatim. In principle, the SCSL was to interpret and apply Article 3 of its Statute which expressly referred to the 1949 Geneva Conventions and Additional Protocol II. It may be submitted that the SCSL could have provided further elucidation to the concept of armed conflict, while still taking the ICTY interpretation into account. Instead, the court invoked the definition of armed conflict provided by the Tadić jurisdictional decision. This approach strongly suggests that prior judicial decisions are felt to exert a normative effect by later courts, which translates into the consistent verbatim approach to the interpretation of armed conflict provided in Tadić. In this perspective, it could be said that the Tadić decision sets forth propositions from which a later court can/would hardly depart.144 Likewise, the International Criminal Court (ICC) in the case Prosecutor v Lubanga,145 whilst establishing the existence of an armed conflict as a fundamental requirement to prove war crimes allegations,146 considered that there is no definition of armed conflict in the Statute.147 However, the Elements of Crimes establish that ‘the elements of war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict (…).’148 Considering that neither the Geneva Conventions nor the Additional Protocols provide for a definition of ‘armed conflict’, the ICC turned to prior judicial decisions interpreting that concept. Once again, the interpretation of the ICC in Lubanga cites the Tadić Jurisdiction Decision of 1995 (paragraph 70).149

143 Ibid paras 563–64. 144 Cf Ingo Venzke’s concept of ‘authority’ defined as ‘the ability to establish content-laden reference points that participants in legal discourse can hardly escape’. I Venzke, ‘Understanding the Authority of International Courts and Tribunals: On Delegation and Discursive Construction’ (2013) 14 Theoretical Inquiries in Law 381. 145 Prosecutor v Lubanga (Judgment pursuant to Article  74 of the Statute) ICC-01/04-01/06 (14 March 2012). 146 Ibid para 504. 147 Ibid para 531. 148 Article 9 of the ICC Statute provides that ‘the Elements of Crimes shall assist the Court in the interpretation and application of Articles 6, 7 and 8’. 149 Lubanga Trial Judgment (n 154), para 533.

134  The Entrapment of Judicial Decisions The same line of reasoning is followed by Trial Chamber III in the case Prosecutor v Bemba:150 Neither the Statute nor the Elements of Crimes define the concept of ‘armed conflict’. However, the Introduction to Article 8 of the Elements of Crimes provides that ‘[t]he elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict.’ In this regard, in line with the Pre-Trial Chamber’s approach in the Confirmation Decision, the Chamber notes that the Tadić Appeals Chamber, by reference to various provisions of the Geneva Conventions and Additional Protocols I and II, defined an armed conflict as follows (‘Tadić definition’): 299 (…) an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organised armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.

Like the Pre-Trial Chamber and Trial Chambers I and II, Trial Chamber III adopts the Tadić definition. Table 4  Overview of judicial decisions cited in international courts’ cases on ‘armed conflict’ (1993–2017) Judicial decision

Cited judicial decision(s)

Mucić, Delalić et al (ICTY, 1998)

Tadić (ICTY, 1995)

Aleksovski (ICTY, 1999)

Tadić (ICTY, 1995)

Karemera (ICTR)

Tadić (ICTY, 1995)

Brima, Kamara and Kanu (SCSL, 2012)

Tadić (ICTY, 1995) Limaj (ICTY, 2005)

Taylor (SCSL, 2012)

Tadić (ICTY, 1995)

Lubanga (ICC, 2012)

Tadić (ICTY, 1995)

Bemba (ICC, 2016)

Tadić (ICTY, 1995)

The overview of international criminal judicial decisions on point of ‘armed conflict’ shows that later international courts have consistently cited the Tadić jurisdictional decision defining the concept of armed conflict for the purposes of war crimes adjudication. The 2016 ICRC Commentary reiterates 150 Prosecutor v Bemba (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”) ICC-01/05-01/08 (21 March 2016), para 128.

From Stabilisation to Perfect Alignment of Interpretive Outcomes  135 this interpretation, maintaining that such a definition has been ‘adopted by other international bodies and is generally considered as the contemporary reference for any interpretation of the concept of armed conflict under humanitarian law.’151 Such a practice suggests that later international courts interpreting the concept of armed conflict perceive the Tadić decision as a correct statement of the law, and therefore such an interpretive outcome is stabilised through the consistent citation in later judicial decisions. Being an authoritative statement of the law, the Tadić decision induces later courts to refer to those pronouncements instead of engaging with the interpretation of relevant provisions anew. This results in a perfect alignment with the interpretive outcome of the cited decision by later courts, which could have instead contributed to developing the definition further. All in all, this practice results in a routine citation of the Tadić jurisdictional decision in its relevant excerpts, which does not lead to a process of incremental formation of meaning, like in the case of ‘protected groups’ in the context of genocide. B.  National Courts between Entrapment and Revisionism The concept of armed conflict has come under the lens of national courts, not only in the context of war crimes allegations, but also in the context of violations of human rights committed in times of armed conflict. An overview of salient national pronouncements laid down by the UK, Germany, the USA and Israel on ‘armed conflict’ follows. In 2017, the UK Supreme Court decided the case of Abd Ali Hameed Al-Waheed v Ministry of Defence and Serdar Mohammed v Ministry of Defence, concerning damages for the alleged maltreatment and unlawful detention of two individuals by British armed forces, in time of armed conflict.152 In 2010, British armed forces captured Mr Serdar Mohammed, an Afghan national, on suspicion of being a Taliban commander and they detained him for 110 days in a British military base before transferring him to the Afghan authorities. Separately, in 2007, British armed forces captured Mr Abd Ali Hameed Ali Al-Waheed, an Iraqi citizen, in Iraq, when a coalition of armed forces led by the United States and including UK forces invaded Iraq. Mr Abd Ali Hameed Ali Al-Waheed was held in detention for 46 days. The two cases were joined before the UK Supreme Court, which was to determine, inter alia, whether relevant human rights provisions on deprivation of liberty accommodate international humanitarian law

151 JM Henckaerts (ed), ICRC Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 (Cambridge University Press, 2016), para 218 (emphasis added). 152 Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) and Serdar Mohammed (Respondent) v Ministry of Defense (Appellant) [2017] UKSC 2, 17 January 2017.

136  The Entrapment of Judicial Decisions in the context of detention in non-international armed conflicts. The Court observes that, for the definition and classification of an armed conflict, the decisions of the ICTY are ‘the leading modern authorities’.153 In particular, they identify non-international armed conflicts by reference to their duration, their intensity and the degree of organisation of the non-state actors engaged. In its widely cited decision in Prosecutor v. Duško Tadić (Jurisdiction of the Tribunals) ICTY Case No IT-94-1-AR72 (2 October 1995), the Tribunal held (para 70) that an armed conflict existed ‘whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state’, provided that it exceeds the ‘intensity requirement applicable to both international and internal armed conflicts’.154

In 2016, the German Oberlandesgericht of Frankfurt am Main adjudicated a case of war crime committed in Syria by a German national with Iranian roots.155 The accused became a radicalised Salafist while in Germany, and decided to travel to Syria. There, he was photographed posing with heads of corpses of enemy combatants, and degrading them. After his return to Germany, these photos were uploaded on social media. War crimes charges were brought against the accused under the German International Criminal Code.156 In determining the existence of an armed conflict, the Court acknowledges that neither the ICC Statute, nor the International Criminal Law Code (VStGB) implementing the ICC Statute, define the term ‘armed conflict’. By reference to specialised commentaries to the ICC Statute, the Court reaffirms the criteria of intensity, duration and organisation laid down by the ICTY jurisprudence as regards non-international armed conflicts: II. Non-international armed conflict During the period of the offense, there was a non-international armed conflict in the Syrian province QR within the meaning of para 8 Abs. 1 VStGB.157 [For t]he concept of armed conflict, [what is] decisive is the factual existence of a dispute of a certain intensity and duration, in which parties to the conflict resort to armed force (see Zimmermann / Geiss, in: Munich Commentary StGB, 2nd ed., 2013, para 8 VStGB, paragraph 96, 108ff.). If the armed conflict is carried out not between states but between the government and organised armed groups or between such groups within a state, this is a non-international armed conflict (see Zimmermann / Geiss, cited above, para 96). In order to differentiate between the concept of armed conflict and the involvement of non-governmental groups in ordinary crime, disorganised and short-lived 153 Ibid para 11 (emphasis added). 154 Ibid (emphasis added). 155 Prosecutor v Aria Ladjedvardi, OLG Frankfurt am Main, 5-3 StE 2/16-4-1/16, Judgment 12 July 2016. 156 The case is interesting as it tackles the question of whether a deceased body of a protected person under the terms of the 1949 Geneva Conventions can be per se considered protected under the Conventions. 157 Ie Völkerstrafgesetzbuch, ie the International Criminal Law Code.

From Stabilisation to Perfect Alignment of Interpretive Outcomes  137 uprisings or singular terrorist activities, the duration and intensity of the violent conflict requires a certain degree of organisation of the conflicting parties involved, which enables them to do so on the basis of military discipline and de facto authority to plan and carry out sustained and concentrated military operations (see also Zimmermann / Geiß, loc. cit., para 111), see also Art. 8 (2) (d) and (f) of the ICC Statute, which deals with domestic armed conflicts with internal disturbances such as riots, isolated acts of violence and other similar acts, and lit.f requires that there be a long-lasting armed conflict between state authorities and organised armed groups or between such groups […]158

The reference to the ICTY Tadić jurisprudence is in this case indirect, insofar as the Court cites specialised commentaries to the Rome Statute expressly referring to the Tadić decision: ‘the concept [of protracted armed violence] has been drawn from the ICTY case law [Tadić Interlocutory Appeal on Jurisdiction, para 70]’.159

158 (Translation

of this author). Cf Prosecutor v Aria Ladjedvardi (n 155):

II. Nichtinternationaler bewaffneter Konflikt Im Tatzeitraum lag in der syrischen Provinz QR ein nichtinternationaler bewaffneter Konflikt im Sinne des para 8 Abs. 1 VStGB vor. Der Begriff des bewaffneten Konflikts, der weder im Römischen Statut des Internationalen Strafgerichtshofes vom 17. Juli 1998 (IStGH-Statut) noch in dem im Jahre 2002 in Kraft getretenen Völkerstrafgesetzbuch (VStGB), in dem die Regelungen des IStGH-Statuts Eingang in das materielle deutsche Strafrecht gefunden haben (vgl. BT-Drs. 14/8524, S. 12), definiert wird, knüpft allein an die tatsächlichen Gegebenheiten an und ist unabhängig von (Kriegs-) Erklärungen oder politischen Willensbekundungen der beteiligten Konfliktparteien (vgl. Triffterer/Cottier, Commentary of the Rome Statute of the International Criminal Court, 2. Aufl. 2008, Art. 8 Rdnr. 5). Maßgeblich ist das faktische Vorliegen einer Auseinandersetzung von gewisser Intensität und Dauer, bei der entsprechende Konfliktakteure gegenseitig Waffengewalt einsetzen (vgl. Zimmermann/Geiß, in: Münchener Kommentar StGB, 2. Aufl. 2013, para  8 VStGB Rdnr. 96, 108ff.). Wird der bewaffnete Konflikt nicht zwischen Staaten, sondern zwischen der Regierung und organisierten bewaffneten Gruppen oder zwischen solchen Gruppen innerhalb eines Staates ausgetragen, handelt es sich um einen nichtinternationalen bewaffneten Konflikt (vgl. Zimmermann/Geiß, a.a.O., Rdnr. 96). Um den Begriff des bewaffneten Konfliktes bei Beteiligung nichtstaatlicher Gruppen von gewöhnlicher Kriminalität, unorganisierten und kurzlebigen Aufständen oder singulären terroristischen Aktivitäten abzugrenzen, ist neben Dauer und Intensität der gewaltsamen Auseinandersetzung ein gewisser Organisationsgrad der beteiligten Konfliktparteien notwendig, der sie dazu befähigt, auf der Basis militärischer Disziplin und faktischer Autorität anhaltende und konzentrierte militärische Operationen zu planen und durchzuführen (vgl. Zimmermann/ Geiß, a.a.O., Rdnr. 111; vgl. auch Art. 8 Abs. 2 lit. d und f IStGH-Statut, die innerstaatliche bewaffnete Konflikte gegenüber Fällen innerer Unruhen und Spannungen wie Tumulten, vereinzelt auftretenden Gewalttaten und anderen ähnlichen Handlungen abgrenzen, wobei lit. f zudem voraussetzt, dass zwischen staatlichen Behörden und organisierten bewaffneten Gruppen oder zwischen solchen Gruppen ein lang anhaltender bewaffneter Konflikt besteht). (…) vielmehr überschreiten diese bewaffneten Auseinandersetzungen hinsichtlich Dauer und Umfang das erforderliche Maß an Intensität. Auch weisen die beteiligten Akteure die notwendige Organisationsstruktur auf, denn sie sind hierarchisch aufgebaut und in der Lage, Kämpfer zu rekrutieren sowie anhaltende und konzentrierte militärische Operationen zu planen und durchzuführen. 159 M Cottier, ‘Article 8 – War Crimes’ in O Triffterer (ed), The Rome Statute of the International Criminal Court (Beck/Hart/Nomos, 2008) 330–338.

138  The Entrapment of Judicial Decisions Across national courts, the practice of interpreting the concept of armed conflict does not appear to be as homogeneous as before international jurisdictions. To illustrate, Israel’s judicial decisions interpreting ‘armed conflict’ seem to suggest a different definition than the one developed in Tadić. In the Targeted Killing decision,160 Israel’s High Court of Justice had to establish whether the Israeli security forces’ policy of killing alleged members of terrorist organisations (targeted killing) was in conformity with international humanitarian law. It was reported by the petitioner that, between 2000 and 2005, targeted killing conducted in the West Bank and the Gaza Strip caused the deaths of almost three hundred individuals, who were considered to be affiliated to terrorist organisations. After recalling factors suggesting a degree of intensity in the military confrontation between Israeli forces and ‘terrorist groups’ active in Judea, Samaria and the Gaza Strip,161 the High Court of Justice characterises the conflict between Israel and terrorist groups as international, citing scholarship on the state of occupation,162 and affirms: This law applies in any case of armed conflict of international character – in other words, one that crosses the border of a state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation.163

In Hamdan v Rumsfeld,164 the US Supreme Court heard the case of a Yemeni national, Salim Ahmed Hamdan, who in 2001, during the hostilities between the US and the Taliban (then governing Afghanistan) was captured by militia forces and transferred to the US military. The US believed him to be a bodyguard and personal driver of Osama bin Laden and hence, in 2002, transferred him to Guantanamo Bay, Cuba. In 2003, the US President considered Hamdan eligible for trial by military commission for then-unspecified crimes. A year later, he was charged with one count of conspiracy ‘to commit … offenses triable by military commission.’165 The US Supreme Court avoided characterising the conflict, based on the irrelevance of the nature of the armed conflict for the purposes of materially applying common Article  3. Interestingly, to substantiate a wide reading of Article 3, the Court referred to the ICRC Commentaries quoting the ICJ case Nicaragua v US (1986) and the Tadić Jurisdictional Decision (paragraph 102), the latter stating ‘the character of the conflict is irrelevant’ in deciding whether common Article 3 applies.166

160 The Public Committee against Torture in Israel et al v The Government of Israel et al, Israel Supreme Court sitting as High Court of Justice, HCJ 769/02, 11 December 2005. 161 Cf ibid para 16, referring to protracted attacks, number of casualties, and use of military means. 162 Ibid para 18. 163 Ibid (emphasis added). 164 Hamdan v Rumsfeld et al, 548 US 557 (2006). 165 ‘President’s Military Order’, 13 November 2001, in Federal Registrar, vol 66, no 222, 16 November 2001, pp 57833-57836, Section 4, available on http://www.state.gov/. 166 Hamdan v Rumsfeld et al (n 164), p 66.

Interim Conclusions  139 In its most recent commentary to the First 1949 Geneva Convention, Article 3, the ICRC affirms: ‘The fact that these two criteria [intensity and organisation] have been referred to from soon after the adoption of common Article 3, and have been reaffirmed and fleshed out over the years, confirms their decisiveness for determining the threshold of application of common Article 3’.167 Table 5  Overview of judicial decisions cited in national courts’ cases interpreting ‘armed conflict’ Judicial decision

Cited judicial decision(s)

Al-Waheed (UK)

Tadić (ICTY, 1995)

Ladjedvardi (Germany)

indirect reference to Tadić (ICTY, 1995) via specialised commentaries

Targeted Killing (Israel)

departure from international case law

Hamdan (US)

Nicaragua v US (ICJ, 1986) Tadić (ICTY, 1995)

The scrutiny of national judicial decisions on point of armed conflict suggests that national judicial decisions cite international judicial decisions in the process of interpreting the concept of armed conflict in the context of war crimes prosecution as well as in relation to violations of human rights committed in times of armed conflict. This again supports that national courts take prior international jurisprudence on the matter to be exerting normative force. However, while international judicial decisions consistently cite the definition of ‘armed conflict’ put forward in Tadić verbatim, national judicial practice exhibits a more heterogeneous approach. On the one hand, national courts do refer to international jurisprudence laid down by the ICTY in Tadić, alternating verbatim references such as in the Abd Ali Hameed Al-Waheed v Ministry of Defence and Serdar Mohammed v Ministry of Defence (UK), to indirect reference to the criteria set forth by the ICTY case law like in the German case,168 to a departure from the international settled jurisprudence, as shown by the Israeli case. The US case expressly cites a passage of the Tadić jurisdictional decision concerning the irrelevance of distinguishing between international and non-international armed conflict given the increasing convergence of the two bodies of rules, thus underscoring that it perceives the cited international judicial decision as a basis of justification to avoid characterising the conflict. V.  INTERIM CONCLUSIONS

This chapter has showcased the use of judicial decisions in international and national adjudication on points of international criminal law. This analysis has

167 Commentary 168 Prosecutor

on the First Geneva Convention (n 151), para 435 (emphasis added). v Aria Ladjedvardi (n 155).

140  The Entrapment of Judicial Decisions not sought to be comprehensive or claimed to be comprehensive of all practices on points of international criminal law. Three points can be reasonably asserted at this stage. First, in adjudicating international law issues, courts across different international and national jurisdictions resorted to judicial decisions. Secondly, judicial decisions – both international and foreign national – were used to justify or draw support for findings in casu. This could be appreciated as an indication of the acceptance of the reason for action chosen by an international or foreign judge. Thirdly, judicial citation practices structure legal argumentation, and may be rationalised according to two models: one of incremental formation of meaning, marked by a harmonious evolution along the same course of action; and one of revisionism, seeking departure from previous courses of action. Positions of perfect alignment and of radical departure may ensue therefrom. The retrospective analysis performed shows the potential of judicial citation to structure interpretive outcomes around a reason for action. As citation of prior judicial decisions appears principled, vis-à-vis international and national jurisdictions alike, this suggests that reasons for action have become ingrained in the practice of interpreting and understanding international criminal law. As explained earlier,169 as the choice of a reason for action falls within the remit of the judge’s discretion, the citation of prior decisions underscores the fact that the law perpetuates the choice of the course of action made in prior cases.



169 See

ch 2.

5 Rewriting the Meaning of International Law I.  SOCIAL ACCEPTANCE AS A VALIDATOR OF CORRECTNESS: ANY ROOM FOR CHANGE?

I

n the analysis led so far, we have established that judicial decisions play an important role in legal argumentation, insofar as they may be used as justificatory arguments for the correctness of an interpretation in later judicial decisions. Judicial decisions may for instance set forth a norm to be considered in legal adjudication, such as the norm of interpreting law in light of legal stability, predictability, and formal justice.1 Within an argumentative framework, courts choose arguments which best convince an audience of courts in later cases. Citation of prior decisions is hence an avenue through which courts flag decisions which are regarded as correct statements of the law. As interpretation aims to convince through argumentation, the iterative use of judicial decisions shows which arguments have been accepted by courts as most convincing and hence correct. As Bourdieu puts it, ‘the judgment represents the quintessential form of authorised, public, official speech (…). These performative utterances, substantive decisions … are magical acts which succeed because they have the power to make themselves universally recognised. They thus succeed in creating a situation in which no one can refuse or ignore the point of view, the vision, which they impose.’2 A fortiori, positing that repetition of judicial decisions evidences a belief, which socially sanctions the content of cited decisions as correct, prompts important reflections on the potential prescriptive weight that such reiterative judicial citation practice brings with itself in the argumentative practice of international criminal law. By regularities, reference is made to a series of consistent attitudes, behaviours, actions, repeated over time by courts. The international law doctrine has acknowledged the relevance of regularities in the formation and identification of international law. For instance, from a doctrinal point of view, the 1 In this context, formal justice refers to determining like cases alike. 2 P Bourdieu (Introduction by R Terdiman), ‘The Force of Law: Towards a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805, 838.

142  Rewriting the Meaning of International Law existence of customary international law can be deduced from the practice of states, when elements of duration, consistency, repetition and generality may be identified.3 In the Asylum case, the ICJ determined that a rule of customary international law ‘… is in accordance with a constant and uniform usage practised by the states (…)’.4 In the Fisheries case5 and in the North Sea Continental Shelf cases,6 the ICJ emphasised elements of uniformity, or virtual uniformity, in state practice. In the context of international law, repetition consists of creating a ‘sense of narrative coherence’ putting in relation practice in the present with practice in the past.7 UN Security Council resolutions have also been analysed through the prism of regularities.8 Repetition of prior resolutions within later resolutions has allowed certain narrative structures to emerge, to reiterate something already existing and, at the same time, transform it into something new.9 Yet to establish a narrative between past and present practice, it is necessary for that practice to share a degree of similarity. This is a common thread when dealing with the identification of custom, the creation of narratives by UN Security Council resolutions, as well as for the use of judicial decisions in international criminal law. In the process of identifying rules of customary international law, it is necessary that state actions be regarded as relevant for the rule to be established.10 Similarly, in the adjudication of international criminal law, judicial decisions are typically invoked in like cases. For a court, showing a degree of similarity, or rationally justifying the use of certain instruments because two or more situations or cases can be regarded as similar, is an important step in convincing an audience that certain practice

3 MN Shaw, International Law, 8th edn (Cambridge University Press, 2017) 56. 4 Columbian-Peruvian Asylum case (Colombia v Peru) (Judgment) [1950] ICJ Rep 266, 284. Incidentally, it is worth observing that, in the Asylum case, similarly to other cases scrutinised throughout this work, the Court determined the criteria of ‘constant and uniform’ in the context of deciding whether the existence of the relevant rule of customary international law could be demonstrated. To be clearer, similarly to the ICTY Appeals Chamber in Tadić, which identified the overall control test to determine the nature of the armed conflict, within the same decision, the ICJ is proceeding along the same path of identifying a ‘test’, or a set of criteria, to determine whether a customary rule could be invoked. 5 Fisheries case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116, 131 and 138. 6 North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) (Judgment) [1969] ICJ Rep 3, para 74. 7 W Werner, ‘Recall it again, Sam. Practices of Repetition in the Security Council’ (2017) 86 Nordic Journal of International Law 151, 162. 8 Ibid. Werner seemingly takes a prospective approach in asking what effects the repetition of UN Security Council resolutions in later resolutions can produce in the present and in the future. Instead, the approach of this work on the use of judicial decisions is primarily retrospective, namely it is interested in assessing what effects repetition in the use of judicial decisions has created on later adjudication practice of international criminal law. While Werner’s approach pertains to what repetition can do, the present work attains to what repetition has done. 9 Ibid 156–157. 10 The ICJ referred for example to an ‘extensive and virtually uniform in the sense of the provision invoked’. See North Sea Continental Shelf (n 6), para 74.

Social Acceptance as a Validator of Correctness  143 be rooted in tradition or in a path of similar practice. In international criminal adjudication, the existence of a line of like cases even requires later like cases to be treated alike, and in that it displays all its potential to yield normative effects. The assessment of this similarity, or likeness, rests with the court in the later case, and presupposes that a court selects cases as potential like cases. Again, both these actions fall within a court’s discretion. With the exception of lower courts bound to follow higher courts’ decisions, other courts operate in a context of ‘deliberative reasoning’, in which later courts assess the content of prior decisions and decide to follow them or not. However, a sort of threshold marks the point at which departing from an accepted course of action is no longer perceived as possible (eg the verbatim reference to the notion of ‘armed conflict’ given in the Tadić Interlocutory Appeal determining a perfect alignment by later judicial decisions), as departure from such an established course of action would be sanctioned as not in conformity with international law. Thus, once a web of judicial decisions become reference points for a discipline and deploy normative effects on later decisions (a clear example of this being Tadić Interlocutory Appeal on Jurisdiction), how would the system ensure that those findings are contested, or that what has materialised in terms of normative effects is ‘undone’, remedied, or corrected? While admitting that orthodox methods of law-making, such as treaty-making, would seemingly create room for departing from a certain interpretive aquis, the aim of this chapter is rather to show how change was enabled through legal argumentation. A classic example of contestation (or struggle) may be traced in the divergent interpretations between the ICJ and the ICTY on the test of attribution of actions of non-de jure organs of a state to that state, the former advocating for the effective control test, the latter for the overall control test. As expressed by Judge Antonio Cassese,11 who presided over the ICTY Appeals Chamber when the Tadić Appeal Judgment was rendered in 1999,12 the overall control test was applied for attributing the conduct of organised armed groups to the state, to soften the effective control test applied by the ICJ in attributing the conduct of the contras in Nicaragua to the US. The effective control test might in fact prove too stringent when dealing with organised groups which, precisely because of this attribute, already function according to internal hierarchical structures. The Tadić Appeal Judgment takes the cues from a series of judicial decisions, mainly international arbitral awards, to assert the ‘overall control test’ or, rectius, to justify departure from the ‘effective control test’ affirmed by the ICJ for attributing the conduct of organised groups to a state.13 11 A Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of International Law 649. 12 Prosecutor v Tadić (Judgment) ICTY-94-1-A (15 July 1999). 13 Ibid paras 120 et seq.

144  Rewriting the Meaning of International Law After the Nicaragua judgment in which the test was formulated as an ‘­apodictic truth’,14 the ILC upheld the effective control test based only on the Nicaragua case, and asserted its validity as a reflection of customary international law. The contestation was exacerbated by the ruling of the ICJ in the Bosnian Genocide case15 in which it tried to reconcile the two tests by distinguishing their field of operation, that is, state responsibility and classification of the conflict.16 Although the contention might appear settled from a legal point of view, the latest ICRC Commentaries to the Geneva Convention (2016) admits the resort to the overall control test also for the purpose of imputing conduct to a state for the purpose of state responsibility, as advocated by Cassese.17 As such, the ‘overall control test’ consists of an argumentative structure articulated in the Tadić Appeal Judgment.18 A later court applying this norm can invoke the Tadić Appeal Judgment as an argument justifying the existence of that norm. Consistent reference thereto by other courts in subsequent cases indicates that such a norm, in terms of its content, justification, and reason for action, is understood by courts following it in later judicial decisions as correctly ascertained and valid in international law. As a consequence, that norm would arguably be understood as part of the law, and yield its effects beyond the case in which it was formulated. Whether the overall control test is valid in a doctrinal sense is secondary to understanding what judges believe that norm to be.19 14 Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (n 11), 651. 15 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43. 16 Ibid paras 402–407. 17 Commentary to common Article  3, J-M Henckaerts (ed), ICRC Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 (Cambridge University Press, 2016) updating the ICRC Commentaries of 1952-1960), paras 407–410. In particular: [409] In order to classify a situation under humanitarian law involving a close relationship, if not a relationship of subordination, between a non-State armed group and a third State, the overall control test is appropriate because the notion of overall control better reflects the real relationship between the armed group and the third State, including for the purpose of attribution. It implies that the armed group may be subordinate to the State even if there are no specific instructions given for every act of belligerency. Additionally, recourse to the overall control test enables the assessment of the level of control over the de facto entity or non-State armed group as a whole and thus allows for the attribution of several actions to the third State. Relying on the effective control test, on the other hand, might require reclassifying the conflict with every operation, which would be unworkable. Furthermore, the test that is used must avoid a situation where some acts are governed by the law of international armed conflict but cannot be attributed to a State. [410] This position is not at present uniformly accepted. The International Court of Justice has determined that the overall control test can be used to classify a conflict but that the effective control standard remains the test for attribution of conduct to a State, without clarifying how the two tests would work together. 18 An argumentative structure is defined as the inference of conclusions from premises based on justification by way of arguments and reasons for action. See ch 6, section I. 19 J von H Holtermann, ‘Naturalising Alf Ross’s Legal Realism – A Philosophical Reconstruction’ (2014) 24 Revus: Journal of Constitutional Theory and Philosophy Law 1, 5.

Social Acceptance as a Validator of Correctness  145 Similarly, alternative reasons have been offered to incept legal change. In the Tadić Interlocutory Appeal on Jurisdiction, the ICTY Appeals Chamber for the first time affirmed the criminalisation of serious violations of the law and customs of war committed in non-international armed conflict, by reference to ‘elementary considerations of humanity and common sense’: 119. (…) Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.20

The reasons invoked have enabled the chamber to analogise international and non-international armed conflicts, and extend the obligation prohibiting the use of certain weapons in force in international armed conflicts to non-international armed conflicts. As arguments express reasons for action, ‘considerations of humanity’, legal stability and predictability, among others, influence later judicial practice as a matter of substance, rather than as a matter of hierarchical structure. At this point, it is important to reflect on what acceptance means from the point of view of the formation of international criminal law. Acceptance may be understood to stand for the belief of courts that prior judicial decisions are to be followed based on the fact that later courts understand them as embedding a correct interpretation of the law. Such a construction may be seen as having some form of kinship with HLA Hart’s rule of recognition, in which belief is understood from an internal point of view to the actors engaging in a certain uniform or converging practice.21 This internal point of view is distinct from the external point of view, which instead refers to the behaviour of relevant actors. Other conceptualisations of acceptance are however possible. Let us consider the case of courts adjudicating international criminal law. Judicial practice is not a behaviour which can be separated from its normative aspects, namely that it consists in the interpretation and application of the law. Instead of a bifurcated structure looking at repetition and acceptance as two different elements of the law formative process through judicial decisions, one could look at the practice of adjudicating international criminal law as a ‘discursive normative practice’.22 This expression, introduced by Gerald Postema, is here used to indicate a set of actions which, by being nested in the law and unfolding in the context of it, cannot be easily split into a behavioural and empirically observable component 20 Prosecutor v Tadić (Decision on the Defence Motion on Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995) para 119 (emphasis added). 21 HLA Hart, The Concept of Law (Oxford University Press – reprinted 1994) 88–91, 102–104. 22 The point made here echoes Gerald Postema’s conceptualisation of custom as a kind of discursive normative practice, in which a normative practice and a discursive practice take place in a ‘thickly interdependent social interaction’. Cf GJ Postema, ‘Custom, Normative Practice, and the Law’ (2012) 62 Duke Law Journal 708, 722ff.

146  Rewriting the Meaning of International Law on the one hand, and a belief component, on the other.23 Repetition in practice and belief are integrated.24 According to Postema, a rule which is to be identified may be derived from a normative and discursive practice rather than through empirical demonstration.25 Yet this is not to say that observation of empirical regularities becomes ­irrelevant,26 as arguments to follow prior judicial decisions are actually reflected in citation practice. Adjudication is a crucial setting in which international law rules are authoritatively interpreted, becoming available to the argumentative practice of international criminal law. At a micro-level, the citation of a prior judicial decision in a later case may already suggest acceptance of that decision as a correct and persuasive interpretation of the law. This entails acceptance of practice that interprets international law, determines rules of international law, offers reasons for action, and inherently fosters developments in international criminal law, by formulating norms (eg the ‘overall control test’) and by justifying them. These are meaningful for the understanding of international criminal law, in that they offer arguments and reasons for action, which are rationally assessed, used and, if accepted as correct, followed in later judicial decisions. Repetition and social acceptance – of arguments and reasons – are thus integrated into a ‘discursive network’,27 or argumentative framework, of relevant actors adjudicating international criminal law. Thus, speaking of regularities in international law does not make it into a behavioural discipline, nor does it deprive it of a legal or normative character.28 The regular, recurring, repetition of certain judicial decisions in international law comes with the description of a normative claim, namely that judges understood a prior judicial decision as a model to be followed in a later decision. As such, courts have justified the reiteration of judicial decisions as normgoverned,29 attaching to regularities a normative significance.30 For instance, 23 Notably, Postema rejects the notion of belief or psychological state of mind, and uses instead the notion of commitment to underscore that actors undertaking a certain conduct do so rationally, and not under the effect of a belief. On the point, see also S Shapiro, ‘What is the Internal Point of View?’ (2006) 75 Fordham Law Review 1157. 24 GJ Postema, ‘Custom, Normative Practice, and the Law’ (n 22) 730. 25 Ibid. 26 Ibid 731. 27 Ibid 730. 28 The critique typically raised against the observation of empirical regularities could be termed ‘the brute fact critique’. This critique submits that an empirical approach to law reduces it to a behavioural phenomenon (a ‘brute fact’), deprived of any normativity (ie normative substance) which is instead a fundamental characteristic of the law. On the point, see O Weinberger, ‘Facts and Fact-Description – A Logical and Methodological Reflection on the Basic Problem for the Social Sciences’ in N MacCormick and O Weinberger (eds), An Institutional Theory of Law – New Approaches to Legal Positivism (Springer, 1986) 77–92. Weinberger suggests replacing Searle’s dichotomy between ‘brute facts’ and ‘institutional facts’ with the one between ‘raw facts’ and ‘humanly-conditioned facts’. 29 This was proposed by legal realists such as Alf Ross, who warned against approaching the study of law from a rigid behaviouristic perspective, and suggested adopting an ‘introspective method’ to the legal attitudes described. A Ross, On Law and Justice (University of California Press, 1959) 15.

Social Acceptance as a Validator of Correctness  147 in considering the weight to ascribe to its prior judicial decisions or the jurisprudence of other tribunals, the ICTY Appeals Chamber affirmed that, ‘in the interests of justice’, it should follow its prior decision although it is not bound to do so. The Appeals Chamber is not bound by its prior decisions, but it should not depart from them. As discussed earlier,31 in Aleksovski the ICTY Appeals Chamber recalled that ‘the principle of the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases’,32 and it provided an indication about what constitutes ‘cogent reasons’ to depart from previous cases: 108. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law.’ 109. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.33

This very norm – notably argumentative – according to which cogent reasons to depart from previous judicial decisions exist when these have been rendered per incuriam has also been invoked in the Delalić et al case,34 in which one of the appellants argued that the characterisation of the international armed conflict on the basis of the overall control test was erroneous. 26. … this Appeals Chamber is unable to conclude that the decision in the Tadić was arrived at on the basis of the application of a wrong legal principle, or arrived at per incuriam. After careful consideration of the arguments put forward by the appellants, this Appeals Chamber is unable to find cogent reasons in the interests of justice to depart from the law as identified in the Tadić Appeal Judgement. The ‘overall control’ test set forth in the Tadić Appeal Judgement is thus the applicable criteria for determining the existence of an international armed conflict.35 On the point, see A Aarnio, Reason and Authority (Ashgate, 1997) 74; T Spaak, A Critical Appraisal of Karl Olivercrona’s Legal Philosophy (Springer, 2014) 80. 30 Aarnio, Reason and Authority (n 29) 74. Aulis Aarnio acknowledges that Alf Ross draws the distinction between ‘the view points of the player [of chess] and a person observing the game from outside. For an outsider, the rules of the game are an interpretation scheme that makes it possible to understand the playing. (…) The scholar uses the legal rules as an interpretation scheme, and the legal rules make an understanding of the behaviour possible at a time when it is possible, with justification, to consider them to belong to the normative ideology internalised by the judge. This, again, can be concluded only supposing that the judge follows a similar kind of a model of thinking as jurists in general.’ 31 Ch 2, section IV.B. 32 Prosecutor v Aleksovski (Judgment) ICTY-95-14/1-A (24 March 2000), para 102. 33 Ibid paras 108–109. 34 Prosecutor v Delalić et al (Judgment) ICTY-96-21-A (20 February 2001). 35 Ibid para 26.

148  Rewriting the Meaning of International Law While in Aleksovski, the Appeals Chamber determined that a cogent reason to depart from an earlier decision exists when such decision was reached by misapplication of the law, namely by applying a wrong legal principle or because judges were ill-informed about the law; in Delalić et al this norm was applied to a concrete instance where the ‘overall control test’, qua legal standard, was challenged by the appellants. By confirming the validity of the ‘overall control test’ established in the Tadić Appeals Judgment, the Appeals Chamber corroborated the norm settled in a prior judicial decision. As such, Aleksovski embeds a norm which is related more to the modus of deciding later cases, or procedural aspects, than to the substantive content of a legal rule. By setting such a norm, the Appeals Chamber laid down a basis to control later judicial decisions: only if cogent reasons in the interests of justice demand departure from prior jurisprudence would the Appeals Chamber proceed accordingly. Conversely, later judicial decisions may justify convergence with prior jurisprudence based on the reason (or argument) laid down in Aleksovski.36 II.  DEPARTING FROM THE ‘ESTABLISHED JURISPRUDENCE’: THE CASE OF GENOCIDE

In chapter VI, the practice of international and national courts interpreting the concept of ‘protected group’ was analysed. It was shown that judicial decisions are regularly used in the argumentation of international criminal law, and pointed out how certain judicial decisions of international courts progressively became reference points in legal interpretation. By appealing to legal stability, certainty, formal justice, uniformity, and rationality, among others, courts have been able to reaffirm past interpretive outcomes over other plausible ones.37 Referring to those reasons has enabled the emergence of what could be termed ‘jurisprudence by inertia’, in that courts in subsequent like cases will not depart from prior decisions unless ‘compelling’ reasons so demand. Hence, by ­inertia,38 certain judicial decisions have been perpetuated as accepted as correct by other courts, becoming part of a body of correct arguments. As the ‘established jurisprudence’ of the court imposes itself as a body of judicial decisions to be followed, and thus self-constrains the chamber towards its prior holdings, the 36 On this point, see P Chiassoni, ‘The Philosophy of Precedent: Conceptual Analysis and Rational Reconstruction’ in T Bustamante and C Bernal Pulido (eds), On the Philosophy of Precedent – Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, Vol III (Nomos, 2009) 13–34, 17–22. 37 Jerzy Wróblewski associates these values with static normative theories of interpretation, in which ‘the task of changing the law falls solely to the lawgiver’, while ‘the interpreter has only to apply the duly enacted law’. These theories are distinguished from dynamic normative theories, which assume ‘the dynamic relativity of legal concepts’ which adapt over time thanks to the interpreter. See J Wróblewski, Meaning and Truth in Judicial Decision (Juridica, 1979) 19–20. 38 The concept of ‘inertia’ has been introduced in ch 2, section III.

Departing from the ‘Established Jurisprudence’  149 iterative use of judicial decisions appears germane to the formative processes of international law. This is a material indication of the effects produced by earlier decisions on the chamber itself, as well as on other courts.39 Against this background, the present section shows how departure therefrom was, if at all, enabled. One example of departure stems from interpreting the definition of protected groups as a minimum definition, rather than as an exhaustive one. Interestingly, accepting a minimum definition of protected groups over the exhaustive one can also be observed through the process of citing international law material. While, as discussed earlier in the context of the Mengistu case,40 Ethiopia formally extended the protection of genocide to political groups pursuant to the Ethiopian criminal code,41 national courts in other jurisdictions have reached the same outcome while yet retaining the definition of genocide as provided by the Genocide Convention. One instance thereof is offered by the case of Prosecutor v Etchecolatz decided by the Federal Oral Criminal Court of La Plata (Argentina) which interpreted the notion of national group as to include political groups.42 The Etchecolatz case, known for having found the state-run policy to exterminate political dissidents (the so-called ‘Proceso de Reorganisación Nacional’) to amount to genocide, pertained to acts of killings, torture and illegal detention committed by Miguel Etchecolatz during the dictatorship of the Military Junta in Argentina between 1976 and 1983. During such time, Etchecolatz

39 In particular, at a vertical level, higher courts’ decisions are binding over lower instances. At a horizontal level, the norm to follow prior judicial decisions also applies with regard to judicial decisions emanating from the same level of judgment (ie trial chambers’ and appeal chambers’ decisions). 40 See ch 4, section III. 41 Article 281 of the 1957 Ethiopian Penal Code, now Article 269 of the 2004 Criminal Code of the Federal Democratic Republic of Ethiopia, reading as follows: Art. 281. Genocide; Crimes against Humanity: Whosoever, with the intent to destroy, in whole or in part a national, ethnic, racial, religious or political group, organises, orders or engages in, be it in times of war or in times of peace: (a) killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or (b) measures to prevent the propagation or continued survival of its members or their progeny; or (c) the compulsory movement or dispersion of peoples or children, or their placing under living conditions calculated to result in their death or disappearance, is punishable with rigorous punishment from five years to life, or, in cases of exceptional gravity, with death. As remarked by WA Schabas, this provision was drafted by Swiss expert Jean Graven. See Genocide in International Law – The Crime of Crimes, 2nd edn (CUP, 2009), 421. See also FK Tiba, ‘The Mengistu Genocide Trial in Ethiopia’ (2007) 5 Journal of International Criminal Justice 513, 518. 42 Prosecutor v Etchecolatz (Miguel Osvaldo), Judgment, 19 September 2006, Buenos Aires (Province), La Plata, Federal Oral Criminal Court No 1 (Etchecolatz case), available at http:// www.asser.nl/upload/documents/20120412T014157-Etchecolatz_sentensia_19-9-2006%20 Etchecolatz,%20Miguel.pdf.

150  Rewriting the Meaning of International Law held the position of Commissioner General of Police and General Director of Investigations, and was in charge of 21 clandestine Detention Camps in Buenos Aires. In examining whether political groups are protected by the Genocide Convention, the court expressly referred to UN GA Resolution 96(I) which led to the adoption of the Convention. The passages, cited by the court (original in Spanish), read as follows: (…) Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed entirely or in part.43 (…) The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, [a]ffirms that genocide is a crime under international law which the civilised world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable.44

The court hence finds that ‘it clearly emerges from the text of the cited UN GA Resolution that the international community also included political groups and others in the notion of genocide.’45 In addition, the court recalls the drafting history of the Convention, particularly Article II of the first draft Convention on the Prevention and Punishment of the Crime of Genocide, in order to demonstrate that political groups were indeed included in the definition of genocide.46 The reference to political groups was eventually excluded from the final version of the Convention ‘due to prevailing political circumstances’, and replaced by the reference to national groups. Based on this reasoning, the Argentinian court concludes that ‘there is no impediment to the categorisation of genocide in relation to the events that took place in [the] country in the period in question (…).’47

43 (Translation of this autor) Cf Etchecolatz, p 99: ‘Muchos crímenes de genocidio han ocurrido al ser destruidos completamente o en parte, grupos raciales, religiosos, políticos y otros (…)’. 44 The translation is of this author. Cf Etchecolatz, p 99: ‘La Asamblea General por lo tanto: Afirma que el genocidio es un crimen de Derecho Internacional que el mundo civilisado condena y por el cual los autores y sus cómplices, deberán ser castigados, ya sean estos individuos particulares, funcionarios públicos o estadistas y el crimen que hayan cometido sea por motivos religiosos, raciales o políticos, o de cualquier otra naturaleza.’ 45 (Translation of this autor). Cf Etchecolatz, p 99: ‘De la transcripción efectuada surge claro y es de sumo interés para este punto que en la Resolución citada, la comunidad internacional, horrorisada por el conocimiento de los crímenes cometidos por los nazis durante la segunda guerra mundial, sin vacilación incluyó en el concepto de genocidio, a los “grupos políticos, y otros” (SIC) en el primer párrafo transcripto y luego a los “motivos … políticos, o de cualquier otra naturaleza” (SIC)’. 46 ‘A su vez, el art. 2º del primer proyecto de Naciones Unidas de la Convención para la Prevención y Sanción del delito de Genocidio señalaba: “En esta Convención se entiende por genocidio cualquiera de los actos deliberados siguientes, cometidos con el propósito de destruir un grupo nacional, racial, religioso o político, por motivos fundados en el origen racial o nacional, en las creencias religiosas o en las opiniones políticas de sus miembros (…)”.’ 47 ‘(…) Entiendo que la respuesta afirmativa se impone, que no hay impedimento para la categorisación de genocidio respecto de los hechos sucedidos en nuestro país en el período en cuestión, mas

Departing from the ‘Established Jurisprudence’  151 To corroborate the finding that in Argentina a genocide took place between 1976 and 1983, the court cites foreign judicial decisions, notably Spanish decisions, relative to the trials of former officials of the Argentinian Military Junta. One of these is the Adolfo Francisco Scilingo case in which the Spanish court qualified the acts committed in Argentina between 1976 and 1983 as acts of genocide, even though the Spanish criminal code does not include political groups in its legal definition of genocide.48 Reference to international legal instruments, namely UN GA resolution 96(I) and the drafting history of the Convention, is made by the court in order to corroborate an interpretation of national group which encompasses political groups.49 However, no reference to the jurisprudence of the ad hoc tribunals is exhibited by the Argentinian decision. Indeed, with the exception of the Akayesu case, the practice of international tribunals excluded political groups from the scope of genocide protection. As discussed earlier, Akayesu is the only case which understood the genocide definition as a minimum one and envisaged the extension of the protection to other groups, provided that these are ‘stable’. These findings did not enjoy the support of subsequent judicial practice which consistently found that the genocide definition is instead exhaustive in the enumeration of protected groups. However, in the same vein as the ad hoc tribunals (cf ICTY in Krstić), the Argentinian court considered the drafting history of the Genocide Convention and relevant resolutions adopted by the UN General Assembly, reaching a conclusion which fundamentally departed from the interpretation of international jurisdictions. The reference to international instruments is meaningful as it indicates that the Argentinian court was going beyond the mere interpretation of relevant national provisions concerned with genocide. While in Mengistu national law provides for a valid legal basis to prosecute acts of genocide committed against political groups, the Argentinian court needed to interpret the term ‘national’ as to encompass political groups. In order to support this position, it turned to international instruments, notably non-legally binding ones such as relevant UN GA resolutions. Although both national jurisdictions determined that acts of genocide were committed against

allá de la calificación legal que en esta causa se haya dado a esos hechos a los efectos de imponer la condena y la pena. La afirmación que antecede proviene del análisis que sigue y es el resultado de la utilisación de la lógica más elemental. Ya en la sentencia de la histórica causa 13 se dió por probada la mecánica de destrucción masiva instrumentada por quienes se autodenominaron “Proceso de Reorganisación Nacional”.’ 48 (Translation of this autor) ‘Así, el 4 de Noviembre de 1998 el “Pleno de la Sala de lo Penal de la Audiencia Nacional” de España, con la firma de sus diez magistrados integrantes, al intervenir en la causa donde luego se condenó a Adolfo Francisco Scilingo, y respecto del punto aquí tratado, consideró que los hechos sucedidos en Argentina constituían genocidio, aún cuando el propio Código Penal Español vigente ignora como víctimas a los grupos políticos.’ 49 As shown above, the ICTR in the Akayesu case took the view that any stable groups could qualify as a protected group for the sake of the Genocide Convention, based on the intention of the drafters to criminalise acts intended to annihilate stable groups more generally. See ch 4, section II.B.

152  Rewriting the Meaning of International Law a political group, the techniques employed to reach this result sensibly differed as the Ethiopian court operated on the basis of a national definition of genocide which broadens the range of protection, while the Argentinian court embarked on an expansive interpretation of the term ‘national’, by reference to international non-binding instruments. Unlike the sources of international law, which are formally legally binding,50 judicial decisions are at best sources of normativity. By ‘normativity’ reference is made to ‘having the character of a norm which purports to guide or regulate conduct, making it mandatory, prohibited, permitted, or recommended.’51 The debate about the capability of non-legally binding instruments to create effects on the law is a long-standing one in international legal scholarship and is inherently connected to one’s concept on international law. Two powerful imageries have been invoked to address the concept of international law: ‘the bright line school’52 and ‘the grey line school’.53 The former maintains a binary character of international law as either law or non-law. According to this stream of thought, only international law can be legally binding and, if violated, it can engage the responsibility of the subject(s) acting in violation.54 In the practice of international law, law can be ‘extracted’ from the sources of international law, namely international treaties, international custom, and general principles of law (Article 38 of the Statute of the International Court of Justice). On the contrary, the grey line school admits the existence of a blurred boundary between law and non-law, hindering any clear separation between what falls within the remit of law and what does not.55 As such, the grey area comprises degrees of legal normativity. Along this ‘sliding scale’,56 legal norms bear different effects, which cannot be reduced to legal bindingness. The point of divergence between the two schools seemingly shifts between two questions, which are worth distinguishing. The first ontological question asks what international law is and to what extent it is possible to speak about

50 The question of the source of binding force in international law is extensively discussed by van Hoof. See GJH van Hoof, Rethinking the Sources of International Law (Kluwer, 1983) 71. 51 N Roughan, ‘Sources and the Normativity of International Law: From Validity to Justification’ in S Besson and J d’Aspremont (eds), The Oxford Handbook of Sources of International Law (Oxford University Press, 2017) 680–700, 680. 52 The ‘bright line school’ nomenclature was first used by Duncan Kennedy. See D Kennedy, ‘Form and Substance in Private Law Adjudication’ (1976) 89 Harvard Law Review 1685, 1689–1690. 53 J Pauwelyn, ‘Is It International Law or Not, and Does It Even Matter?’ in J Pauwelyn, RA Wessel and J Wouters (eds), Informal International Lawmaking (Oxford University Press, 2012) 125–61, 127–28. 54 U Fastenrath, ‘Towards Relative Normativity in International Law’ (1983) 77 American Journal of International Law 413; J Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International Law 167. 55 Pauwelyn, ‘Is It International Law or Not, and Does It Even Matter?’ in Pauwelyn, Wessel and Wouters (eds), Informal International Lawmaking (n 53) 125–61. 56 M Goldmann, ‘We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law’ (2012) 25 Leiden Journal of International Law 235, 337.

Departing from the ‘Established Jurisprudence’  153 ‘law’ when it is in the process of being made.57 Jorge Castañeda captures the difficulty of talking about law in the context of law-making processes in addressing the status of UN organs’ resolutions as ‘leges imperfectae’:58 Perhaps the most serious consequence of the absence of an international legislator is the difficulty faced by the organs that apply international law of knowing when a practice has become a ‘true’ rule of law and when it is still a potential, embryonic rule, and of knowing whether a principle recognised by some but not all states is a general principle of law in the sense of Article 38 of the Statute of the Court [International Court of Justice], that is, a true source of law. Regarding nonconventional rules, there is no sign or criterion, formal and external, that indicates accurately when, under what conditions, and to what extent, the transition from a prejuridical stage to the sphere of true law occurs.59

The second question focuses on the effects produced by non-legally binding instruments, and questions whether non-law can yield legally binding effects among other possible legal effects.60 The expression ‘legal effect’ warrants some clarification. An effect may be ‘legal’ as an attribute of law. For instance, states’ unilateral statements (promises) produce legal effects, namely the effects typical of the law, that is, that they are legally binding.61 A legal effect may also consist in authorising an action by an international organisation.62 However, ‘legal effect’ may also stand for effects on the law. This may entail that non-legally binding instruments may produce effects on the way in which legal rules and principles are interpreted, thus affecting their legal meaning. Since the meaning of a legal rule or principle has to do with its normative content, that is, the capability of guiding relevant actors’ behaviour, the distinction between legal effect and normative effect may be suggested. The former indicates the capability of being legally binding over relevant actors, and as such is the attribute of instruments having the pedigree of law (or form of law); the latter refers to the 57 B Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 European Journal of International Law 23. 58 J Castañeda, Legal Effects of United Nations Resolutions (Columbia University Press, 1969) 136: ‘Many resolutions may not be susceptible to coercive application and perhaps are leges imperfectae, but they are binding to the same degree and for the same reasons as the rules of general international law.’ 59 Ibid 170 (emphasis in the original). 60 The bright line school admits that non-law may produce ‘legal effects’. 61 Nuclear Tests case (New Zealand v France) (Judgment) [1974] ICJ Rep 457, para 46: ‘It is well recognised that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding’ (emphasis added). See also para 49. 62 B Conforti, The Law and Practice of the United Nations (Kluwer, 1997); Goldmann, ‘We need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law’ (n 56), 336.

154  Rewriting the Meaning of International Law capability of affecting the meaning of legal rules. To avoid confusion on this point, such a distinction is maintained. Formative processes of international law may involve legally binding instruments as well as non-legally binding ones. The Reports of the International Law Commission, the Commentaries of the International Committee of the Red Cross, or the General Comments of UN Treaty Bodies are an example of instruments which, despite being non-legally binding, may yield normative effects on the content of international law, or in supporting that a certain rule has attained a customary nature. The capability of yielding such effects rests on the fact that they embed a normative content, namely a standard which purports to regulate or guide, authorise, prohibit, or make mandatory a conduct, and offer a reason for action.63 Nonetheless, their normative relevance cannot be diminished by rejecting them as non-law. Judicial decisions are an example of non-legally binding instruments – ie they do not produce legally binding effects beyond the parties to a dispute or to a case – which may still yield normative effects on international law, for ‘they can partake in the internationalisation of the subject matter, provide guidelines for the interpretation of other legal acts, or pave the way for further subsequent practice that may one day be taken into account for the emergence of a norm of customary international law.’64 This understanding has ensued from a shift of perspectives from rule-makers to those on rule-users, and to what extent they understand themselves constrained by those instruments. Indeed, the effects yielded by judicial decisions become visible first and foremost in later decisions insofar as the authority and persuasiveness of judicial decisions is acknowledged by later courts, in later cases. However, the earlier court may lay down prospective indications about the weight of external judicial decisions within a jurisdiction. Judicial practice has affirmed for instance that it is for a party challenging an interpretation established in a number of prior judicial decisions to prove that another court’s decision is correct, and that the chain of prior judicial decisions was mistaken. By establishing this kind of norm, a court controls the structure of legal argumentation. This norm arguably has a bearing on the stability (in some cases staticism) of interpretive outcomes.65 III.  REVISITING THE CONCEPT OF ‘UNLAWFUL COMBATANTS’

This section considers the judicial decisions which have acknowledged or made use of the notion of ‘unlawful combatant’ as a legal category. Unlike the concepts 63 N Roughan, ‘Sources and the Normativity of International Law’ in Besson and d’Aspremont (eds), The Oxford Handbook on the Sources of International Law (n 51) 680–700, 682. 64 J d’Aspremont, ‘Towards a New Theory of Sources in International Law’ in A Orford and F Hoffmann (eds), The Oxford Handbook of the Theory of International Law (Oxford University Press, 2016) 545–63. 65 In this regard, precedent has also been dealt with in terms of a procedural device. See J Bell, ‘Comparing Precedent’ (1997) 82 Cornell Law Review 1243, 1246.

Revisiting the Concept of ‘Unlawful Combatants’  155 of protected group and armed conflict, ‘unlawful combatant’ has no foundation in international legal sources, but rather emerged in national settings prompting sheer international criticism. The objective of this section is to demonstrate that the use of judicial decisions played a role in constructing this legal category at a domestic level. The expression of ‘unlawful combatants’66 has gained currency in the context of the so-called ‘war on terror’ launched by the US against Al Qaeda and the Taliban after the 9/11 attacks.67 A memorandum of the US White House issued in 2002 referred to members of Al Qaeda and the Taliban as ‘unlawful combatants’,68 who do not qualify as prisoners of war under Article 4 of the Third 1949 Geneva Convention (GCIII) or as protected civilians under Article 4 of the Fourth 1949 Geneva Convention (GCIV). The ‘new’ category supposedly mirrored the new type of conflict which the US has been confronted with since 9/11.69 In 2004, the US provided an understanding of the notion of ‘enemy combatant’ as ‘an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalitions partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.’70 Similarly, in 2002 Israel issued the Unlawful Combatants Act whereby it regulated the legal regime applying to enemy fighters apprehended in the context of the armed conflict between Israel and terrorist groups. The Israeli Imprisonment of Unlawful Combatants Act – a national statute – defines the notion of ‘unlawful combatant’ as ‘a person who took part in hostilities against the State of Israel, whether directly or indirectly, or is part of a force which commits hostilities against the State of Israel, who does not fulfil the conditions granting prisoner

66 The expression ‘unlawful combatant’ is used interchangeably with ‘enemy combatant’. The use of such expression throughout this text aims in no way to support the existence of such a category under the terms of IHL. 67 A distinction is warranted vis-à-vis the ‘war on terror’ fought by the US in Afghanistan and in Iraq. While in Afghanistan, the US treated the captured members of Al Qaeda as ‘unlawful combatants’ considering that none of the provisions of Geneva Conventions applied to Al-Qaeda, in Iraq the US recognised the application of the Geneva Conventions to individuals captured in the context of the US vs Iraq conflict. See GW Bush, Memorandum on ‘Humane treatment of Taliban and al-Qaeda detainees’, 7 February 2002, available at http://hrlibrary.umn.edu/OathBetrayed/Bush%20 2-7-02.pdf. For a comprehensive discussion on the point, see S Borrelli, ‘Casting light on the legal black hole: International law and detentions abroad in the ‘war on terror’ (2002) 87 International Review of the Red Cross 39. 68 GW Bush, Memorandum on ‘Humane treatment of Taliban and al-Qaeda detainees’ (n 67), para 2(d). 69 Indeed, the so-called ‘war on terror’ has been at the heart of heated debates in legal scholarship. See eg J Fitzpatrick, ‘Jurisdiction of military commissions and the ambiguous war on terror’ (2002) 96 American Journal of International Law 345. 70 Deputy Secretary of Defence, Memorandum for Secretaries of the Military Departments, 14 July 2006, at Enclosure 1, cited in I Venzke, ‘Legal Contestation about ‘Enemy Combatants’ – On the Exercise of Power in Legal Interpretation (2009) 5 Journal of International Law and International Relations 155, 167.

156  Rewriting the Meaning of International Law of war status in international humanitarian law, as determined in article 4 of III Geneva Convention relative to the treatment of Prisoners of War, 17 August 1949.’71 Based on this Act, an unlawful combatant may be detained if his/her release is expected to harm state security.72 Indeed, the characterisation of an individual as an ‘unlawful combatant’ carries important legal implications. For one, the detaining authorities claim that they are entitled to hold an individual in custody until the cessation of hostilities (ie of the ‘war on terror’), potentially indefinitely, without formal charges. The detention of individuals captured in connection to the ‘war on terror’,73 in custody in Guantanamo Bay, raises the profile of international criminal law, for the infringement of fundamental rights under international humanitarian law, such as humane treatment and judicial guarantees.74 In the context of international armed conflicts (IACs), international humanitarian law distinguishes between combatants and civilians.75 When doubts arise, the individual shall be considered a civilian.76 In the context of non-international armed conflicts (NIACs), individuals may qualify either as civilians or as civilians directly participating in hostilities. ‘Unlawful combatant’ is thus a category coined outside of the bounds of the Geneva law – and, indeed, in conflict with it77 – within discrete national jurisdictions.78 Under international law, the 71 Imprisonment of Unlawful Combatants Law, 5762-2002, Section  2, referred in The Public Committee against Torture in Israel & Palestinian Society for the Protection of Human Rights and the Environment v the Government of Israel et al, Israel’s High Court of Justice, Case No HCJ 769/02, 14 December 2006, para 25, available at https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/ D14F3F94989B702FC12572D80043927B. 72 A and B v Israel, Appeal Decision, Israel CrimA 6659/06, 11 June 2008. 73 The war on terror is usually characterised as an international armed conflict, thus triggering the application of the four 1949 Geneva Conventions, and Additional Protocol I when applicable. Detainees at Guantanamo apprehended in connection with the war on terror have been regarded as civilians, thus protected by the Fourth Geneva Convention. 74 Articles 27 and 37; 71-76, and 126 GCIV. Similarly, common Article 3, which is considered as a mini-convention applicable in non-international armed conflicts, and grants individuals hors de combat, including those detained, humane treatment in all circumstances. 75 Pursuant to Article 4 GCIV, the criterion of nationality determines the status as protected civilian. So in the context of the ‘war of terror’ in Afghanistan, Afghan nationals would always enjoy the protection of GCIV. In occupied territory, third country nationals are equally protected, if the country of nationality is not an ally of the occupier. As Afghanistan came under the control of the US and its allies, per Articles 49 and 76 GIV, protected civilians in occupied territory can only be detained in Afghanistan if they fall into the power of the US in Afghanistan. On the point, see M Sassoli, ‘The Status of Persons Held in Guantánamo under International Humanitarian Law’ (2004) 2 Journal of International Criminal Justice 96, 104. 76 Article 50(1) API. The Protocol has not been ratified neither by the US nor by Israel. 77 See J Pictet, H Coursier and OM Uhler (ed), Commentaries on the Geneva Conventions of 12  August 1949, Vol 4: Fourth Geneva Convention relative to the protection of civilian persons in time of war (ICRC, 1958), Article 4, p 51: ‘Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.’ 78 The US military manuals refer to ‘unlawful combatants’ synonymously with ‘illegal combatants’ to indicate non-members of armed forces of a party to the conflict, and not having the

Revisiting the Concept of ‘Unlawful Combatants’  157 category retained at best a descriptive character rather than a legal one,79 entailing the loss of protection from attack and no privilege of belligerence. Grosso modo, this descriptive notion would encompass civilians directly taking part in hostilities, and members of militias and other volunteer corps which are not part of regular armed forces, but yet belong to a party to the conflict, and do not comply with Article 4A(2) GCIII.80 Controversies about the notion of unlawful or unprivileged combatants already emerged during the negotiation process of Geneva Convention IV with regard to spies and saboteurs, which could constitute a threat to the state and yet enjoy full protection under the Fourth 1949 Geneva Convention (CGIV).81 Such a debate later resulted in the inclusion of Article 5 GCIV relating to persons not qualifying for the prisoner of war (POW) status and yet taking part in hostilities without entitlement thereto. In light of the drafting history of GCIV, it is hence untenable to argue that unlawful combatants do not fall within the scope of application of that Convention. The reference to ‘unlawful combatants’ in judicial decisions dates back to the Quirin case adjudicated by the US Supreme Court in 1942.82 The case concerned a group of ‘saboteurs’ from Nazi Germany, who arrived by submarine to the US disguised in civilian clothes and were captured by American soldiers.83 The US Supreme Court ruled as follows: The Laws of War distinguished between combatants and civilians, and between lawful combatants and unlawful ones. Lawful combatants are subject to capture and detention as POWs by the opposing military forces. Unlawful combatants are entitlement to engage in hostilities. US Army, Operational Law Handbook, JA 422, pp 18–19; US Navy, Commander’s Handbook of the Law of Naval Operations, NWP 1-14M, §12.7.1., cited in Borrelli, ‘Casting light on the legal black hole: International law and detentions abroad in the ‘war on terror’ (n 67), 47. 79 Cassese, Expert Opinion on Whether Israel’s Targeted Killings of Palestinians Terrorists is Consonant with International Humanitarian Law (Annex to the Petition in the case The Public Committee against Torture in Israel & Palestinian Society for the Protection of Human Rights and the Environment v the Government of Israel et al, (n 71), p 5; Sassoli, ‘The Status of Persons Held in Guantánamo under International Humanitarian Law’ (n 75). 80 K Dörmann, ‘The legal situation of unlawful/unprivileged combatants’ (2003) 85 International Review Red Cross 45, 47. 81 ICRC Commentaries to the Fourth Geneva Convention (n 77), Article  4, pp 52–54: ‘Some people considered that the Convention should apply without exception to all the persons to whom it referred, while to others it seemed obvious that persons guilty of violating the laws of war were not entitled to claim its benefits. These divergent views … did not arise until after the Stockholm Conference. It arose then because the Conference had adopted a definition of protected persons which covered those who committed hostile acts without being members of the regular combatant forces. (…) It is thus clear that the Draft Convention took security requirements into account and it may be wondered whether it was really necessary to resort to express derogations. It may, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting deliberately outside the laws of warfare.’ See also Dörmann, ‘The legal situation of unlawful/unprivileged combatants’ (n 80) 57–58. 82 Ex parte Quirin, 317 US 1, 30-31 (1942). 83 The case concerned the detention of saboteurs as ‘enemy combatants’, among whom Herbert Haupt, a US naturalised citizen. L Fisher, Nazi Saboteurs on Trial – A Military Tribunal & American

158  Rewriting the Meaning of International Law likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.84

As such, Quirin held that ‘unlawful combatants’ is a category recognised under the laws of war and that military tribunals could try offenders or offences against the laws of war. The notion reappeared in a number of US governmental documents concerned with the detention and interrogation regime to be applied to those enemy fighters who fell into the hands of US officials in connection with the ‘war of terror’. These documents sought to justify invoking this new category of individuals on the basis of international law. Qualifying individuals as unlawful combatants entailed their exclusion from fundamental guarantees such as habeas corpus before a court and from the substantive protection of common Article 3 of the 1949 Geneva Conventions. The US Supreme Court’s decisions in the cases Hamdi v Rumsfeld,85 Rasul v Bush,86 and Hamdan v Rumsfeld87 reiterate the use of the unlawful combatant category in the adjudication process. The case Hamdi v Rumsfeld88 concerned an American national captured in Afghanistan, who allegedly fought alongside the Taliban, and was therefore labelled ‘enemy combatant’ by the US Government. On this ground, the latter claimed that Hamdi’s indefinite detention, without formal charges or proceedings, was legally justified. In adjudicating over the authority of the Executive to detain Hamdi without the possibility to challenge the ground for such detention, the US Supreme Court held that the Executive had such authority vis-à-vis individuals qualifying as ‘enemy combatants’. The Court based its holding on ‘longstanding law-of-war principles’89 that Hamdi’s detention was ‘necessary and appropriate force’. In particular, the Court referred to a ‘universal agreement and practice’ on the point, extensively referred to Ex   parte Quirin,90 as well as to the Judgment of the IMT in Nuremberg, though indirectly. The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war’ Ex parte Quirin, 317 US, at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int.l Rev. Red Cross

Law (University Press of Kansas, 2003); M Dobbs, Saboteurs – The Nazi Raid on America (Vintage, 2005). 84 Ex parte Quirin (n 82). 85 Hamdi v Rumsfeld, 542 US (2004). 86 Rasul v Bush, 542 U.S. 466 (2004). 87 Hamdan v Rumsfeld, 548 US (2006). 88 Hamdi v Rumsfeld (n 85). 89 Ibid p 12. 90 In Ex parte Quirin, the court discussed whether Haupt, a US citizen who entered the country with the orders of the Nazis to blow up domestic war facilities, could stand a military trial.

Revisiting the Concept of ‘Unlawful Combatants’  159 571, 572 (2002) (‘[C]aptivity in war is “neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war”’ (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int.l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (‘The time has long passed when “no quarter” was the rule on the battlefield … It is now recognised that “Captivity is neither a punishment nor an act of vengeance,” but “merely a temporary detention which is devoid of all penal character.”’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’91 (…) It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 (…).92 (…) If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.93

This position is reiterated in later cases. For instance, in the Padilla v Hanft case,94 the US Court of Appeals analogised Padilla – also an American citizen apprehended in connection with the fight against the Taliban in Afghanistan – with Hamdi.95 In particular, the court considered his detention to ‘no less necessary than Hamdi’s in order to prevent his return to the battlefield’ and therefore authorised and a ‘fundamental incident to the conduct of war.’96 In Hamdan v Rumsfeld,97 reference to Quirin is reiterated.98 The case is of particular bearing, as the Supreme Court held that common Article  3 of the Geneva Conventions applies as a minimal protection to all individuals involved in a conflict ‘in the territory’ of a signatory,99 and that the ‘regular constituted court’ mentioned under the letter of that provision is to be understood as an ‘ordinary military cour[t].’100 Article 3 is further interpreted to mean that ‘at least the barest of the trial protections recognised by customary law’ is encompassed by the expression ‘all the guarantees … recognised indispensable by civilised peoples.’101 Moreover, the court considered whether the charge of conspiracy



91 Hamdi

v Rumsfeld (n 85), pp 10–11. p 12. 93 Ibid p 13. 94 Padilla v Hanft, US Court of Appeals (4th Circuit), 9 September 2005. 95 Ibid pp 8–9. 96 Ibid p 10. 97 Hamdan v Rumsfeld (n 87), pp 2–3. 98 See also US Court of Appeals, Al-Marry v Wright, 11 June 2007. 99 Hamdan v Rumsfeld (n 87), p 6. 100 Ibid p 7. 101 Ibid p 8. 92 Ibid

160  Rewriting the Meaning of International Law was a recognised violation of the laws of war and held that neither the Geneva Conventions, nor the Hague Regulations mention such a term. What is more, other international law sources including the International Military Tribunal at Nuremberg ‘pointedly refused to recognise conspiracy to commit war crimes’ as a violation of the laws of war.102 In 2006 the Tel-Aviv District Court in the case Israel v Iad and Saadi affirmed that the status of unlawful combatant was not a new creation of Israeli national courts but the result of developments in international law practice.103 Indeed, the decisions of courts in Israel dealing with the issue of unlawful combatants often appeal to an evolutive interpretation of relevant provisions of international humanitarian law to face a supposedly ‘new’ reality.104 Interestingly, the Tel-Aviv District Court refers to Quirin v US (1942)105 and Hamdi v Rumsfeld (2004) in its legal argumentation. In the case A and B v Israel (2008),106 the Israeli Supreme Court was confronted with questions as to the interpretation of the Imprisonment of Unlawful Combatants Law (2002), the constitutionality of measures provided by the statute, and on the compatibility of that national law with international humanitarian law. In particular, the court cited scholarly authorities alongside the Hamdi case, discussed above: Even where we are concerned with civilians who are detained during an armed conflict, international humanitarian law provides that the rule is that they should be released from detention immediately after the specific ground for the detention has elapsed and no later than the date when the hostilities end (see J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vol. 1, 2005), at page 451; also see and cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), at pages 518–519, where the United States Supreme Court held that the detention of members of forces hostile to the United States and operating against it in Afghanistan until the end of the specific dispute that led to their arrest is consistent with basic and fundamental principles of the laws of war.107

Importantly, when scrutinising the case law dealing with unlawful combatants’ regime, certain judicial decisions Quirin (1942), Hamdi (2004) and Hamdan (2006) routinely emerge from judicial citation practice.

102 Ibid. 103 Israel v Iad and Saadi, Release Request to the Tel-Aviv District Court, Case No 90512/06, 19 July 2006, p 25 (Oxford Reports on International Law, ILDC 464 (IL 2006)). 104 Ibid p 26. 105 The cited excerpt from Quirin, in its original language, is the following: ‘By universal agreement and practice, the laws of war draw a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are like wise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunal for acts which render their belligerency unlawful.’ 106 A and B v Israel (n 72). 107 Ibid para 46.

Managing the Flow of Arguments through Epistemic Superiority  161 IV.  MANAGING THE FLOW OF ARGUMENTS THROUGH EPISTEMIC SUPERIORITY

From a doctrinal point of view, it appears uncontroversial that national decisions on points of international law may be regarded as an expression of states’ opinio juris,108 as evidence of state practice109 or, more generically, as contributing to the formation of customary international law.110 However, the extent to which they are deemed as ‘endowed with sufficient uniformity and authority’, ‘sufficiently consistent’,111 or ‘persuasive authority’ is a matter subjected to the later judges’ appreciation. These criteria have been determined by international judicial decisions,112 and are conducive to a consistent understanding of the legal and normative significance of national judicial decisions for interpreting international law. In the framework of citation as evidence of what is sanctioned as correct among the volume of judicial decisions by a plurality of courts, a point that deserves attention is whether national and international judicial decisions have been perceived as qualitatively different by later courts. Put it differently, have national decisions on points of international criminal law been treated as less authoritative than international ones? To be sure, the question here is not how international criminal tribunals have interpreted the terms ‘sufficient’ or ‘persuasive’. The point is rather to consider whether international criminal tribunals have regarded national and international judicial decisions as comparably authoritative when adjudicating international criminal law. This would flow from the fact that both stem from judicial institutions regarded as authoritative within their respective legal orders (jura novit curia). However, several international judicial decisions reflect the view that international courts and tribunals bear an epistemic superiority as compared to national counterparts. In the Kupreskić case recalled earlier, the ICTY Trial Chamber considered that ‘… generally speaking decisions of national courts on war crimes or crimes against humanity delivered on the basis of national legislation would carry relatively less weight.’113 This position is justified on the basis that 108 H Lauterpacht, The Development of International Law by the International Court (reprint, Cambridge University Press 1996) 20. 109 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgement) [2002] ICJ Rep 3, para 58. 110 Certain German Interests in Polish Upper Silesia (Germany v Poland) (Merits) [1926] PCIJ Rep Series A No 7, p 19; The Case of the SS ‘Lotus’ (France v Turkey) (Merits) [1927] PCIJ Rep Series A No 10, p 18, pp 23–29: ICJ, North Sea Continental Shelf cases (n 6), paras 75–82. 111 Fisheries case (n 5), p 131; Prosecutor v Erdemović (Judgment, Joint and Separate Opinion of Judge McDonald and Judge Vohrah) ICTY-96-22-A (7 October 1997), para 55. 112 Arrest Warrant case (n 109), para 58; Certain German Interests in Polish Upper Silesia (n 110), p 19; SS Lotus case (n 110), pp 23-29; North Sea Continental Shelf cases (n 6), paras 75-82; Fisheries case (n 5), p 131; Erdemović Joint and Separate Opinion of Judge McDonald and Judge Vohrah (n 111), para 55. 113 Prosecutor v Kupreskić (Judgment) ICTY-95-16-T (14 January 2000), paras 541–42.

162  Rewriting the Meaning of International Law ‘[national courts] tend to apply national law, or primarily that law, or else interpret international rules through the prism of national legislation.’114 Indeed, a way in which international tribunals have justified favouring international judicial decisions over national ones on points of international law is through the applied formal legal sources. A good illustration thereof is provided by the ICTY in Tadić citing the Barbie case, adjudicated by the French Court of Cassation.115 The case concerned allegations of crimes against humanity committed by Klaus Barbie, head of the Gestapo of Lyon during World War II, against ‘innocent Jews’, as opposed to individuals who were members, or thought to be members, of the Resistance movement. In order to determine the meaning of ‘civilian’ in the context of charges for crimes against humanity committed, by definition, against ‘any civilian population’, the ICTY Trial Chamber116 relied on the Barbie case to affirm that ‘… according to the Cour de Cassation, not only was the general population considered to be one of a civilian character despite the presence of Resistance members in its midst but members of the Resistance themselves could be considered victims of crimes against humanity if the other requisite elements are met.’117 The ICTY Trial Chamber finally agreed with the finding of the Barbie case on the notion of ‘civilian’, notwithstanding the remarks that the Court of Cassation formally applied national law. Yet the fact that the French court formally applied domestic law appears detrimental to the potential reach of the case beyond its national contours. 642. While instructive, it should be noted that the court in the Barbie case was applying national legislation that declared crimes against humanity not subject to statutory limitation, although the national legislation defined crimes against humanity by reference to the United Nations resolution of 13 February 1946, which referred back to the Nürnberg Charter (law of 26 December 1964); and the fact that a crime against humanity is an international crime was relied upon to deny the accused’s appeal on the bases of disguised extradition and an elapsed statute of limitations.118 643. Despite the limitations inherent in the use of these various sources, from Common Article  3 to the Barbie case, a wide definition of civilian population, as supported by these sources, is justified. Thus the presence of those actively involved in the conflict should not prevent the characterisation of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity.119

114 Ibid paras 541–42. 115 Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v Barbie, French Court of Cassation (Chambre criminelle), Case No 85-95166, Judgment of 20 December 1985. 116 Prosecutor v Tadić (Judgment) ICTY-94-1-T (7 May 1997), para 636 et seq. 117 Ibid para 641. 118 Ibid paras 641–42 (emphasis added). 119 Ibid para 643.

Managing the Flow of Arguments through Epistemic Superiority  163 In Furundžija, the caveat concerning the authority of national judicial decisions for international law was reiterated.120 In the case, the Defendant was charged with aiding and abetting torture and outrages upon personal dignity, including rape. The ICTY Trial Chamber was to define the notion of ‘aiding and abetting’, in particular if the presence of the Defendant in the location where the alleged crimes were committed was sufficient to prove the actus reus. As no treaty law addressed the matter, the Chamber turned to customary international law.121 Notably, the Chamber turns to the examination of the statutes of previously established international criminal tribunals. This methodological step does not follow straightforward from the intention to examine customary international law on the matter. 193. Little light is shed on the definition of aiding and abetting by the international instruments providing for major war trials: the London Agreement, the Charter of the International Military Tribunal for the Far East, establishing the Tokyo Tribunal, and Control Council Law No. 10. It therefore becomes necessary to examine the case law. 194. For a correct appraisal of this case law, it is important to bear in mind, with each of the cases to be examined, the forum in which the case was heard, as well as the law applied, as these factors determine its authoritative value. In addition, one should constantly be mindful of the need for great caution in using national case law for the purpose of determining whether customary rules of international criminal law have evolved in a particular matter. (…) 196. The Trial Chamber will also rely on case law from the British military courts for the trials of war criminals, whose jurisdiction was based on the Royal Warrant of 14 June 1945, which provided that the rules of procedure to be applied were those of domestic military courts, unless otherwise specified. In fact, unless otherwise provided, the law applied was domestic, thus rendering the pronouncements of the British courts less helpful in establishing rules of international law on this issue. However, there is sufficient similarity between the law applied in the British cases and under Control Council Law No. 10 for these cases to merit consideration. The British cases deal with forms of complicity analogous to that alleged in the present case. The term used to describe those liable as accomplices (in killing) is that they were ‘concerned in the killing’.122

The conclusions on the definition of aiding and abetting deserve attention. The Chamber considers manifold German cases heard under Control Council Law No 10, either by the German Supreme Court in the British Occupied Zone, or

120 Prosecutor v Furundžija (Judgment) ICTY-95-17/1-T (10 December 1998). See also Erdemović Joint and Separate Opinion of Judge McDonald and Judge Vohrah (n 111), para 52: ‘We would note in addition that the above mentioned cases were decisions of national military tribunals or national courts which applied national law, not international law.’ 121 Furundžija Trial Judgment (n 120), para 191. 122 Ibid paras 193–94 and 196.

164  Rewriting the Meaning of International Law by German courts in the French Occupied Zone are also material to the Trial Chamber’s analysis. As Control Council Law No 10 was considered as a secondary legislation derived from the London Agreement, these proceedings were regarded more authoritative under the profile of international law. From these cases, the ICTY Trial Chamber inferred the existence of a rule of customary international law: 232. On the issue of the nature of assistance rendered, the German cases suggest that the assistance given by an accomplice need not be tangible and can consist of moral support in certain circumstances. (…) This is supported by the provisions of the International Law Commission Draft Code. In view of this, the Trial Chamber believes the use of the term ‘direct’ in qualifying the proximity of the assistance and the principal act to be misleading as it may imply that assistance needs to be tangible, or to have a causal effect on the crime. This may explain why the word ‘direct’ was not used in the Rome Statute’s provision on aiding and abetting. 233. (…) The suggestion made in the Einsatzgruppen and Zyklon B cases is that the relationship between the acts of the accomplice and of the principal must be such that the acts of the accomplice make a significant difference to the commission of the criminal act by the principal. Having a role in a system without influence would not be enough to attract criminal responsibility, as demonstrated by the case of the defendant Ruehl in the Einsatzgruppen case. This interpretation is supported by the German cases cited. 234. The position under customary international law seems therefore to be best reflected in the proposition that the assistance must have a substantial effect on the commission of the crime. This is the position adopted by the Trial Chamber. 235. In sum, the Trial Chamber holds that the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.

Thus, the interpretation of aiding and abetting provided by the so-called German cases pursuant Control Council Law No 10, and confirmed by a nonlegally binding document – the 1996 Draft Code of Crimes Against the Peace and Security of Mankind adopted by the International Law Commission (ILC Draft Code)123 – were considered authoritative and regarded by the ICTY Trial Chamber as reflecting customary international law on the matter. This ascertainment of customary international law appears methodologically un-orthodox. Rather than relying on an analysis of consistent and uniform state practice from the majority of states underpinned by evidence of opinio juris, it instead followed the judicial decisions of proceeding initiated in Germany Occupied Zones under Control Council Law No 10, corroborated by the ILC Draft Code.

123 For a discussion on the legal relevance of the ILC Draft Code, see Furundžija Trial Judgment (n 120), para 227.

Managing the Flow of Arguments through Epistemic Superiority  165 This interpretation of ‘aiding and abetting’ is reiterated in a number of later cases,124 including Kayishema and Ruzindana:125 200. It is not presupposed that the accused must be present at the scene of the crime, nor that his contribution be a direct one. That is to say, in light of the decision rendered in the Furundžjia Judgement and the jurisprudence set out therein, the role of the individual in the commission of the offence need not always be a tangible one. This is particularly pertinent where the accused is charged with the ‘aiding’ or ‘­abetting’ of a crime. In Furundžija it was held, ‘… an approving spectator who is held in such respect by the other perpetrators that his presence encourages them in their conduct, may be guilty of complicity in a crime against humanity.’ 201. This Chamber concurs. The presence of such a spectator need not be a conditio sine qua non for the principal. Therefore, subject to the caveat that the accused knew the effect that his presence would have, he may be found responsible under Article 6(1) for such a contribution to the commission of any of the offences specified in the Tribunal’s Statute.126

Likewise, in Prosecutor v Furundžija,127 the ICTY Trial Chamber was to answer the question whether or not the prohibition of torture attained the status of a customary norm of international law. The question offered the Chamber the opportunity to review the finding of the Colombian Constitutional Court about an issue of international law, namely the crystallisation of the 1949 Geneva Conventions and of the two 1977 Additional Protocols into customary international law.128 After recalling relevant conventional instruments as well as national law in force in the Federal Republic of Yugoslavia which proscribed torture,129 the Chamber in passing contends: The Trial Chamber does not need to determine whether the Geneva Conventions and the Additional Protocols passed into customary law in their entirety, as was recently held by the Constitutional Court of Colombia, or whether, as seems more plausible, only the most important provisions of these treaties have acquired the status of general international law.130 124 Prosecutor v Blaskić (Judgment) ICTY-95-14-A (29 July 2004), paras 46-50; Prosecutor v Brđanin (Judgment) ICTY-99-36-A (3 April 2007), paras 273–74; Prosecutor v Orić (Judgment) ICTY-03-68-A (3 July 2008), para  43; Prosecutor v Kalimanzira (Judgment) ICTR-05-88-A (20  October 2010), paras 74–75 and 86–87. 125 Prosecutor v Kayishema and Ruzindana (Judgment) ICTR-95-1-T (21 May 1999). 126 Ibid paras 200–01. From the point of view of the use of prior judicial decisions, an interesting discussion is the one relating to the notion of ‘aiding and abetting’, contrasting the requirements of the ‘substantial effect’ and ‘specific direction’. See Prosecutor v Perišić (Judgment) ICTY-04-81-A (28  February 2013), paras  25–36; Prosecutor v Taylor (Judgment) SCSL-03-01-A (26 September 2013); Prosecutor v Šainović et al (Judgment) ICTY-05-87-A (23 January 2014), paras 1627–1642. This is, however, beyond the scope of this section. 127 Furundžija Trial Judgment (n 120). 128 In the case Prosecutor v Ramalingam/ Liberation Tigers of Tamil Eelam (LTTE), the Dutch Court corroborates this finding, maintaining that APII has assumed the character of customary international law. See Prosecutor v Ramalingam/ Liberation Tigers of Tamil Eelam (LTTE), The Hague District Court, Judgment Case Nr BU9716, 21 October 2011. 129 Ibid paras 134–136. 130 Ibid para 137.

166  Rewriting the Meaning of International Law In a similar vein, in the Tadić decision on jurisdiction,131 the ICTY Appeals Chamber refers to the Danish case Prosecution v Refik Sarić for the purposes of clarifying whether the notion of grave breaches of the 1949 Geneva Conventions may extend beyond the context of international armed conflicts.132 The Chamber was already clear on the answer to this question, namely that the notion of grave breaches and the obligations stemming therefrom upon states only apply in the context of international armed conflicts.133 However, the Chamber refers to contra evidence, with the purpose of underscoring elements of state practice which would potentially allow applying the notion of grave breaches and the obligations of states attached thereto, regardless of the nature of the conflict.134 However, we are aware that this conclusion may appear not to be consonant with recent trends of both States practice and the whole doctrine of human rights, … which tend to blur in many respects the traditional dichotomy between international law and civil strife. In this connection the Chamber notes with satisfaction the statement in the amicus curiae brief of the Government of the U.S. [which] provides the first indication of a possible change in the opinio juris of States. (…) Other elements pointing in the same direction can be found in the provisions of the German Military Manual whereby grave breaches of international humanitarian law include some violations of common Article 3. (…) On can also mention a recent judgment of a Danish Court. On 25 November 1994 the Third Chamber of the Eastern Division of the Danish High Court delivered a judgment on a person accused of crimes committed together with a number of Croatian military police on 5 August 1993 in the Croatian prison camp of Dretelj in Bosnia (The Prosecution v. Refik Saric, unpublished (Den.H. Ct. 1994). The Court explicitly acted on the basis of the ‘grave breaches’ provisions of the Geneva Conventions … without however raising the preliminary question of whether the alleged offenses had occurred within the framework of an international rather than an internal armed conflict. (…) This judgment indicates that some national courts are also taking the view that the ‘grave breaches’ system may operate regardless of whether the armed conflict is international or internal.135

From a legal vantage point, this overview may resemble an attempt to reconstrue a rule of customary international law through elements of state practice and opinio juris. The Danish case Prosecution v Refik Sarić is indeed regarded as an element of state practice of the same strength of the US statement and of the relevant provisions of the German Military Manual. However, this would have been germane, had the Chamber not yet determined the issue ab initio. What seems a plausible reading of the Chamber’s methodology is instead that the Danish judicial decision is invoked to show, and possibly promote, a progressive approach to interpreting the notion of grave breaches.136 131 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 20). 132 Ibid para 83. 133 Ibid para 80. 134 Ibid para 83. 135 Ibid para 83. 136 L Lo Giacco, ‘Swinging between Finding and Justification: Judicial Citation and International Law-Making’ (2017) 6 Cambridge International Law Journal 27, 37.

Managing the Flow of Arguments through Epistemic Superiority  167 The overview of these judicial decisions helps shed some light on the authority that international criminal tribunals have ascribed to national judicial decisions, as well as on the conditions under which they have been regarded as authoritative in the adjudication of international criminal law. What ensues is that international criminal tribunals have formulated reasons for downplaying the authority of national courts while interpreting international criminal law. Admittedly, this rests on the fact that national courts typically apply national law and national rules of interpretation and, as such, their findings cannot be ipso facto transposed in the adjudication process of international criminal law. Thus, national judicial decisions which apply international law may arguably be regarded as more authoritative than those applying national law to interpret international criminal law issues. These contentions, deducible from the case law of international criminal tribunals, add on to the jigsaw of norms that international judicial decisions have formulated to manage the flow of arguments in the practice of international criminal law. Pronouncements of international criminal tribunals restraining or conditioning the authority of national courts’ pronouncements have been accompanied by the recognition by national jurisdictions of the authority of international courts and tribunals on points of international criminal law. It is worth repeating the passage of the Canadian Court in the Musegera case, cited earlier in this work: Since Finta [R v Finta, [1994] 1 SCR 701, pertaining to crimes against humanity committed during WWII by a military commander in Hungary] was rendered in 1994, a vast body of international jurisprudence has emerged from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the ICTR. These tribunals have generated a unique body of authority which cogently reviews the sources, evolution and application of customary international law. Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions, such as ss. 7(3.76) and 7(3.77) of the Criminal Code, which expressly incorporate customary international law. Therefore, to the extent that Finta is in need of clarification and does not accord with the jurisprudence of the ICTY and the ICTR, it warrants reconsideration.137

Still, the municipal decisions of a single State cannot per se create a rule of international law; rather ‘concordant decisions in pari materia on the part of courts of several states participate in the formation of a customary rule of international law.’138 Although national courts have engaged with the interpretation of international law and even identified the existence of customary international law, their 137 Mugesera v Canada (Minister of Citizenship and Immigration), Canada Supreme Court [2005] 2 SCR 100, 2005 SCC 40, para 126. For further examples of deference to the case law of international criminal tribunals by domestic courts deciding on point on international criminal law, see ch 4. 138 Ibid para 85.

168  Rewriting the Meaning of International Law authority does not seem upheld by the international criminal tribunal reviewing it. In light of the above, both international and national courts seem to converge in the appreciation that international criminal tribunals are more authoritative in pronouncing on points of international criminal law. The implication of this convergence is straightforward and rests, on the one hand, with what courts understand as being the principal authority to pronounce on international criminal law; on the other, with what is arguably regarded as a more persuasive argument of justification in international criminal law. V.  JUDICIAL DECISIONS AS ‘PERSUASIVE AUTHORITY’

Notions of binding precedent and ‘persuasive authority’ in international criminal law echo comparative and legal philosophical discussions about the use of precedents in national legal orders. More precisely, legal comparatists have inquired into the differences and similarities in the use of prior judicial decisions in common law and civil law countries for decades; legal philosophers and legal theorists have conceptualised different degrees of force yielded by prior judicial decisions on later judicial practice. A landmark contribution to these questions was offered by the scholars of the Bielefelder Kreis, who provided a thorough analysis on the use of precedent in ten different countries, from the perspective of practical reason and discourse.139 They claimed that the distinction between civil and common law countries – the latter being typically associated with a precedent-based law and the application of the stare decisis principle – is made less neat by a convergent use of precedents.140 Both systems resort to judicial decisions in the adjudication of cases; yet a different weight may be allocated to them. The Bielefelder Kreis classified the relevance of judicial decisions according to four categories: (i) formal bindingness, when a judicial decision is unlawful and subject to reversal on appeal if it does not follow a relevant precedent; (ii) de facto persuasive force, when a judgment not respecting a precedent’s force 139 The Bielefelder Kreis (literarally, the circle of Bielefeld) is the name of a group of scholars from ten different countries, including Neil MacCormick, Robert Summers, Robert Alexy, Svein Eng, Gunnar Bergholtz, Aleksander Peczenik, Michele Taruffo, Zenon Bankowski, Aulis Aarnio, Massimo La Torre, among others. Under the auspices of the University of Bielefeld in Germany, the group gathered to produce two major edited collections, namely N MacCormick and R Summers (eds), Interpreting Statutes – A Comparative Study (Aldershot, 1991); and N MacCormick and R Summers (eds), Interpreting Precedents – A Comparative Study (Ashgate, 1997). See also S Eng, The Doctrine of Precedent in English and Norwegian Law – Some Common and Specific Features (Tidskrift for Rettsvitenskap Foundation, 1993). 140 MacCormick and Summers (eds), Interpreting Precedents (n 139); K Zweigert and H Kötz, Introduction to Comparative Law, 3rd edn (Oxford University Press, 1998); M Taruffo, Precedente e giurisprudenza (Editoriale scientifica, 2007); OA German, Präjudisien als Rechtsquelle – Eine Studie zu den Methoden der Rechtsfindung (Almqvist & Wiksell, 1960); Bell, ‘Comparing Precedent’ (n  65); Z Li, ‘Innovation Through Interpretation: How Judges Make Policy in China’ (2018) 26 Tulane Journal of International and Comparative Law 327.

Judicial Decisions as ‘Persuasive Authority’  169 is lawful, although subjected to criticism on this ground; (iii) complementary justificatory force, when subsequent decisions could be better justified if they invoked precedents; (iv) mere illustration141 or other, when precedents are used as an example in subsequent decisions.142 This typology illuminates the variety of effects ascribed to judicial decisions, underscoring that their relevance is more nuanced than monolithic, spanning from being formally binding to being wielded as illustrative instruments, if not mere ornaments. Yet, as noted by Neil Duxbury, ‘the reasons for following precedents are, like precedents themselves, always defeasible’.143 Even though categories identified in comparative legal studies may find a parallel in the judicial practice of international criminal law, an important caveat needs to be spelled out. Comparative legal studies on precedent are concerned first and foremost with comparing the use of precedents made by discrete national legal orders within their own judicial order. In international criminal law, the use of judicial decisions concerns instead a plurality of international judicial institutions adjudicating crimes under international law, which are formally disentangled, insular, ‘inward-looking monads’,144 and whose judicial decisions have formally no bearing on each other. Two situations warrant a distinction. The first situation is characterised by a hierarchical structure between higher and lower courts. This is typical of chambers operating within the same jurisdiction and that are hence hierarchically organised. As expressly acknowledged by the international judge, in this situation the judicial decisions of appeals chambers are binding upon trial chambers. Higher courts’ judicial decisions upon lower courts may be termed ‘vertical precedent’.145 The second situation is instead characterised by the absence of hierarchical structure between different chambers, courts and jurisdictions. This also pertains to the relevance of judicial decisions for the court issuing them (ie a court vis-à-vis its own jurisprudence). In this situation, the horizontal dimension rather than the vertical one is in focus. Far from being binding, judicial decisions have been described as having ‘at best persuasive authority’.146

141 These are also called precedents ab exemplo. 142 N MacCormick and R Summers, ‘Appendix: Final Version of the Common Questions, Comparative Legal Precedent Study, September 1994’ in MacCormick and Summers (eds), Interpreting Precedents (n 139) 551–62, 554–55. See also A Pezcenik, ‘The Binding Force of Precedent’ in MacCormick and Summers (eds), Interpreting Precedents (n 139) 461–80, 463. 143 N Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2008) 30. 144 In the Matter of El Sayed (Decision on Appeal of the Pre-Trial Judge’s Order Regarding Jurisdiction and Standing) STL CH/AC/2010/02 (10 November 2010), para 41, recalled earlier. 145 M Taruffo, ‘Dimensioni del precedente giudiziario’ (1994) 48 Rivista trimestrale di diritto e procedura civile 411, 416. 146 The expression ‘persuasive authority’ has been considered problematic, for it associates the notion of authority, which by definition does not need to convince to be abided by, with the notion of persuasiveness, which is content-based. See eg I Venzke, ‘Semantic Authority, Legal Change and the Dynamics of International Law’ (2015) 12 No Foundations 1, 11ff. The point is discussed later in this chapter.

170  Rewriting the Meaning of International Law As such, these situations shed light on at least two types of effect which courts have ascribed to judicial decisions: the force binding upon lower courts to follow higher courts’ decisions; and the force as persuasive authority, which may constrain later judicial decisions. Importantly, while the former is derived from the hierarchical institutional structure of a judicial order, the latter seemingly draws from substantive features of prior judicial decisions, such as the soundness of legal reasoning, the persuasiveness of reasons for an interpretation over another plausible one, etc.147 For instance, as illustrated by the ICTR in Semanza148 and in Karemera et al,149 reasons of legal stability, certainty and predictability have been regarded as persuasive in legal argumentation. The expressions ‘de facto persuasive force’150 and ‘not formally binding but having force’151 are alternatives to the notion of ‘persuasive authority’ used in the ad hoc tribunals’ jurisprudence. As stressed in the literature, the notion of ‘persuasive authority’ attracts some criticism,152 since ‘being persuaded is fundamentally different from doing, believing, or deciding something because of the prescriptions or conclusions of an authority’.153 Whenever an international court interprets a rule of international law, it generates interpretive utterances of the law. To think of those utterances in terms of ‘persuasive authority’ would be self-contradictory because, on the one hand, persuasiveness would point to the capability of the utterances to induce or convince; on the other hand, authority would rest with the judge who pronounced those utterances. The concept of authority, like other concepts in law, is easier to think about than to write about. To start with, the term authority is commonly used in English to indicate doctrinal opinions, jurisprudence, and other documents which support a certain interpretation, stance, or position. The judge, like the scholar, may invoke authorities to support his/her findings. In this case, the term ‘authorities’ is synonymous with supportive instruments, and may be used in the plural (‘authorities’) to point to such supportive material. A more complex notion of authority, which also underpins the notion of authorities as supportive instruments, is not declinable in the plural. This notion is philosophically rich and hard to define. HLA Hart referred to authority as a content-independent concept in that it attracts adherence to – for instance – an utterance, because of the position of the one who pronounces it, irrespective 147 Cf Pezcenik, ‘The Binding Force of Precedent’ in MacCormick and Summers (eds) (n 142) 461–80, 467. 148 Prosecutor v Semanza (Decision) ICTR-97-23-A (1 June 2000), para 92. 149 ICTR, Prosecutor v Karemera et al (Judgment) ICTR-98-44-A (29 September 2014), para 52. 150 Pezcenik, ‘The Binding Force of Precedent’ in MacCormick and Summers (eds) (n 142) 461–80, 463. 151 N MacCormick and R Summers, ‘Appendix: Final Version of the Common Questions, Comparative Legal Precedent Study, September 1994’ in MacCormick and Summers (eds) (n 142) 551–62, 554–55. 152 N Duxbury, ‘The Law of the Land’ (2015) 78 Modern Law Review 26, 29; Venzke, ‘Semantic Authority, Legal Change and the Dynamics of International Law’ (n 146) 11. 153 F Schauer, ‘Authority and Authorities’ (2008) 94 Virginia Law Review 1931, 1934.

Judicial Decisions as ‘Persuasive Authority’  171 of whether the content of that utterance is agreeable.154 What is material to determine who or what has authority is not a matter of merits, but rather one of origin.155 Authority is thus understood as deriving from features, such as position, mandate, competence, etc. It follows that juxtaposing ‘authority’, which attracts adherence regardless of the merits of an utterance, with ‘persuasive’, which attracts adherence based on the substantive arguments put forward to convince, would appear an oxymoron. An authority is followed, without needing to convince.156 Authority may also be understood as ‘deference entitlement’, entailing that relevant actors voluntarily submit to an authority,157 like the authority of a court. The critical word here is voluntarily since it presupposes that the actor submits to the authority of a court, because he/she recognises its authority. In this case, it may be envisaged that the court has offered good reasons to defer to its authority. Yet the court, which arguably bears authority within a legal order on account of its position, competence, mandate, needs to provide reasons for its decisions. This helps elucidate why other courts, even outside a narrow jurisdiction, should follow the same reasoning. Further, authority may be conceived in terms of status to determine reasons for action.158 Returning to the notion of ‘persuasive authority’, it appears clear by now that understanding ‘persuasive’ as capable of convincing on the basis of substantive reasons, and authority as the capacity to be followed irrespective of substantive reasons, raises some conceptual controversies. A possible remedy hinges on understanding persuasive authority as opposed to mandatory authority,159 and focuses on the influence they have on the scope of the court’s discretion. While mandatory authority significantly constrains the scope of judicial discretion, persuasive authority does not, as it entails voluntary submission to the authority of a court based on substantive reasons adduced. A distinction needs to be drawn at this point. As we have seen, authority may be understood as deriving from characteristics pertaining to position, competence, mandate, presupposed training, which induce one to trust that the authority should be followed. This notion of authority is better understood 154 HLA Hart ‘Legal and Moral Obligation’ in AI Melden (ed), Essays on Moral Philosophy (University of Washington Press, 1958) 82-107; see also HLA Hart, Essays on Bentham (Oxford University Press, 1982), 254; J Raz, The Morality of Freedom (Clarendon Press, 1986), 35-37. See also F Schauer, ‘Authority and Authorities’ (n 153) 1935; I Venzke, ‘Semantic Authority, Legal Change and the Dynamics of International Law’ (n 146) 11–12. 155 Schauer, ‘Authority and Authorities’ (n 153), 1936. 156 This notion of authority is suggested, inter alios, by Hannah Arendt. See H Arendt, Between Past and Future (Viking Press, 1961). Arendt’s concept of authority does not depend on coercion or persuasion. It rests instead on a shared system of political beliefs, especially devotion to tradition. 157 M Barnett and M Finnemore, Rules for the World: International Organizations in Global Politics (Cornell University Press, 2004) 5. On the point, see F Zarbiyev, ‘Saying Credibly What the Law Is: On Marks of Authority in International Law’ (2018) 9 Journal of International Dispute Settlement 291, 293–97. 158 Schauer, ‘Authority and Authorities’ (n 153) 1939. 159 Ibid 1945.

172  Rewriting the Meaning of International Law against the background of social practice. In fact, even though courts are authoritative interpreters of the law, this does not mean that what courts say will not be subjected to the scrutiny of later courts confronted with like cases. In this vein, the following has been argued with respect to the ICJ, which is certainly regarded as an authoritative court within the international legal discourse: [T]he Court’s influence on the process of legal development is interstitial. It no doubt has a chance to influence the law through its decisions, but its influence is limited in time. Once it has rendered its decisions, the case – and with it the legal issues that it had raised – is out of the Court’s hands. Nothing prevents other actors from ignoring, overruling, or limiting the impact of the Court’s contribution. ICJ decisions are not per se relevant contributions to the process of legal development, but only to the extent that they are acceptable to the international legal community. Outside the bounds of Article 59 of the Statute, their authority is persuasive only. And so they must ‘persuade’.160

This passage is eloquent for it underscores that developments of international law do not occur in a single instance. The issuance of a judicial decision determines at best the availability of a new argument: whether it is to be considered correct or even the most correct one depends on the acceptance by an audience. Thus, actors operating on the international law plane, would have to signal acceptance and support of that decision for it to become a reference point that orients later practice. In the field of international criminal law, courts have been playing an important role in validating certain judicial decisions as a reference point in the international criminal law practice, by way of iterative citation. Put differently, within a system, the authority ‘does not rest on individual choices but on a belief system that socially sanctions it.’161 Hence, an authority is authoritative because it has been accepted as such. This notion coheres well with an understanding of legal argumentation in which the correctness of argumentative structures depends on their acceptance by an audience of relevant actors. Judicial decisions may thus be understood as authoritative precedents, ie having authority, when they are binding on lower courts within a jurisdiction, regardless of their merits. However, this authority is not absolute. Departure by lower courts on the basis of good reasons (eg ‘in the interests of justice’) would still be possible in later cases.162 Judicial decisions may also be followed because

160 C Tams and A Tzanakopoulos, ‘The ICJ as an Agent of Legal Development’ (2010) 23 Leiden journal of International Law 781, 785 (emphasis added). 161 Zarbiyev, ‘Saying Credibly What the Law Is: On Marks of Authority in International Law’ (n 157) 296. 162 Plainly, this excludes situations in which an appeals chamber issues an appeal decision trumping that of a lower chamber in the same case. National courts reports signal that lower courts are more inclined to follow appeal decisions as a matter of justice rather than hierarchical structure.

Authoritative Statements as Knowledge on International Criminal Law  173 of the persuasiveness of their merits, as well as because of the authority socially ascribed to the judicial institution issuing those decisions. This may for instance explain why national courts adjudicating on points of international criminal law (see eg the notion of protected group in genocide cases) would turn to judicial decisions delivered by international courts and tribunals to find the correct interpretation of an international criminal law notion.163 Whilst persuasiveness of judicial decisions depends on their merits – ie logical-deductive process of law application, legal arguments, and reason for action – authority designates the capability of attracting adherence to certain legal interpretations by relevant legal actors, including on ascribed competence.164 Thus, a judicial decision has authority and can yield effects if it can generate acceptance of its findings by other courts. A parallel distinction hinges on the judicial decision as arguments from authority, constraining the discretion of lower courts, and arguments from reason controlling the rationality in legal argumentation.165 VI.  AUTHORITATIVE STATEMENTS AS KNOWLEDGE ON INTERNATIONAL CRIMINAL LAW

Practitioners need to skilfully master the tools of argumentative practice if they want to succeed in their claims, and, in the case of judges, adjudicate legal matters by using persuasive arguments, vis-à-vis an audience of relevant actors. For instance, in order for judicial decisions on points of international criminal law to be perceived as correct, the interpretation may be justified by reference to the rules of interpretation codified in the VCLT, relevant international rules and principles of international criminal law, and relevant case law. This is corroborated by the judicial decisions of international criminal tribunals mentioned above,166 assessing the weight of national courts decisions in light of the law applied. As such, legal argumentation relies on knowledge and learning.167 In this perspective, it probably does not raise much surprise nor controversy that in international criminal law, international criminal courts have been regarded

See eg M  Troper and C Grzegorczyk, ‘Precedent in France’ in MacCormick and Summers (eds), Interpreting Precedents (n 139) 103–40, 120. 163 See ch 3. 164 Cf A Nollkaemper, National Courts and International Rule of Law (Oxford University Press, 2011) 246: ‘A decision has authority to the extent that it can generate acceptance of its decisions as dispositive by other relevant actors …’; S Besson, ‘The Authority of International Law – Lifting the State Veil’ (2009) 31 Sydney Law Review 343; P Glenn, ‘Persuasive Authority’ (1986) 32 McGill Law Journal 261. 165 L Moral Soriano, ‘The Use of Precedents as Arguments of Authority, Arguments ab exemplo, and Arguments of Reason in Civil Law Systems’ (1998) 11 Ratio Juris 90, 92–93. 166 See eg Tadić Trial Judgment (n 116); Furundžija Trial Judgment (n 120). 167 N MacCormick, Rhetoric and the Rule of Law – A Theory of Legal Reasoning (Oxford University Press, 2005) 14.

174  Rewriting the Meaning of International Law as more authoritative than national ones, because of the expertise international courts have of the field on international criminal law. Understanding international criminal law as a learned profession may prove helpful to reflecting on a twofold implication. First, citation practice may be appraised through the lens of knowledge production and dissemination, insofar as judges interpreting international criminal law clarify its meaning, ascertain the existence of legal rules, validate reasons for action, through their judicial pronouncements. Secondly, understanding certain courts as more authoritative than others significantly impinges on who gets to produce such a body of knowledge in international criminal law. In fact, international judicial decisions are more likely to be invoked than national courts, to justify findings in international law, and thus to draw ‘correct solutions’ to legal problems. Knowledge lends itself to different conceptualisations.168 A common distinction in epistemology is the one between knowledge-that (or propositional knowledge) and knowledge-how (know-how, ‘techne’).169 The former indicates knowledge that a fact is true, and the latter knowledge about how to do something. Friedrich Kratochwil delves more extensively into the question of what is produced by knowledge, and contends that the role of norms is conditioned by the knowledge about the world we live and which we experience as reality.170 Kratochwil distinguishes the world of observational facts (eg physics), in which norms may be transposed in mathematical formulas and data are subjected to measurement; the world of intention and meaning (eg social sciences and meaningful action), in which parameters of action are reconstructed through the meaningful interactions between relevant social actors;171 and the world of institutional facts (eg a chess game), in which the explanation of certain observable practice depends on the knowledge of the rule-structure.172 Using different conceptions of knowledge may help make sense of certain facts, which might be crucial for one type of knowledge and overlooked by another. Such a ‘learned profession’ articulates itself within disciplinary boundaries, which limit and, at the same time, allow the claim of knowledge of the discipline.173 Similarly, as authority is determined by position, conferred

168 The question of the existence of a legal knowledge, from a jurisprudential point of view, has been dealt with by Neil MacCormick. See N MacCormick, ‘On Analytical Jurisprudence’ in MacCormick and Weinberger (eds), An Institutional Theory of Law (n 28) 93–109, 95–97. 169 J Fantl, ‘Knowledge How’ in EN Zalta (ed), Stanford Encyclopedia of Philosophy, online edn (2012). 170 FV Kratochwil, Rules, Norms, and Decisions (Cambridge University Press, 1989) 21. 171 Ibid 24. Kratochwil makes ample reference to the work of Max Weber. See M Weber, Wirtschaft und Gesellschaft, ch 1, sec 10, translation by HP Secher, Basic Concepts in Sociology by Max Weber (Citadel Press, 1962) 39, 56. 172 Kratochwil, Rules, Norms, and Decisions (n 170) 26. 173 FV Kratochwil, ‘How Do Norms Matter?’ in M Byers (ed), The Role of Law in International Politics – Essays in International Relations and International Law (Oxford University Press, 2000) 35–68, 35.

Authoritative Statements as Knowledge on International Criminal Law  175 competence, mandate, it could be inferred that authority is predicated upon a field of specialised knowledge, which may be termed ‘expertise’. Thus, international criminal tribunals are regarded as authoritative in interpreting international criminal law, because they are specialised judicial institutions operating in a delineated disciplinary field, in which they may be considered ‘experts’.174 David Kennedy provides a critical view of knowledge and expertise used to assert authority and power. ‘Experts’ act by articulation and assertions which are ‘performative’.175 This means that an utterance is capable of producing effects by simply having been asserted.176 Similarly, Pierre Bourdieu points out that this performative power is a special attribute of judges and judicial decisions, projecting different world-views.177 In light of this, it can be inferred that experts master a certain knowledge which produces certain world-images, and that courts are capable of expressing performative assertions (via judicial decisions), and hence of creating a certain reality by simply affirming it. This activity goes far beyond pronouncing what the law is and may be rather seen as a conceptual endeavour meant to influence the way relevant actors think about international law. A more articulated perspective on the role of knowledge and expertise as a basis for authority is offered by Sigrid Quack.178 Quack unfolds her arguments in the context of a transnational governance setting, characterized by the interaction of a plurality of actors, and multiple regulatory instruments over overlapping fields, which lack clear hierarchies.179 The terrain Quack tackles shares some similarity with the area of international criminal law as described thus far. A useful distinction Quack makes is that between epistemic authority on the one hand, and governance authority on the other. While the former depends on theoretical knowledge, the latter refers instead to having ‘a privileged voice in transnational rule-making and implementation’.180 Plainly, both national and international courts have epistemic knowledge, in the sense that they master the law and its interpretative instruments. However, as we have seen earlier, international criminal courts have advanced claims of epistemic knowledge based on the specific international legal competence of their

174 Field specialisation appears as a condition propaedeutic to claims of knowledge and authority. The question of field specialisation and claims of expertise has been discussed by, inter alios, D Kennedy, A World of Struggle – How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press, 2016). 175 Ibid 144 and 136. 176 John Austin used performative as a special linguistic capacity (particularly inherent in the law) that makes things by simply saying them. JL Austin, How To Do Things with Words (Clarendon, 1962). 177 Bourdieu, ‘The Force of Law: Towards a Sociology of the Juridical Field’ (n 2) 823 and 828. 178 S Quack, ’Expertise and authority in transnational governance’ in R Cotterrell and M Del Mar (eds), Authority in Transnational Legal Theory – Theorising Across Disciplines (Elgar, 2019) 361–403. 179 Ibid 362. 180 Ibid 363.

176  Rewriting the Meaning of International Law professionals, in addition to claims of governance authority, by laying down norms to govern situations of increased complexity and uncertainty. Via claims to epistemic knowledge, these norms have to some extent institutionalized the primacy of international judicial decisions over national ones on points of international criminal law, which falls within the remit of monopolistic strategies aiming at gaining ‘an exclusive expert status for a knowledge elite … that foster closure towards the outside.’181



181 Ibid

372.

6 Rethinking the Judicialisation Era

T

he preceding chapters have shown how the growing number of ­judicial decisions has normalised courts’ resort thereto in legal justification. It has also illustrated how such practice has enabled some argumentative practices to become constitutive of international law. Building on the relevance ascribed by courts to prior judicial decisions, the present chapter critically reflects on the iterative use of judicial decisions as an avenue of international criminal law formation and on the implications for the nature and character of international law. In so doing, it revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the ‘judicialisation turn’ on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions. I.  STRUCTURAL CHANGES IN INTERNATIONAL LEGAL ARGUMENTATION

In adjudicating international criminal law, judges apply and interpret the applicable law to material facts and draw inferences from premises according to rules of deductive logic. Those inferences are arguably better justified if it can be shown that a court is following prior judicial decisions as evidence of ‘what is good in action’. As such, two planes shall be distinguished: that of formal correctness in inferring conclusions that coherently flow from certain premises; secondly, the dimension of persuasion, hinging on the strength of arguments chosen by the judge to justify a specific decision in law. While the former is concerned with whether the inference of conclusions from premises is formally correct, the latter is concerned with the extent to which the proposed arguments are convincing. Judges’ inference of conclusions from premises and their justification by way of arguments and reasons for action may be termed argumentative structure.1 An argumentative structure, being the product of a rational decision-making process, is typically characterised by coherence between premises and conclusions. In addition, since the process engages justification, consistency may 1 The expression can also be found in J d’Aspremont, ‘If International Judges Say So, It Must Be True: Empiricism or Fetishism?’ (2015) 4 ESIL Reflections 1.

178  Rethinking the Judicialisation Era arguably pertain to the legal arguments, which are advocated to justify a certain interpretation.2 A formative process of international law may thus be described as the way in which courts rationally infer conclusions from premises in a way that is considered coherent, and justify this process by adducing arguments in a consistent manner. The reiteration of these argumentative structures may reasonably induce later courts to deem that this is the correct way of reasoning and that, based on that, they should follow prior judicial decisions. To illustrate, a court may justify its interpretation of a treaty provision by reference to the rules of the 1969 Vienna Convention on the Law of Treaties, and offer a reason for action as to why an interpretation is preferable over another plausible one, for instance, because driven by ‘elementary considerations of humanity and common sense’.3 While legal arguments find their basis in international law, a reason for action may hinge on what judges deem more appropriate, given the characteristics of a legal order or of a branch of international law. In other words, a reason for action seemingly stems from judges’ axiological preferences, according to which courses of action are also determined.4 An example in kind is offered by the Furundžija case, in which the ICTY Trial Chamber considered that the newly expressed ‘general principle of respect of human dignity’, authorising the broadening of the definition of rape, would outweigh the principle of legality. 193. … the general principle of respect for human dignity is the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person. 194. (…) Moreover any such concern is amply outweighed by the fundamental principle of protecting human dignity, a principle which favours broadening the definition of rape.5

Plainly, in privileging the respect of human dignity over the principle of legality as ‘the very raison d’être’ of international law at large, the ICTY enables such a

2 Neil MacCormick emphasises that every justification must fulfil criteria of universality and generality, underpinned by the notions of consistency and coherence. See N MacCormick, Legal Reasoning and Legal Theory (Oxford University Press, 1978) 100. Aleksander Peczenik associates consistency with rationality and defines it as ‘a necessary condition of coherence’. See A Peczenik, ‘Coherence, Truth and Rightness in the Law – Essays in Epistemology, Hermeneutics and Jurisprudence’ in P Nerhot (ed), Law, Interpretation and Reality (Kluwer, 1990) 275–309, 275. 3 Prosecutor v Tadić (Decision on the Defence Motion on Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995) para 119. 4 As recalled earlier, reasons for action hinge on fundamental aspects of the law. See A Aarnio, Reasons and Authority – A Treatise on the Dynamic Paradigm of Legal Dogmatics (Ashgate, 1997) 54–55. 5 Prosecutor v Furundžija (Judgment) ICTY-95-17/1-T (10 December 1998), paras 183–84.

Structural Changes in International Legal Argumentation  179 reason to enter the spectrum of possible legal arguments, and to condition later courts’ practices. A similar argumentative structure can be traced back to the Tadić Interlocutory Appeal on Jurisdiction, in which the Appeals Chamber found that serious violations of common Article 3 of the 1949 Geneva Conventions, and other serious violations of the laws and customs of war applicable in noninternational armed conflicts, engage the criminal responsibility of individuals under international law. The finding is ground-breaking as it asserts for the first time that serious violations of international humanitarian law may amount to war crimes, even when committed in non-international armed conflicts. In order to determine whether individuals are criminally liable under international law, the Appeals Chamber relied on the findings of the International Military Tribunal in Nuremberg. 128. (…) It is true that, for example, common Article 3 of the Geneva Conventions contains no explicit reference to criminal liability for violation of its provisions. Faced with similar claims with respect to the various agreements and conventions that formed the basis of its jurisdiction, the International Military Tribunal at Nuremberg concluded that a finding of government officials and international organisations, as well as punishment of violations by national courts and military tribunals (id., at 445-47, 467). Where these conditions are met, individuals must be held criminally responsible, because, as the Nuremberg Tribunal concluded: ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’ (id., at 447.) 129. Applying the foregoing criteria to the violations at issue here, we have no doubt that they entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts. Principles and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognised as the mandatory minimum for conduct in armed conflicts of any kind. No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition. (…) 134. (…) customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.6

Three steps are crucial in the Chamber’s reasoning. First, the issue before the bench is whether violations of common Article  3 of the Geneva Conventions engage the responsibility of the perpetrators under international law. The provision is silent on this point. Secondly, the Chamber turns to the principle

6 Tadić Decision on Interlocutory Appeal on Jurisdiction (n 3), paras  128–29, 134 (emphasis added).

180  Rethinking the Judicialisation Era according to which individuals are to be held responsible for enforcing international obligations and not creating situations of impunity, declared by the Nuremberg Tribunal. This principle generically pertains to the responsibility of individuals, not only of states, under international law. Thirdly, the Chamber applies the principle to violations of common Article 3, appealing to ‘elementary considerations of humanity [which are] widely recognised as the mandatory minimum for conduct in armed conflicts of any kind,’ and common sense for the gravity of the acts at issue and ‘the interest of the international community in their prohibition.’ Hence, the pronouncement of the IMT in Nuremberg is stretched to affirm not only that individuals may be held criminally responsible for violations of international law, but that such responsibility may be triggered by serious violations of international humanitarian law committed in noninternational armed conflicts. In fact, the Tadić Interlocutory Appeal and not the Judgment in Nuremberg lies at the basis of the legal rule that the nature of the conflict is not material for war crimes to be proved. The Tadić Trial Judgment – unsurprisingly, given the judicial vertical structure – reiterates this finding by reference to the Appeals Chamber: 613. Finally, in relation to the fourth requirement, namely that the rule of customary international humanitarian law imposes individual criminal responsibility, the Appeals Chamber held in the Appeals Chamber Decision that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.7

The same citation is reproduced in the Akayesu,8 Musema,9 Delalić et al,10 Kayishema and Ruzindana,11 and Rutaganda12 judgments. In particular, the Trial Chamber in Musema found the case law regarding the principle of individual criminal responsibility to be ‘sufficiently established’ and applicable in the case.13 The fact that a repertoire of judicial decisions is made available may translate in the ease of the court to turn to prior judicial decisions as arguments to justify its findings. Judicial decisions are central instruments, in that they bear argumentative structures that can be easily replicated in later decisions. Stretching this argument further, the quantitative increase of judicial decisions in legal practice may be seen through the lens of a progressive transition from a syllogistic-deductive structure to a topical structure in legal argumentation,14

7 Prosecutor

v Tadić (Judgment) ICTY-94-I-T (7 May 1997), para 613. v Akayesu (Judgment) ICTR-96-4-T (2 September 1998), paras 612–15. 9 Prosecutor v Musema (Judgment) ICTR-96-13-T (27 January 2000). 10 Prosecutor v Delalić et al (Judgment) ICTY-96-21-A (20 February 2001). 11 Prosecutor v Kayshema and Ruzindana (Judgment) ICTR-95-1-T (21 May 1999). 12 Prosecutor v Rutaganda (Judgment) ICTR-96-3-T (6 December 1999). 13 Musema Trial Judgment (n 9), para 113. 14 M Taruffo, Precedente e giurisprudenza (Editoriale scientifica, 2007) 9. 8 Prosecutor

Judicial Decisions as Epistemic Tools  181 in which judicial decisions represent geographical points orienting legal interpretation.15 The advent of public databases gathering and displaying judicial decisions by topic, and even storing them by relevant excerpts, reinforces the idea that judicial decisions indeed offer a vocabulary of arguments accepted as correct in the practice of international law and which may confine a court when justifying a decision.16 Topics are conducive for the international legal system to consolidate around settled reference points, which may be identified with, among other things, precedents in international criminal law. Such practices emphasise the rhetorical dimension of international law interpretation, rather than a deductive or axiomatic one.17 Judicial decisions enshrine argumentative structures, which have been accepted as persuasive by other courts, including national ones, and can thus be regarded, in this purview, as successful justificatory means in legal argumentation. II.  JUDICIAL DECISIONS AS EPISTEMIC TOOLS IN THE ARGUMENTATION OF INTERNATIONAL LAW

As international law is essentially a justificatory practice, persuasive arguments are those that have been sanctioned as correct argumentative structures by earlier courts, as evidenced in prior judicial decisions. In the practice of international law, judicial decisions have been approached as epistemic tools in international law, showing correct solutions and persuasive argumentative structures to legal questions. As such, it is not unusual to find reference to the Tadić case, in a case relating to the characterisation of an armed conflict, to the Nicaragua case in a dispute relating to the use of force, or to the Barcelona Traction case to claim the existence of erga omnes obligations, in that the normative force of this technique vests judicial decisions with an aura of doxa. Judicial decisions contribute to assembling a body of knowledge about what international criminal law is and of what its rules mean. This is particularly cogent in the field of international criminal law which has greatly developed precisely through judicial decisions. In this regard, citation as a technique provides correct arguments, embedding a reason for action, and it dispels the

15 ‘Topos’, from the ancient Greek, literally refers to the place, or the ‘region’, which offers relevant arguments (topics) in favour of a thesis. The notion of ‘topoi’ is pivotal in modern theories of rhetoric of an Aristotelian hue. See T Viehweg, Topics and Law: A Contribution to Basic Research in Law (Peter Lang, 1993). 16 It is relevant to observe in this regard that the closure of the ICTY has brought about the creation of a case law database by the newly established International Residual Mechanism for Criminal Tribunals (MICT). This database gathers the case law of the ad hoc tribunals, classified by notion. Judicial decisions are shown in relevant excerpts and maxims. Cf http://cld.irmct.org/?q=en/cases/ ictr-icty-case-law-database. 17 Viehweg, Topics and Law (n 15) xxi.

182  Rethinking the Judicialisation Era question of what is out there and how we know it.18 Citation helps lawyers become cognisant of judicial decisions, even when they are merely used for an illustrative purpose. Citation therefore plays a gatekeeper role towards what becomes available, or more visible, to the practice of international criminal law. In the debate about knowledge dissemination, citation can thus be seen as a technique used to convey knowledge about the international criminal law, or to select the knowledge to be conveyed. In other words, the body of judicial decisions available for consideration in a legal field represents an ‘accumulation of knowledge from the past.’19 Citation is a forceful technique used to attract adherence to reiterated legal findings, interpretations, views, opinions. Citing judicial decisions, often in their relevant maxims or excerpts, thus constitutes the distinctive technique whereby legal knowledge has been conveyed, disseminated, and passed over to future generations of lawyers. Citing decisions allows knowledge to be transmitted and disseminated throughout different jurisdictions. This is in fact one of the typical ways in which legal practitioners become cognisant of more and less remote jurisdictions. One such example is offered by the Furundžija case20 referred to earlier in this work, in which the ICTY Trial Chamber incidentally scrutinised the findings of the Constitutional Court of Colombia, purporting the customary character of the Geneva Conventions and Additional Protocols in their entirety. The Trial Chamber does not need to determine whether the Geneva Conventions and the Additional Protocols passed into customary law in their entirety, as was recently held by the Constitutional Court of Colombia, or whether, as seems more plausible, only the most important provisions of these treaties have acquired the status of general international law.21

As we have seen, the practice of international and domestic courts has produced norms of argumentation, which have sanctioned the epistemic superiority of international courts and tribunals over national ones. Based on the authority allocated to them within the international legal order and to the institutionalised character of judicial deliberations,22 international courts identify the existence of legal rules, refine their content, and thus convey a certain understanding of international law. As such, judicial decisions of international criminal courts may arguably be regarded as expressions of knowledge about international criminal law, more specifically about the rules and methods of interpretation, relevant applicable international legal instruments, relevant prior case law, 18 Cf L Boer, International Law As We Know It – Cyberwar Discourse and the Construction of Knowledge in International Legal Scholarship (PhD Dissertation, defended on 3 April 2017 at Vrije Universiteit Amsterdam). 19 N MacCormick and R Summers, ‘Introduction’ in N MacCormick and R Summers (eds), Interpreting Precedents – A Comparative Study (Ashgate, 1997) 1–16, 1. 20 Ch 3. 21 Prosecutor v Furundžija (Judgment) ICTY-95-17/1-T (10 December 1998), para 137. 22 On the latter point, see R Alexy, A Theory of Legal Argumentation (Oxford University Press, 1989 – reprinted 2010) 211.

Reassessing the Role of Judicial Decisions  183 about the techniques of legal argumentation, etc. From this standpoint, citation of judicial decisions is the technique through which such knowledge is disseminated and reiterated. Understanding international judicial decisions as more authoritative than those of national courts has had significant implications for the knowledge produced in and about international criminal law. In particular through legal interpretation, understood as encompassing a measure of discretion, knowledge has been shaped by judges’ reasons for action, namely a choice which, although justified in law, yet corresponds to a particular normative conception of international criminal law.23 Thus, a court may favour the understanding of international criminal law as a system in which legal stability, certainty, and predictability are treated as values; or rather as system in which ‘principles of humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent.’24 By repetition, this particular conception of one court may turn into the view of many courts, as much as the opinion of a single authoritative scholar may become the dominant view in legal scholarship.25 The increasing topical character of international criminal law argumentation, that is, the congruous reliance on judicial decisions to justify findings in international law, underscores the crucial importance that international courts have played and continue to play in international criminal law, and possibly international law at large. More precisely, the scrutiny of judicial decisions in international criminal law adjudication has shown that the principled use of those decisions around norms of argumentation has had the effect of stabilising interpretive outcomes. This has led to an interesting ambivalent result. On the one hand, judges enjoy discretion, hence a certain margin of manoeuvring in interpreting international criminal law; on the other hand, their decisions not only channel court’s later decisions, but also their own. Judicial decisionmaking is then articulated in the twilight of discretion and constraint, in that prior decisions reduce that measure of choice. III.  REASSESSING THE ROLE OF JUDICIAL DECISIONS IN INTERNATIONAL LAW: A RETROSPECTIVE

The exercise of judicial discretion is the beating heart of international law-making. Though conferred by an establishing authority, the confines of discretion are 23 Realising this range of possible choices prompted an association of the judicial activity with an image of gouvernement des juges, exercising their discretion in a way that essentially reflects a normative stance. See T Kleinlein, ‘Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law’ (2012) 81 Nordic Journal of International Law 79, 106. 24 Prosecutor v Kupreskić (Judgment) ICTY-95-16-T (14 January 2000), para 527. 25 With regard to this specific point, the coupling of judicial decisions and the teachings of the most highly qualified scholars under Article 38(1)(d) of the ICJ Statute could not prove more appropriate.

184  Rethinking the Judicialisation Era rather obscure, as the scope of discretion is in itself interpretative. To illustrate, let us imagine that an international court is entrusted with the interpretation of international criminal law in an international legal order, and that, as such, this court is authoritative based on its position, competence, mandate, etc. Seised with a dispute or a case, the international court exercises its discretion within the limits provided by the law. The scope of discretion is subject to the interpretation of the court, which justifies such interpretation by way of legal arguments. Now, a skilful legal practitioner would be able to justify by way of legal arguments its interpretation of the law, to present his/her choice of reason for action as the most appropriate one, to formulate obiter regarding the function of international criminal law in the international legal order, and so on. As such, judicial discretion may be conceived as a potentially unrestrained power, administered by the court itself, although in principle confined within the bounds of the law.26 As the creative power of the judge rests with his/her discretion, judicial decisions are the instruments through which such creative power navigates through the practices of international law. As demonstrated in the course of this inquiry,27 through an exercise of discretion, courts have determined who bears the ‘burden of justification’ to depart from an ‘established jurisprudence’, whether such a departure is justified; that the condition of ‘cogent reasons’ allows departure from ‘established jurisprudence’; that higher chambers’ decisions are binding upon lower chambers, etc. At the same time, judicial decisions are also the most tangible evidence of how discretion has been exercised in prior cases. This ambivalence of judicial decisions as embedding and constraining the creativity of judicial interpretation has indeed been crucial for the present analysis. However, even if courts issue judicial decisions which are authoritative statements of the law because of their being vested with an authority in a legal order, this does not mean that anything goes, that is to say that anything can become an authoritative interpretation of the law. How has it then been possible to discern exercises of judicial discretion, which are regarded as in conformity with the law from those which are not? In order to answer this question, I contended that, since the practice of international criminal law is not centralised but diffused, acceptance of judicial decisions by relevant actors is an important step in the formation of the law, that is, in terms of what relevant actors understand the law to be (both in form and content). It is not for an individual judicial decision to singlehandedly form international law. The formation of international law is a process which involves a plurality of actors. Thus, the acceptance of certain legal holdings by relevant actors determines the threshold by which departure from prior judicial decisions becomes difficult, and those holdings become reference points for international legal practice, sanctioned by a tradition of social acceptance. However, legal



26 See

‘rule-bound justification’ discussed in ch 2, section II.A. in particular, ch 2, section III, and ch 5.

27 See,

Reassessing the Role of Judicial Decisions  185 interpretation has been conceptualised as ‘an act of authority dependent on its ability to induce acceptance by way of argument or persuasion.’28 This comes with a hurdle, in that acceptance determines authority, but authority induces acceptance. In other terms, it is not clear whether it is the acceptance of the act of interpretation to determine its authority, or the authority to determine its acceptance. To overcome this circularity, one may submit to a notion of authority, which is constituted and constitutive of acceptance. Accordingly, authority may be conceptualised as depending on the institutional position of a court in a legal order, which determines its acceptance, as well as on social acceptance, which stems from the social understanding of its authority within a society. Courts in different jurisdictions may accept findings of prior judicial decisions, because, for instance, they recognise the authority of the ICTY in defining what an armed conflict is; but also because they recognise that an interpretation is persuasive in its legal arguments and reason for action. Such a case would presuppose that courts do not submit ipso facto to the authoritative statements of the law of the ICTY, but rather evaluate the substance of its judicial decisions. Acceptance becomes visible, among other things, through the expressed citation of judicial decisions and, as such, the technique of citing prior judicial decisions based on their authoritativeness and/or persuasiveness can be seen as an avenue of law formation. Citation practices presuppose an element of repetition, or reiteration, of judicial decisions. This aspect has been surfaced in the previous sections when reference was made to the reproduction of argumentative structures over time. This has invited an approach which zeroes in on the effects of regularities in practice and which is primarily interpretive of the practice at stake, and descriptive of its normative outcomes.29 The repetition of judicial decisions over time may be observed through the prism of social acceptance, inducing later courts to submit to the authority of those judicial decisions, because they understand those decisions to be a correct statement of the law. A consistent line of cases (‘established jurisprudence’, jurisprudence constante, or jurisprudence by inertia), in which different jurisdictions converge towards same substantive holdings, supports the fact that the arguments adduced in prior decisions are accepted as correct. Judicial decisions are powerful tools in the argumentative practice of international criminal law 28 J d’Aspremont, ‘The Multidimensional Process of Interpretation: Content-Determination and Law-Ascertainment Distinguished’ in A Bianchi, D Peat, and M Windsor (eds), Interpretaton in International Law (Oxford University Press, 2015) 111–132, 115; G Hernández, ‘Interpretation’ in J Kammerhofer and J d’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, 2014) 317–48. 29 J von H Holtermann and MR Madsen, ‘What is Empirical in Empirical Studies of Law? A  European New Legal Realist Conception’ (2016) 4 Retfaerd 3, 6. Ota Weinberger refers to the notion of ‘nomological statement’ defined as ‘an empirically motivated and empirically confirmed positing of essential relations among states of objects (or of systems) …’. See O Weinberger, ‘Facts and Fact-Description – A Logical and Methodological Reflection on the Basic Problem for the Social Sciences’ in N MacCormick and O Weinberger (eds), An Institutional Theory of Law – New Approaches to Legal Positivism (Springer, 1986) 77–92, 81.

186  Rethinking the Judicialisation Era in that they are used as a source of justification. Repetition of judicial decisions allows the content of those decisions to be perceived as the correct interpretation of the law, and stabilise the practice of international criminal law around these points of reference. As the use of heterogenic judicial decisions is not regulated in international law, this entails that the normative effects produced by their reiteration in the argumentative practice of international criminal law are not regulated either, but come about as a fluid phenomenon that draws its strength precisely from not being imbued in formal procedures. Citation of judicial decisions is thus a subtle technique to craft international criminal law which has already influenced, and continues to influence, the understanding of international criminal law and the way international lawyers think of the function of this branch of law in the context of public international law. The role of the acceptance appears decisive in cases where competing interpretive statements by courts are available. When provided with two equally authoritative international courts that laid down two diverging judicial decisions, the choice between the two is socially determined.30 This entails that subsequent judicial decisions may decide which of the two to follow, based on the justification (including reasons for action) put forward. The citation of one decision over the other by courts would provide evidence of acceptance of the content of the cited judicial decision. Citing judicial decisions in international criminal law adjudication is common practice among both international and national courts adjudicating on points of international criminal law. The judicial citation practices scrutinised have been rationalised according to two models: the incrementalist model, whereby later courts have converged towards prior interpretive outcomes to incrementally, and interstitially, fine-tune the meaning and content of interpreted legal rules, and stabilised a certain course of action; and the revisionist model, whereby later courts have disregarded prior judicial decisions to depart from a prior course of action. Two incommensurable positions may stem from the incrementalist and revisionist models: a perfect alignment, epitomised by the iterative verbatim citation of Tadić in interpretive practices on points of armed conflict; and a radical departure, where judicial practices have undertaken a course of action, which may be seen to conflict with applicable international law, as in the case of ‘unlawful combatant’. Interestingly, even in the latter case, courts have cited judicial decisions and drawn upon international law to justify such departures. As such, prior judicial decisions have offered a reason to follow a prior course of action, and can also justify departure therefrom. Citing judicial decisions can therefore structure legal argumentation around a reason for action. The examination of the expressed reference to judicial decisions from an argumentative standpoint has demonstrated that courts have been able to 30 A pertinent illustration is offered by the divergency between the ICTY and the ICJ concerning the test to apply for the conduct of organised armed groups to be attributable to a state. On the point, see ch 5, section I.

Reassessing the Role of Judicial Decisions  187 stabilise interpretive outcomes, by formulating norms and reasons for action, thus contributing to the formation of the meaning of international law. In turn, this demonstrates that legal reasoning is no less constitutive of international law than its prescriptive formulations. In particular, courts’ creation of norms has been subtle and hinged on three main levels.31 First, in interpreting international criminal law, international courts have created norms, in the form of ‘tests’. For instance, in the context of genocide, international judicial decisions have established that a mixed test of both objective and subjective criteria shall be used to identify a protected group.32 Similarly, in the context of war crimes, international judicial decisions have established that the ‘overall control test’ shall be used – notably instead of the ‘effective control test’ – to attribute the conduct of organised armed groups to a state, in the context of classifying an armed conflict.33 The formulation of such tests has influenced and continues to influence how crimes are adjudicated, as a different test (eg a more stringent one) might have made it harder to prove a constitutive element of the crime, namely the existence of an armed conflict. Setting forth a test enables a court to widen its scope of discretion, in the face of rigid posited legal definitions, as shown in the case of genocide. Secondly, in interpreting international criminal law, international courts have expressed reasons for action, which influence the way in which future cases are adjudicated based on the choice of a course of action operated in earlier decisions. Reasons for action expressed by international criminal jurisdictions have been varied and encompassed legal stability, predictability and formal justice, as well as ‘humanity considerations and common sense’.34 The basis for these reasons for action cannot always be inferred from the legal rule that the court has interpreted. For instance, ‘humanity considerations’ might be constructed based on the Martens clause,35 which is considered to be customary; however, reasons of legal predictability and stability may rather be traced back to the idea of international law a court has and the function it ascribes to it. This reason, though legitimate, stems from judges’ axiological preferences vis-à-vis the function of international criminal law and of their own judicial function within the legal system. The latter aspect has emerged in the discussion on different approaches to interpretation.36 Such reasons for action have allowed concepts like ‘common sense’ to attain a legal connotation, and to become part of the argumentative practice of international criminal law. Through reiteration, such a reason becomes ingrained in the interpretation of international criminal law. Citation is thus an avenue of law-making which displays its creative power 31 Three levels have been identified by the present work. Nevertheless, this does not exclude the possibility that courts may contribute to international law-making at different additional levels. 32 Ch 4, section II.A. 33 See ch 4, section IV. 34 See ch 2, section II.A. 35 See Preamble to the 1899 Hague Convention. 36 Ch 2.

188  Rethinking the Judicialisation Era through legal argumentation, in that the iterative use of judicial decisions signals the acceptance of those norm-descriptive statements as correct, and hence what we understand international criminal law to be. Thirdly, international criminal jurisdictions have laid down norms of argumentation, thus establishing rules on the burden of justification (ie that the later court has the burden to show that there is a more correct interpretation, and that the prior court was mistaken, or that a later court should not depart from ‘established jurisprudence’). These norms have allowed the interpretive choices in prior judicial decisions to become stable, and to render departure from them difficult. These norms not only constrain courts in later cases, but self-constrain the court itself that has laid them down. Such constraint arguably influences the discretion of later courts, whose measure of interpretive choices is limited by earlier cases. This shall be, however, mitigated by the fact that courts may interpret a case as being different from a prior case, or as entailing compelling reasons for departing from the ‘established jurisprudence’, as long as these decisions may be legally justified.37 As part of the norms of argumentation put forward by international criminal tribunals, international judicial decisions have downplayed the weight of national courts’ decisions on points of international criminal law, pointing to the fact that international judicial decisions, applying international law and its rules of interpretation, should be regarded as more authoritative than national ones.38 Interestingly enough, this has been claimed by the ICTY even if it then substantively followed the interpretation provided by prior national judicial decisions. International courts have been at the forefront in articulating the meaning of rules in international criminal law and in underscoring courses of action that could be justified by way of legal arguments. In doing so, international courts have created an inventory of arguments which, as authoritatively pronounced by international courts, may be used as justificatory instruments in later judicial practices. Zooming in on the courts’ perceived relevance of prior judicial decisions through their norm-descriptive statements has led to some surprising findings. International courts have repeatedly reaffirmed the adage according to which judicial decisions are not sources of law and are at best ‘persuasive authority’. National courts have been prone to turn to judicial decisions to find ‘correct interpretations’ to legal rules. Both international and national jurisdictions have ascribed authority to prior judicial decisions in pari materia. This transcended the legal traditions of single national jurisdictions.

37 To these three levels, one could add a fourth, traditionally underscored by the literature on judicial law-making, namely the determination of existing rules of international law. This process of rule-ascertainment has first and foremost involved rules of customary international law, often identified using criteria other than consistent, uniform practice of the majority of states and opinio juris (ie the criteria elucidated by the ICJ jurisprudence). 38 Ch 4, section IV.

The Way Forward: A Prospective  189 Given the authority of courts in the practice of international law, their normdescriptive statements, when socially accepted as correct, yielded normative effects because they were understood as correct epistemic tools. No claim to truth is made in this scholarly inquiry. Given the authority of courts in a legal order, such statements about the law may be indeed be perceived as the (true) law by the audience. As such, these statements would yield their effects as if they were norm-expressive propositions. There are two key benefits of conceptualising judicial citation as a formative avenue of international criminal law. First, if the correctness of an interpretation is determined not only according to a logical-deductive dimension, but also by the persuasive strength of its arguments, then citation of judicial decisions would underscore the social acceptance of a judicial decision as a correct interpretation of the law. This harmonises with an understanding of international law made by a plurality of actors, and diminishes the view that international law may be singlehandedly made by the lone judge. The second benefit of such conceptualisation rests with the dynamic perspective that it is able to capture. If correctness is a belief sanctioned by later courts, it can be observed retrospectively through the interplay between prior and subsequent judicial decisions, rather than in discrete creative moments. The social acceptance of judicial decisions would evidence the belief of such correctness. As the meaning of international law rules is not autonomous from its interpretive practices, social acceptance is essential for what international legal rules are understood to mean, and how prior interpretations have been justified. Acceptance becomes visible, among other things, through citation of judicial decisions, which are offered and accepted as correct, as the reason for action whereby a court justifies an interpretive outcome is ultimately what will orient later courts to follow prior decisions; or what will show them why a legal matter ought to be decided in one way or another. As such, courts appear to use norm-descriptive statements of the law as if they were norm-expressive ones. Citation validates acceptance, and becomes evidence of a belief when a regular reiteration of certain judicial decisions renders them reference points in the argumentative practice of international criminal law. IV.  THE WAY FORWARD: A PROSPECTIVE

This inquiry has approached judicial decisions as arguments in legal argumentation, exerting their force as epistemic tools in the practice of law as a learned profession. The practice of using judicial decisions has emphasised the topical nature of international criminal law, based on judicial decisions accepted as correct argumentative structures, rather than stressing the logical-deductive dimension of the process to assign meaning to posited legal rules. As such, the unprecedented production of judicial decisions has normalised the resort to them as arguments in legal justification to the point that in certain areas of

190  Rethinking the Judicialisation Era international criminal law the interpretation of primary legal sources has been supplanted by the invocation of prior judicial decisions as shortcuts to finding correct solutions to legal interpretive problems. This has led to understanding norm-descriptive statements of the law, expressed by international courts, as epistemic tools to cognise international law. Notwithstanding, there are still areas – eg international space law – in which judicial decisions have been scant or absent, which has made alternative ways of legal interpretation dominant in lieu of international adjudication. At this point, one might wonder whether the above-mentioned findings are context-specific, hence limited to the ambit of international criminal law, or whether they could potentially be generalised to other fields of international law. Two points are in order here. First, international criminal law has chiefly developed though judicial decisions and it could therefore have been anticipated that judicial decisions played a significant role in shaping international criminal law rules. However, this does not invalidate the results of this research concerning the citation of judicial decisions. It only makes international criminal law a more suitable candidate, given the abundance of judicial decisions. The added value of this work does not lie in its claiming that courts make law, but in substantiating the claim of how the iterative citation of judicial decisions has played out as a formative avenue of international criminal law, accounting for the plurality of the judicial actors involved and the dynamism of it as a process. Secondly, although the convergence of judicial decisions towards prior interpretive outcomes may be justified by reference to the principle of legality, which is of fundamental importance in every criminal justice system, the norms of argumentation leading to the stabilisation of interpretive outcomes are not confined to the field of international criminal law solely. A cursory inquiry shows that similar norms have been formulated by the International Court of Justice,39 European Court of Human Rights,40 and by the WTO Appellate Body,41 among others.

39 See eg Case of the Readaptation of the Mavrommatis Jerusalem Concessions (Greece v Britain) (Judgment) [1927] PCIJ Rep, Series A No 11, para 43: ‘the Court sees no reason to depart from a construction which clearly flows from previous judgments the reasoning of which is still regards as sound.’ 40 See eg ECtHR, Christine Goodwin v UK, Judgment of 11 July 2002, 35 EHRR 18, para  74: ‘While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I, para 70)’. Similarly, see Mamatkulov and Askarov v Turkey, Judgment of 4 February 2005, 41 EHRR 25, para 121; Vilho Eskelinen and Others v Finland, Application No 63235/00, Judgment of 19 April 2007, para 56. On this point, see A Mowbray, ‘An Examination of the European Court of Human Right’s Approach to Overruling its Previous Case Law’ (2009) 9 Human Rights Law Review 179. 41 See eg Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8 10 and 11/ AB/R, 4 October 1996; Appellate Body Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, 30 April 2008, paras 161–62, in which the Appellate Body expressed the ‘importance of consistency and stability … as its findings are clarifications of

The Way Forward: A Prospective  191 The principled citation of judicial decisions by courts significantly defies the view that using judicial decisions is the product of a cherry-picking exercise, and shows that – at least as regards the thematic areas investigated in this work – judicial decisions are used and also followed in a principled manner. Even though courts have (mis)cited judicial decisions selected to serve a purpose, the point is rather to show that those cherry-picked cases have not become part of a consistent line of cases, and are thus less relevant – if at all relevant – for the formative purposes of international criminal law. The use of judicial decisions as epistemic tools paves the way to important questions on the nature of international law as we know it today. How would practitioners argue, interpret, decide on points of international law, if no judicial decisions were ever laid down by international courts? Would there be any materialisation of international law in the absence of courts’ authoritative pronouncements? Plainly, the multiplication of judicial decisions in the practice of public international law has emphasized judges’ representation of what international law is over other actors’ positions.42 The focus on international adjudication over alternative types of interpretations in the international legal discourse has reinvigorated the power of judiciaries. As the book shows, the normalisation of resort to judicial decisions in the international legal discourse has stemmed, inter alia, from the norms of argumentation that judges themselves have formulated and that have been capable of creating constraint as well as promoting change. Indeed, judicial decisions have proved to be ambivalent instruments. On the one hand, they show how international criminal law has been interpreted, and potentially offer guidance as to how it should be interpreted in later practices; they confine the exercise of discretion in later cases by exhibiting how discretion has been exercised in the past; they secure legal stability, predictability, consistency, etc. On the other hand, they restrain the development of the law, stabilising the interpretation of the law, to the point that judicial decisions become reference points in lieu of legal rules. Against this background, the concept of authority determined by social acceptance has presented itself as more apt to describe the epistemic value attached to the iterative use of judicial decisions, rather than the concept of legal bindingness. Authority is material within an argumentative framework where later courts sanction the correctness of judicial decisions rendered by prior courts, and in which law-making is diffused and decentralised. Given the qualitatively different relevance attached to national judicial decisions as compared to international judicial decisions, international courts have assumed a privileged the law and, as such, are not limited to the specific case’; Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, 4 February 2009, paras  362–65, in which the Appellate Body expressed a deep concern for the ‘Panel’s decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues.’ 42 On the point, see also F Zarbiyev, ‘On the Judge Centredness of the International Legal Self’ (2021) 20 European Journal on International Law 1.

192  Rethinking the Judicialisation Era position in orienting interpretive outcomes according to their reasons for action, at the expense of national decisions considered less authoritative. Indeed, the reiteration of judicial decisions brought international judicial decisions to the forefront of legal argumentation rather than national ones. The reiteration of judicial decisions which embed a reason for action implicitly reiterates the world-view associated with the reason for action put forward in the judicial decision, and it allows it to become ingrained in later legal practices. Citing judicial decisions produces normative effects in the practice of international criminal law, as it validates judicial decisions as correct statements of the law and enables them to become reference points in the argumentation of international criminal law. In particular, judicial decisions set in motion formative processes of legal rules, which are then consolidated by way of citation. The reiteration of judicial decisions stabilises interpretive outcomes around recurrent reference points, thus producing normative effects on how later courts perceive that they ought to interpret relevant legal rules. Importantly, reiteration of judicial decisions entails not only upholding a legal interpretation as a correct one, but also upholding the reason for action as the correct one. As such an argumentative technique such as judicial citation can be conceived of as an avenue of international law-making and the norms of argumentation as catalyst for change as well as staticism. Notably, such change and staticism have not only to do with legal rules but with the conceptual making of international law, namely the way we think about its function in the world, the reasons for its genesis and of its preservation.

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CONTRIBUTIONS TO EDITED VOLUMES Alter, KJ, ‘The Multiplication of International Courts and Tribunals After the End of the Cold War’ in CPR Romano, KJ Alter and Y Shany (eds), The Oxford Handbook on International Adjudication (Oxford University Press, 2013) 64–88. Bianchi, A, ‘The Game of Interpretation in International Law – The Players, the Cards, and Why the Game is Worth the Candle’ in A Bianchi, D Peat, and M Windsor, Interpretation in International Law (Oxford University Press, 2015) 34–60. —— ‘Textual Interpretation and (International) Law Reading: The Myth of (in)determinancy and the Genealogy of Meaning’ in PHF Bekker, R Dolzer and M Waibel (eds), Making Transnational Law Work in the Global Economy (Cambridge University Press, 2010) 34–55.

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206

Index Introductory Note References such as ‘178–79’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘international law’ and ‘judicial decisions’, the use of these terms (and certain others which occur constantly throughout the book) as entry points has been restricted. Information will be found under the corresponding detailed topics. abetting, see aiding and abetting accomplices  150, 163–64 acquis established  7–8 international  117–27 activism, judicial  14–15 actors  12, 23–25, 145, 171–72, 191 non-state  23, 136 plurality of  175, 184, 189 relevant  12, 25, 44, 61, 145, 171–73, 175, 184 acts of genocide  35, 98, 102, 107–8, 113, 123, 151 ad hoc tribunals  14–15, 48–49, 67, 90, 97, 99, 126–27, 151 adjudication  5, 8, 12, 14–15, 18–19, 41–42, 118, 167–68 of international crimes  13, 15, 17, 19, 22, 34, 183, 186 process  70, 98, 167 Afghanistan  138, 156, 158–60 aiding and abetting  18, 124, 163–65 Akayesu  99, 104–5, 107, 109–11, 117, 121–22, 125–27, 151 Al Anfal  125, 127 Al-Bashir  115 Aleksovski  53–55, 62–63, 131, 134, 147–48 alignment, perfect  94, 128–29, 131, 133, 135, 137, 140, 143 Al-Waheed  135, 139 applicable law  27, 32–33, 36, 41, 48, 53, 56, 112–13 Argentina  18, 149–52 argumentation  4, 6–9, 11, 21–63, 141, 182–83, 188, 190–92 between logic and persuasion  41–47 governing judicial decisions  47–63

legal  2–3, 5, 7–8, 20–22, 43–44, 46–47, 140–41, 172–73 norms of  6–7, 50, 183, 188, 190–92 argumentative framework  22, 96, 141, 146, 191 argumentative practice  2, 6–7, 11, 20, 173, 177, 185–87, 189 argumentative structures  8, 25, 144, 172, 177–81, 185, 189 argumentative techniques  4, 7, 22, 85, 192 armed conflict  16–18, 37–40, 128–36, 138–39, 143, 155, 179–81, 185–87 as concept in international jurisdictions  130–35 definition  130, 132–33 domestic  137 internal  131–32, 134, 136, 166, 179–80 international, see international armed conflicts (IACs) times of  16, 66, 128–29, 135, 139 armed forces  130–36, 155–57 armed groups  130–34, 136, 143, 187 organised  130–34, 136–37, 187 armed violence, protracted  130–33, 136–37 assumptions  16–17, 29, 71 audiences  11, 31, 42–44, 46–47, 142, 172, 189 authoritative interpretations  7, 12, 184 authoritative statements  3, 5, 24–25, 94, 135, 184–85 as knowledge on international criminal law  173–76 authority  47, 61–62, 90, 121–22, 158, 167–68, 170–75, 184–85 epistemic  175 governance  175–76 notion/term  47, 171, 185 persuasive  57–58, 161, 168–71, 188 term  170

208  Index automatic incorporation  76, 78 axiological preferences  6, 8, 92, 178, 187 background assumptions  27–28 Bagilishema  52, 107, 109–10, 123, 126–27 Barbie  66, 162 Bazaramba  87, 90, 124, 127 Bemba  134 Besebya  127 binding force/effect  49–50, 54, 58, 61, 153–54, 170 binding precedent  2, 53, 81, 168 Bosnia  38, 51, 110, 115, 144, 166 Brđanin  110 breaches, grave  17, 19, 36–37, 66, 69, 77, 166 Brima, Kamara and Kanu  132, 134 Bugingo  122, 127 burden of justification  6, 45, 184, 188 Canada  18–19, 81, 89–90, 120–21, 127 courts  67, 89–90, 120–21, 127, 167 cessation of hostilities  131, 134, 156 citation  7, 13, 86–88, 90–91, 93–94, 140, 180–82, 186–87 iterative  16, 172, 186, 190 practices  20, 86–87, 92–141, 146, 174, 183, 185–86, 189–90 and stabilisation of interpretive outcomes  8, 95–117, 129, 131, 133, 135, 137 as structuring device  92–95 civilians  40–41, 125–26, 128, 156–57, 160, 162 protected  59, 155–56 civil strife  61, 145, 166, 179–80 codification  36, 38, 66 cogent reasons  46, 49, 62–63, 147–48, 184 coherence  5, 44, 53, 55, 142, 177 Colombia  120, 165, 182 combatants  156–57 enemy  136, 155, 158 lawful  157–58 unlawful  16–17, 154–60, 186 common law  53, 71, 82, 118, 168 common sense  6, 61, 116, 145, 178, 180, 187 competence  36, 47, 60, 64, 171, 173, 175, 184 material  4, 64, 128 competing courses of action, choice between  11, 36–41 complementarity  14, 18–19, 42, 68, 77, 80 consistency  5, 20, 44, 55, 99, 105, 117, 142

constitutive elements  16, 39–40, 52, 59, 88, 99, 113, 130 content-determination  4, 9, 16 continuity  46, 62, 91, 147 control test  62, 143–44, 147 convergence  36, 63, 139, 148, 168, 190 correct interpretation  5–6, 24–25, 31, 57, 88, 92, 186, 188–89 correctness  42–43, 47, 141, 143, 145, 147, 189, 191 correct statements  7, 117, 135, 141, 185, 192 courts, see also individual court titles citing judicial decisions, interim evaluation  84–91 legal realist perspective on  23–28 national, see national courts plurality of  4, 14, 64–70, 161 creativity  7–8, 20, 184 judicial  8, 14–15 crimes against humanity  15, 18–19, 36, 38–41, 64–65, 76–77, 121, 161–62 criminalisation  37, 65, 79, 87, 97, 145 criminal law  4, 15–16, 64–65, 68 international, see international criminal law criminal liability  38, 179–80 criminal responsibility, individual  16, 38, 60, 65, 70, 74–75, 128, 179–80 cultural context  53, 106–7 customary international law  15–18, 20, 36–39, 89–90, 121–22, 142, 163–67, 179–80 customary law  36, 78–79, 85, 159, 165, 182 customary rules  34, 41, 57, 95, 108, 163, 167 Darfur  55, 57, 107–10, 114–15, 117 defendants  35, 38, 40, 59, 88, 123–24, 163–64 deference  19, 83, 90, 127, 171 Delalić  62–63, 134, 147–48, 180 detention  135–36, 156–60 unlawful  135, 149 dignity, human  42, 74, 178 discretion  5–8, 11–12, 21, 42–43, 46, 102, 104, 183–84 exercise of  5–6, 8, 12, 31, 184, 191 in interpretation of protected groups  98–111 in legal interpretation  28–41 scope  5–6, 36–37, 39, 46, 171, 184, 187 doctrinal law  26 domestic law  47, 77–79 drafters  34, 101, 103, 114 dual nationality  101

Index  209 effective control test  59–61, 143–44, 187 Eichmann  4, 66, 74, 97 elementary considerations of humanity  61, 116, 145, 178–80 enemy combatants  136, 155, 158 entrapment of judicial decisions  92–140 epistemic authority  175 epistemic knowledge  175–76 epistemic superiority  161–68, 182 epistemic tools  20, 22, 181, 189–91 epistemic value  3, 191 established jurisprudence  6–7, 45–46, 63, 149, 151, 153, 184–85, 188; see also inertia departing from  148–54 Etchecolatz  101, 149 Ethiopia  120, 149, 152 ethnic groups  100, 106, 109, 111, 114–16, 123–27 evidence  48–49, 57, 72–73, 105, 107, 161, 164, 189 evolutive interpretation  30, 160 exercise of discretion  5–6, 8, 12, 31, 184, 191 expansive interpretation  101, 108, 128, 152 expertise  121–22, 167, 174–75 Finland  18, 87–90, 124, 127 Finta  4, 121–22, 127, 167 foreseeability  33–34, 78 formal architectures  4, 64–90 formal justice  6, 44, 46, 53, 55, 61, 141–42, 148, 187 formal legality  34 formative processes  2, 12, 14, 20, 86, 145, 149, 154 Former Yugoslavia  3, 34, 36–37, 48, 67, 74, 121, 125; see also ICTY Furundžija  163, 165, 178, 182 general principles  48, 57, 59, 89, 95, 112, 152–53, 178–80 Geneva Conventions  17–19, 36–37, 58–59, 66–67, 129–30, 132–34, 155–60, 165–66 Additional Protocols  19, 133–34, 182 genocide  15–16, 50–52, 87–90, 96–102, 104–9, 111–16, 119–28, 149–52 acts of  35, 98, 102, 107–8, 113, 123, 151 crime of  87–88, 90, 96–98, 100–1, 107, 112–13, 119, 150 definitions  97, 99, 101–7, 115–17, 120–21, 123, 125, 127–28 legal  98–99, 116, 120, 151

departure from established jurisprudence  148–54 interpretation of protected groups  96–98 Genocide Convention  66, 83, 87–88, 97–108, 110, 119–21, 123–24, 149–50 Germany  18, 38–40, 60, 78, 98, 135–36, 139 courts  98, 101, 163–64 Nazi  40, 157 good faith  31, 33–34, 118 governance authority  175–76 grave breaches  17, 19, 36–37, 66, 69, 77, 166 groups defined  35, 52 national  99–101, 105, 124, 149–51 political  99, 103, 120, 149–52 protected  108, 111, 125, 155 racial  100, 103–4, 120 stable  99–100, 102–3, 109–10 targeted  53, 105, 107, 114, 126 Hamdan v Rumsfeld  138–39, 158–60 Hamdi v Rumsfeld  158–60 hierarchical structure  53, 62, 145, 169, 172 hostilities  131, 138, 155–57, 160 cessation of  131, 134, 156 human dignity  42, 74, 178 humanitarian law  38, 117, 135, 179, 183 international  36, 38, 128–29, 131, 134–35, 156, 160, 178–80 humanity considerations  6, 61, 116, 145, 187; see also elementary considerations of humanity human rights  32, 34, 60, 70, 78, 112, 156, 166 IACs, see international armed conflicts ICC (International Criminal Court)  13–15, 47–49, 55–58, 68, 88–90, 93, 110–15, 133–34 Pre-Trial Chamber  114–15 Statute  18–19, 48, 68, 77–78, 89–90, 97, 111–15, 136–37 ICJ (International Court of Justice)  50–51, 59, 100–1, 109–11, 115, 138–39, 142–44, 152–53 Statute  15, 27, 50, 88 ICTR (International Criminal Tribunal for Rwanda)  48, 67, 90, 109–13, 115–16, 121–25, 127, 132 Appeal Chamber  124 Statute  98, 100–1, 104 Trial Chamber  100–3, 105–6, 109

210  Index ICTY (International Criminal Tribunal for the Former Yugoslavia)  36, 38–41, 109–16, 121–23, 127, 132–34, 136–37, 139 Appeals Chamber  48, 51, 53, 57, 62, 143, 145, 147 Statute  37–38, 41, 98–99, 104 Trial Chamber  55–57, 103, 109, 131, 161–65, 178, 182 IHT (Iraqi High Tribunal)  125–26 ILC (International Law Commission)  12, 14, 61, 65–66, 76, 78–79, 144, 164 incorporation, automatic  76, 78 incrementalism  20, 186 vs revisionism  92–95 individual criminal responsibility  16, 38, 60, 65, 70, 74–75, 128, 179–80 inertia  44–45, 148, 185 inferences  21–22, 42, 44, 47, 116, 177 intentions  30, 33–35, 37, 41, 44, 103, 122–23, 130 interests of justice  49, 62–63, 147–48, 172 internal armed conflicts  131–32, 134, 136, 166, 179–80 internal precedents  81, 93 international acquis  119, 121, 123, 125, 127 deference to  117–28 international armed conflicts (IACs)  37–39, 61–62, 129, 136, 145, 147, 156, 179–80 international courts  6–7, 18–20, 117–19, 134–35, 173–75, 182–84, 187–88, 190–91; see also Introductory Note international crimes  14, 16–19, 34, 36, 57–58, 67–69, 74–75, 77–79 adjudication  13, 15, 17, 19, 22, 34, 183, 186 and national courts  76–80 International Criminal Court, see ICC international criminal law  4–5, 13–16, 90–92, 139–42, 145–46, 167–69, 172–77, 181–92 effects of regime development  70–73 genesis and historical development  64–70 interpreting  80, 118, 167, 174–75, 183, 187 International Criminal Tribunal for Rwanda, see ICTR International Criminal Tribunal for the Former Yugoslavia, see ICTY international criminal tribunals  15, 32, 48, 67–69, 83, 121–23, 161, 167–68; see also individual tribunals

international customary law, see customary international law international humanitarian law  36, 38, 128–29, 131, 134–35, 156, 160, 178–80 violations  36, 38, 53, 59, 128, 179–80 international jurisdictions  69, 86, 90, 98, 116, 118, 128, 130 criminal  15–18, 49, 51, 53, 61, 130, 132, 187–88 International Law Commission, see ILC international legal orders  2, 9, 73, 76, 81–82, 182, 184 international legal system  73, 80, 181 International Military Tribunal for the Far East  13, 34, 58, 64, 128, 130, 163 International Military Tribunal in Nuremberg  13, 37, 39–40, 64–65, 72, 79, 96, 179–80 international obligations  34, 77–78, 84, 118–19, 180 international rules  15, 57–58, 76, 79–80, 162 international treaties  10, 18, 30–35, 44, 58, 82–84, 118, 152 interpretation  6–16, 27–31, 34–37, 41–47, 94–98, 117–19, 184–85, 187–91 authoritative  7, 12, 184 correct  5–6, 24–25, 31, 57, 88, 92, 186, 188–89 evolutive  30, 160 expansive  101, 108, 128, 152 as incremental process of content formation  116–17 legal  8–12, 27–39, 44, 46, 94, 181, 183, 190 treaties  15, 18, 36 interpreters  10–11, 29–30, 32–34, 41–43, 98–99, 102, 104, 118–19 interpretive outcomes  1–2, 5–8, 29, 33–35, 128–37, 186–87, 189–90, 192 acceptance  111–15 perfect alignment, see perfect alignment of interpretive outcomes stabilisation  5, 8, 95–115, 128–39, 190 interpretive practices  42, 98, 108, 186, 189 Iraq  18, 124–27, 135 Northern  124–26 Iraqi High Tribunal (IHT)  125–26 Israel  18, 66–67, 74, 97, 135, 138–39, 155–56, 160 iterative citation  16, 172, 186, 190 iterative use of judicial decisions  2, 6, 8, 12, 141, 177, 188, 191

Index  211 Jelisić  51–52, 59, 103, 105, 109–11, 117, 125, 127 judicial activism  14–15 judicial citation, see citation judicial creativity  8, 14–15 judicial decisions, see also Introductory Note as basis of justification  57–63 entrapment  92–140 as epistemic tools  181–83 internal perspective on following  54–57 iterative use  2, 6, 8, 12, 141, 177, 188, 191 in national adjudication  81–83 reassessment of role in international law  183–89 judicial discretion, see discretion judicial interpretation, see interpretation judicialisation era  5, 22, 177–92 judicialisation turn  1–5, 177 judicial practices  17–18, 60–61, 83, 85, 94–95, 99, 145, 168–69 national  19, 97, 139 jurisdiction  37–39, 46–49, 68–69, 77, 130–31, 169, 179, 185 material  14, 36–37, 111 national  14, 18–20, 66–68, 81–82, 84, 86, 140, 151 subject-matter  93, 96, 113, 132 universal  76, 98 jurisdictional decisions  132–35, 138–39 jurisprudence  45–46, 49–50, 61–63, 89–90, 121–22, 132, 147–48, 169–70 justice formal  6, 44, 46, 55, 61, 141, 148, 187 interests of  49, 62–63, 147–48, 172 living  88 justification  6–7, 11, 31, 34, 45, 144, 177, 186 burden of  6, 45, 184, 188 judicial decisions as basis of  57–63 legal  2, 33, 81, 177, 189 rule-bound  11, 31–36 sufficient basis of  57–59 Karemera  49, 124, 127, 132, 134, 170 Kayishema and Ruzindana  107–11, 116–17, 123–24, 127, 165, 180 killings  56, 78, 87, 122–23, 128, 138, 149, 163 intentional  89–90 knowledge  1, 4, 20, 22, 173–75, 181–83 dissemination  20, 182 epistemic  175–76 Krstić  52, 104–5, 109–10, 114–15, 117, 151 Kupreskić  57–58, 116, 161

Ladjedvardi  139 lawful combatants  157–58 laws and customs of war  17, 37, 40, 61, 72, 128, 145, 157–60 legal argumentation  2–3, 5, 7–8, 20–22, 43–44, 46–47, 140–41, 172–73 legal arguments  7, 41, 43–45, 96, 173, 178, 184–85, 188 legal basis  17, 35, 39–41, 51–52, 83, 87, 128, 151 legal findings  2, 5–7, 15, 58, 80, 182 legal interpretation  27–39, 44, 46, 94, 181, 183, 190, 192 discretion in  28–41 as form of argumentation  8–12 legality  15, 20, 34, 42, 51, 61, 178, 190 formal  34 legal justification  2, 33, 81, 177, 189 legal orders  11, 76, 81, 118, 171, 178, 184–85, 189 international  2, 9, 73, 76, 81–82, 182, 184 national  76, 78, 80–82, 121–22, 168 legal realist perspective on courts  23–28; see also Scandinavian Legal Realism legal stability  6, 61, 63, 141, 145, 148, 183, 191 legal systems  6–7, 10, 44, 48, 61, 63, 78, 112 international  73, 80, 181 legal texts  10–11, 16, 28–30, 32, 128 liability  18, 84 criminal  38, 179–80 Limaj  132, 134 living justice  88 logic  21, 41, 43, 45, 60 logical-deductive processes  42–44, 173 Lubanga  49, 133–34 Martens clause  6, 116–17, 187 material competence  4, 64, 128 material jurisdiction  14, 36–37, 111 meaning formation  5, 7, 10–12, 23–25, 28, 42, 94, 98, 115–17, 128, 140, 186–89 military tribunals  158, 179; see also International Military Tribunal for the Far East; International Military Tribunal in Nuremberg Mucić  131, 134 Munyaneza  89–90 Musegera  122, 127, 167 Musema  52, 106–7, 109–10, 180 Muvunyi  110

212  Index Nahimana  121, 123, 127 national courts  16–19, 57–58, 68–70, 80–86, 88–92, 117–19, 127–28, 166–68; see also individual countries between entrapment and revisionism  135–39 and international crimes  76–80 national groups  99–101, 105, 124, 149–51 nationality  40, 75, 77, 100–1, 111, 114, 119, 156 dual  101 national judicial decisions  18–20, 90–91, 97, 127, 139, 161, 163, 167 national jurisdictions  14, 18–20, 66–68, 81–82, 84, 86, 140, 151 national law  34–35, 68, 70, 74, 76–77, 79–80, 82, 112 national legal orders  76, 78, 80–82, 121–22, 168 Netherlands  18–19, 124, 127 New Legal Realism  25 NIACs, see non-international armed conflicts Nicaragua  59–61, 143–44, 181 Nikolić  55–56, 103–5, 109 non-international armed conflicts (NIACs)  37, 61, 129, 136–37, 139, 145, 156, 179–80 non-law  9, 152–54 non-state actors  23, 136 normative effects  95, 133, 143, 153–54, 186, 189, 192 normative force  25, 54, 123, 139, 181 norms of argumentation  6–7, 50, 183, 188, 190–92 Northern Iraq  124–26 Nottebohm  100–1, 109, 111 Nuremberg  34, 36, 38–39, 57–58, 64, 128, 130, 179–80 Nuremberg Charter  13, 17, 38–40 Nuremberg Principles  14, 38–39 Nuremberg Tribunal, see International Military Tribunal in Nuremberg objective/subjective test  109–10, 127 objective tests  104–5, 108, 111 occupied territory  128, 156 opinio juris  38, 85–86, 116, 161, 164, 166 organised armed groups  130–34, 136–37, 187 overall control test  59–60, 62–63, 143–44, 146, 148, 187

Perelman, Chaïm  21, 44–46 perfect alignment of interpretive outcomes  94, 128–40, 143, 186 perpetrators  51–52, 69, 105–7, 109, 114–17, 122, 124, 165 alleged  40, 52, 66, 74–75, 104 persuasion  21, 41, 43–45, 47, 177, 185 persuasive arguments  168, 173, 181 persuasive authority  57–58, 161, 188 judicial decisions as  168–73 persuasiveness  46–47, 57, 96, 154, 170, 173, 185 Pinochet  4, 85–86 plurality of actors  175, 184, 189 plurality of courts  4, 14, 64–70, 161 political groups  99, 103, 120, 149–52 Popović  55–56 precedent  7, 15, 50–51, 56–57, 81–83, 159, 168–69, 181 binding  2, 53, 81, 168 internal  81, 93 ‘technique du précédent’  46 predictability  6, 44, 46, 49, 53, 61, 63, 187 prior judicial decisions, see judicial decisions prisoners of war  78, 128, 155–59 private individuals  60, 150 procedural international criminal law  15–16 protected civilians  59, 155–56 protected groups  16–17, 51–52, 111, 114–17, 120, 122–23, 125–28, 148–49 deference to international acquis in interpreting  117–28 definition  99, 116, 149 discretion in interpretive practices  98–111 interpretation in genocide cases  96–98 list  114, 117 protracted armed violence  130–34, 136–37 public conscience  116–17, 183 public international law  12–13, 15–16, 20, 22, 78, 85, 186, 191 Quirin  157–160 racial groups  100, 103–4, 120 Rasul v Bush  158 ratio decidendi  53, 55 rationality  61, 148, 173 reasoning  21–22, 25, 43–44, 50–51, 96, 126, 170–71, 178–79 reasons for action  6, 8, 41–42, 140, 144–46, 177–78, 183–87, 192 reciprocal rights  100–1

Index  213 reiteration of judicial decisions  5, 7, 20, 146, 192 relevant actors  12, 25, 44, 61, 145, 171–73, 175, 184 reliance  8, 81, 83, 132 religion  99–100, 105, 112, 114 religious characteristics  51, 105, 109 religious groups  52, 97, 100, 103–7, 109, 113–14, 125 responsibility  15, 65, 79, 152, 179–80 revisionism  20, 135, 140, 186 vs incrementalism  92–95 rewriting of international law  8, 22, 141–76 rhetoric  21, 43–44 rights  71, 79, 100, 118, 120 human  32, 34, 60, 70, 78, 112, 156, 166 reciprocal  100–1 Rome Statute  14, 18–19, 48, 68, 77–78, 89–90, 111–15, 136–37 Ross, Alf  21, 24–28, 71–73 rule-bound justification  11, 31–36 Rutaganda  52, 106–7, 109–10, 180 Rwanda  34, 48, 67, 89, 105, 123, 125–26; see also ICTR sanctions  47, 86, 141, 172 Scandinavian Legal Realism; see Ross, Alf scrutiny  19, 58, 87, 139, 172, 183 security  65, 74, 76, 164 Security Council  13, 37, 39, 53, 67 Resolutions  32, 36, 38, 67, 118, 142 Semanza  49, 52, 110, 170 social acceptance  184–85, 189, 191 as validator of correctness  141–48 sources of law  25, 88, 95, 113, 188 international  2, 15, 82, 96, 112, 152, 160 Special Tribunal for Lebanon, see STL Srebrenica  56, 105 stabilisation of interpretive outcomes  8, 95–117 to perfect alignment  128–39 stability  6, 44, 116, 154, 187 legal  6, 61, 63, 141, 145, 148, 183, 191 stable groups  99–100, 102–3, 109–10 Stakić  51, 110, 115 Stanisić & Župljanin  45–46 stare decisis principle  55, 61, 70, 81, 168 state practice  39, 60, 85, 100–1, 116–17, 142, 161, 166

state responsibility  36, 59–60, 144 stigmatisation  104–5 STL (Special Tribunal for Lebanon)  13, 15, 47, 67, 93 structural changes in international legal argumentation  177–81 subjective criteria  52, 103–4, 111, 116–17, 187 subjective tests  104, 107, 109, 124 subject-matter jurisdiction  93, 96, 113, 132 substantive international criminal law  4, 15–16 Tadić  41, 48, 59–63, 130–35, 137–39, 143–45, 147–48, 179–81 Taliban  135, 138, 155, 158–59 targeted groups  53, 105, 107, 114, 126 targeted killing  138–39 Taylor  134 territory  36, 61, 69, 75, 98, 129, 131–32, 134 occupied  128, 156 terror, war on  155–56, 158 tests objective  104–5, 108, 111 overall control  59–60, 62–63, 143–44, 146, 148, 187 subjective  104, 107, 109, 124 Tokyo, see International Military Tribunal for the Far East Tokyo Charter  13, 65 Tolimir  110, 123, 127 torture  15, 32, 75, 85, 149, 156, 163, 165 travaux préparatoires  100–1, 103, 106 treaties  10, 18, 29–35, 44, 58, 78–79, 82–84, 118–19 treaty interpretation  15, 18, 36 treaty obligations  69, 97, 121 UK, see United Kingdom uniformity  36, 46, 61, 142, 148, 161 United Kingdom  18, 38, 81, 135, 139 United Nations General Assembly  38, 65–66, 79, 100, 151 Security Council, see Security Council United States  18, 38, 81, 135, 138–39, 143, 155–58, 160 Supreme Court  138, 157–58, 160 universalism  34, 74–76 universal jurisdiction  14, 67–68, 75–76, 84, 98, 119–20

214  Index unlawful combatants  16–17, 154–60, 186 unlawful detention  135, 149 utterances  29, 141, 170–71, 175 values  43–44, 58, 84, 183, 190 common  73 epistemic  3, 191 Van Anraat  4, 124, 127 VCLT (Vienna Convention on the Law of Treaties)  16, 31–34, 37, 80, 88, 108, 173, 178 violence, protracted armed  130–34, 136–37

war  37, 40, 61, 66, 72, 78, 128–29, 155–60 laws and customs  17, 37, 40, 61, 72, 128, 145, 179 war crimes  17–18, 38–40, 64–65, 128, 130, 132–36, 160–61, 179–80 definition  18 war criminals  64, 72, 163 war on terror  155–56, 158 Yugoslavia  38, 50–51, 59, 165; see also ICTY