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The International Criminal Court and the Judicial Function: a Socio-Legal Study of Judicial Perceptions and Practices

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The link between perceptions, behaviour and decisions: The case of international judges

Known as the court of last resort, the International Criminal Court has brought to justice some of the world’s worst criminals. With a focus on its judges, an EU-funded project provides a fresh account of the court’s working methods and practices.

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The International Criminal Court (ICC) is composed of 18 judges who are elected for 9 years by the Assembly of States Parties to the Rome Statute. Over the years, the actions of ICC judges and the reasons behind them have attracted a lot of scholarly interest. Contributing to literature in the field, the EU-funded INCRICO project, undertaken with the support of the Marie Skłodowska-Curie Actions (MSCA) programme, analysed how ICC judges view and experience the international criminal judicial function and how this, in turn, impacts the court’s practices and decisions. “It is against this backdrop that the project examined the court’s inner (deliberative) process and analysed the drafting process and the function(s) ICC judges ascribe to their work, including the use of separate and dissenting opinions,” explains Gregor Maucec, MSCA fellow. To do this, a novel approach was developed that involved looking into the ICC judges’ perceptions of their roles behind their decisions and practices. “A significant innovation of this analysis is to approach the judicial function of the ICC from the perspective of the internal/external dimension of legal practice,” adds Maucec. This is a major turn in current scholarship, which has so far not paid closer attention to how the ICC is perceived internally as an institution by its judges.

The ICC reality

“The project outcomes show that ICC judges’ perceptions of their duties go well beyond the idea that courts should apply existing, recognised rules/principles of law to the questions before them,” highlights Maucec. In fact, ICC judges see additional objectives as part of the court’s judicial function, including fact-finding, dispute settlement, law-making, managing cases and governance. “To a lesser extent, their expanded idea of the court’s judicial function also includes certain social functions of the ICC, such as protecting interests and values of the international community,” adds Maucec. The findings will be published in 2022 in a monograph entitled ‘The International Criminal Court and the Judicial Function: A Study of Judicial Perceptions and Practices’. The project has also published preliminary results in several peer-reviewed journal articles and in contributions to edited volumes. It also opened the door to Maucec to organise a high-level international (virtual) conference with Shai Dothan, associate professor at the University of Copenhagen, which examined how the personal characteristics of international judges affect their behaviour, work and decisions at international courts.

Making an impact

INCRICO provided new knowledge and insights into the theory and practice of international criminal judging. “In the long run, my project’s work may raise the profile of international courts in an era of populism and resistance to international organisations. Consequently, it may dispel some of the widespread prejudice against international criminal courts and tribunals in particular,” notes Maucec. Moving forward, Maucec is currently working on a book as an ultimate project output that will offer a systematic, comprehensive and nuanced study of the court’s judicial function. “As a result of this project, I received invaluable input and inspiration for the part of my next research project that focuses on the role that intuition as a personal trait and psychological phenomenon plays in the act of international criminal judging,” concludes Maucec.

Keywords

INCRICO, ICC, International Criminal Court, international judges, criminal judicial function, judicial perceptions, court’s practices and decisions

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