Judges and the Making of International Criminal Law


Author: Joseph Powderly
In Judges and the Making of International Criminal Law Joseph Powderly explores the role of judicial creativity in the progressive development of international criminal law. This wide-ranging work unpacks the nature and contours of the international criminal judicial function. Employing empirical, theoretical, and doctrinal methodologies, it interrogates the profile of the international criminal bench, judicial ethics, and the interpretative techniques that judges have utilized in their efforts to progressively develop international criminal law.
Drawing on the work of Hersch Lauterpacht, it proposes a conception of the international criminal judicial function that places judicial creativity at its very heart. In doing so it argues that international criminal judges have a central role to play in ensuring that modern international criminal law continues to adapt to a volatile global environment, where accountability for crimes that shock the conscience of humanity is as much needed as at any moment in recent history.

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Joseph Powderly, Ph.D. (2017, NUI, Galway), is Associate Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. His research focusses broadly on issues relevant to international criminal law, international human rights law, and cultural heritage law.
List of Figures and Tables
Table of Cases
Table of Instruments

 I The International Judicial Function and the “Noble Lie”
 II Definitions: Judicial Creativity, Progressive Development of the Law, Disciplining Rules and Legitimacy
 III Outline of the Book

part 1
The Profile, Ethics and Function of International Criminal Judges
1 Getting to Know the International Criminal Judiciary: A Profile Portrait
 I Introduction
 II A Portrait of the International Criminal Bench: Composition, Representation and Professional Background
  2.1 Geographic Representation
  2.2 Representation of Legal Systems
  2.3 Gender Representation
  2.4 Professional Background

 III Conclusion: Composing the Portrait
The Independence and Impartiality of the International Criminal Judiciary
 I Introduction
 II Independence, Impartiality and Related Issues of Ethical Judicial Conduct
 III Questioning Independence and Impartiality: Excusal and Disqualification of International Criminal Judges

  3.1 The Ethical Duty to Request Recusal
  3.2 Grounds for Disqualification: Conflicts of Interest, Personal Associations, or Past and Present Extrajudicial Functions    3.2.1 Appointment to Political Office and the Maintenance of Judicial Independence: The Case of Judge Odio Benito
   3.2.2 Previous and Ongoing Involvement with Non-Governmental and Inter- Governmental Organizations: Judge Mumba and the Application of the Reasonable Observer Test
   3.2.3 Judge Ozaki’s Ambassadorship to Estonia: A Cautionary Tale

  3.3 Grounds for Disqualification: Biased Expressions of Opinion
   3.3.1 Opinions Expressed in Previous or Related Cases‘The Antonetti Saga’ ECtHR Jurisprudence on Judicial Impartiality “To Hell with Precedent”: The Birth of ‘The Antonetti Test’ in Mladic Meron v Antonetti in the Karadžic Case: A Petty but very Public Power Struggle
   3.3.2 Opinions Expressed Prior to Appointment to the Bench
   3.3.3 Extrajudicial Public Statements: The Perils of Free Speech Judge Harhoff’s Unburdening The (Un)Silencing of Judge Sow

 IV Conclusion

Judicial Creativity and the International Judicial Function: Lauterpacht’s Legacy
 I Introduction
  1.1 Why Lauterpacht?
 II Exploring Competing Conceptions of the Judicial Function: Beyond a Myopic Formalist Account
 III Identifying a Creative Interpretative Element in Conceptions of the International Judicial Function: Lauterpacht’s Legacy?
  3.1 Lauterpacht’s Theory of International Law
  3.2 Lauterpacht’s Conception of the International Judicial Function: Interpretative Creativity as the Pathway to Progress
   3.2.1 Judicial Creativity, Stare Decisis and the Evolution of the ‘Imperfect’ International Legal Order
   3.2.2 Gap-Filling, Pragmatism and the Gradual Concretization of Rules
   3.2.3 Effectiveness of Rules, Exhaustive Reasoning, and the Developmental Potential of Separate and Dissenting Opinions
 IV Conclusions: Lauterpacht’s Legacy

part 2 Judicial Creativity and the Making of International Criminal Law
4 Giving Life to International Criminal Justice: The Judicial Role in the Evolution of International Criminal Procedure
 I Introduction
 II The Function of International Criminal Procedure: Truth, Due Process and Efficiency
  2.1 Truth
  2.2 Due Process
  2.3 Efficiency
 III The Judicial Role in the Evolution of International Criminal Procedure
  3.1 Nuremberg and the Birth of the Rule- Making Power of the International Criminal Bench
  3.2 The Ad Hoc Tribunals and the Judicial Role in the Development of the Rules of Procedure and Evidence/>
  3.3  Limiting the Judicial Role in the Development of International Criminal Procedure: The icc and the Reconfiguration of Procedural Rule-Making Powers
 IV Conclusion

5 The Ad Hoc Tribunals, Judicial Creativity and the Rebirth of International Criminal Law
 I Introduction
 II The Drafting of the Statutes, Sources of Law and the Secretary-General’s Inconsistent Interpretative Guidance
 III Methods of Interpretation: Piecemeal Identification and Fractured Application
  3.1 A Sound Interpretational Foundation: The vclt Rules
  3.2 Grounding Creative Judicial Interpretation: The Utilization of Articles 31 and 32 of the vclt
 IV Reliance on Customary International Law: A Cure for All Statutory Ailments?
  4.1 Identifying Rules of Customary International Law: The Ad Hoc Tribunals’ Chequered History/>
   4.1.1 The Tadic Jurisdiction Decision: Reshaping International Humanitarian Law under the Guise of Questionable Customary Rules/>
   4.1.2 Creating Custom in the Service of Humanity: Kupreškic, Reprisals and the Martens Clause/>
   4.1.3 Custom, Cassese and Judicial Entrepreneurialism/>

 V Precedent, Custom and Controversy: Defining the Limits of Modes of Liability
  5.1 From Tadic to the eccc: The Birth (and Possible Death) of jce iii within Customary International Law
  5.2 Perišic and the Tangled Jurisprudence on Specific Direction
 VI The Importance of Exhaustive Reasoning for the Acceptance and Authority of Judicial Decisions
 6.1 The Consequences of a Failure of Exhaustive Reasoning: The Gotovina and Markac Case

 VII Conclusion

6 ‘Curb Your Creativity’: The Rome Statute and the Attempted Institution of Interpretative Restraint

 I Introduction
 II The Rome Statute and the Codification of Interpretative Restraint
 III Hierarchies, Sources and Strict Construction: Articles 21 and 22(2) of the Rome Statute
  3.1 Article 21(1) and 21(2): The Chaperoning of the Judicial Function and the Prioritization of Textual Interpretation
   3.1.1 The Interpretation of Article 25(3)(a): The Betrayal of Textualism
   3.1.2 Charting the Origins of Article 21’s Hierarchy of Sources and the Potential Impact on the Interpretative Judicial Function
  3.2 The Role of Precedent, Customary International Law and General Principles of Law in the Rome Statute’s Interpretative Regime
   3.2.1 Keeping Things in House: Adherence to Internal Precedent
   3.2.2 The Role of External Precedent in the Identification of “Principles and Rules of International Law”
   3.2.3 Questionable Rules of Customary International Law: The Rome Statute and Head of State Immunity
   3.2.4 General Principles Derived from National Systems as a Subsidiary Source
  3.3 Article 21(3): Consistency with International Human Rights Law as a General Interpretative Provision
  3.4 Article 22(2): Interpretative Freedom and the Requirements of Strict Construction

 IV Conclusion

 I Dispensing with the “Noble Lie”
 II Lauterpacht’s Legacy and the International Criminal Judicial Function
 III What Is Expected of the International Criminal Judge? Profile and Ethics of the International Criminal Bench
 IV The Judicial Role in the Progressive Development of International Criminal Law: Findings on Method and Future Prospects
 V Parting Words

This book will be of interest to scholars, practitioners, and members of the international judiciary, as well as graduate and postgraduate students studying international criminal law, or public international law more generally.