Citing Matters : An Analysis of the Use of Judicial Decisions in International Criminal Law Adjudication through the Lens of Law-Making

Abstract: The present research investigates the formative processes of international criminal law through the iterative citation of judicial decisions in adjudicatory practices. Given the centrality of the judge in the adjudication of international criminal law, this study is underpinned by a legal realist approach to international law informed by the work of Alf Ross (Scandinavian Legal Realism) and Gregory Shaffer (New Legal Realism), according to which the meaning of legal rules and principles is not autonomous from how they are empirically practiced and interpreted by courts. Judicial decisions thus embed authoritative statements of the meaning and content of international law.Assuming a retrospective look, this book analyzes how courts (international and domestic alike) have used judicial decisions in constructing the meaning and content of posited rules of international criminal law, and how they succeeded in stabilizing certain interpretive outcomes, or offered a reason to depart therefrom, in a dynamic process of international law formation.Although governed by the rules of the 1969 Vienna Convention on the Law of Treaties, the interpretation of treaties and international legal texts more broadly is not a mechanical act leading to uniform interpretive outcomes across different jurisdictions. Rather, interpretation is a form of argumentation in law, whereby the court argues for a particular understanding of a legal text to justify legal decisions. The choice of such an understanding over other plausible possibilities hinges on an exercise of discretion by the court, and is arguably influenced by, although not limited to, the normative ideology and axiological preferences of the judge. The analysis of judicial decisions undertaken in this research shows that the citation of judicial decisions stems from rules of argumentation laid down by courts themselves. As such, the formation of the meaning and content of the law is oriented and constrained by courts’ rules of argumentation which, for instance, require to follow prior established jurisprudence unless ‘compelling reasons’ exist to depart from it, or to justify departure from a previously established line of cases. In this argumentative framework, prior judicial decisions provide a justification to reaffirm like legal findings.This inquiry proceeds by way of three main steps: i) it describes the citation of judicial decisions in the adjudication of international criminal law in international and domestic courts; ii) it analyzes the relevance ascribed by courts to prior judicial decisions in their legal argumentation; and iii) it conceptualizes the iterative citation of judicial decisions as an avenue for the formation of international criminal law. In order to achieve these objectives, judicial decisions of international and domestic courts in three thematic areas are examined, namely the notion of ‘protected group’ in genocide cases, the notion of ‘armed conflict’ in war crimes cases as well as violations committed in armed conflict, and the notion of ‘unlawful combatant’. The analysis of this material allows to appreciate that the use of judicial decisions in courts’ adjudication transcends the doctrine of sources of international law and the idiosyncrasies of domestic legal traditions (common law/civil law), as the creative force of judicial decisions is primarily exhibited in courts’ argumentation. In this framework, the acceptance by later courts of prior judicial decisions (i.e. authoritative statements of the meaning and content of the law), signaled via citation practices, validates those judicial decisions as legally correct statements of the law. This explains why some judicial decisions became reference points in the adjudication of international criminal law while others have not.

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