Periodic Reporting for period 1 - INCRICO (The International Criminal Court and the Judicial Function: a Socio-Legal Study of Judicial Perceptions and Practices)
Reporting period: 2018-09-01 to 2020-08-31
INCRICO studies the judicial function of the International Criminal Court (ICC or Court) from a socio-legal perspective. It examines how ICC judges themselves view their jobs and cope with difficult legal issues in complex criminal cases, and how judicial understandings of their role influence the actual practices and decisions of the Court. This project develops a broader understanding of the judicial function that encompasses both strictly judicial as well as wider social (manifest and latent) roles of the ICC. Such a comprehensive view of the judicial function involves multiple functions of the ICC: law interpretation/application/development in the context of concrete cases; fact-finding and truth-seeking; dispute settlement; law-making; managing cases and regulating judicial processes; governance; performing social control, fostering social integration/stabilization and international (inter-state) socialization; and protecting the social interests and deep values of the international community.
INCRICO is particularly important for society, as it has the ambition of bringing the society closer to the ICC. First, the ICC is not a ‘regular’ international court engaged in dispute settlement and compliance with treaties, but is primarily a criminal court that convicts and imposes sentences on persons within the limits set forth in its Statute. Awareness of the Court's functions and performance is necessary for decision-makers and the public at large. Second, INCRICO also takes a forward-looking perspective and indicates the future challenges and possibilities of the Court’s action. It addresses the needed reforms of the ICC’s judicial system and the prospects for an improved exercise of its judicial function. Third, by exploring the societal, cultural and political dynamics and power relations characterizing the ICC and its jurisprudence, my analysis is an invitation to the mass media to reflect more and be more attentive to the messages and signals given by the Court. Fourth, INCRICO raises the profile of the core judicial institution of the international community in an era of populism and resistance to international courts. Thus, it may dispel some of the prejudice against international institutions and the ICC in particular by providing further insights into how ICC judges: relate themselves collectively to their direct constituents - the Assembly of States Parties; speak to the larger public; and take into account the legitimate expectations and interests of the international community. ICC judges should also be mindful of the reception of the Court's judgments as authoritative within an international community as the core basis for its legitimacy and wider support. My study therefore provides an authoritative account of the ICC that constitutes a significant response to recent strong criticism surrounding the exercise of its judicial function.
The core objective of INCRICO is to analyse how ICC judges view and experience the international criminal judicial function and how this, in turn, impacts the Court’s practices and decisions. Other objectives of the project are the following: First, to examine the inner (deliberative) process, the drafting process and the functions ICC judges ascribe to their work, including the use of separate and dissenting opinions. Second, to provide an engaging account of the judges’ views and practices and explain commonalities, nuances and differences between judicial conceptions and theoretical explanations of the concept of international judicial function as applicable to the ICC. Third, to offer a refined theoretical proposal for defining the judicial function of the ICC. Fourth, to increase awareness and knowledge of the ICC and its work among relevant scientific and criminal justice management/policy making communities, and the general public.
INCRICO is particularly important for society, as it has the ambition of bringing the society closer to the ICC. First, the ICC is not a ‘regular’ international court engaged in dispute settlement and compliance with treaties, but is primarily a criminal court that convicts and imposes sentences on persons within the limits set forth in its Statute. Awareness of the Court's functions and performance is necessary for decision-makers and the public at large. Second, INCRICO also takes a forward-looking perspective and indicates the future challenges and possibilities of the Court’s action. It addresses the needed reforms of the ICC’s judicial system and the prospects for an improved exercise of its judicial function. Third, by exploring the societal, cultural and political dynamics and power relations characterizing the ICC and its jurisprudence, my analysis is an invitation to the mass media to reflect more and be more attentive to the messages and signals given by the Court. Fourth, INCRICO raises the profile of the core judicial institution of the international community in an era of populism and resistance to international courts. Thus, it may dispel some of the prejudice against international institutions and the ICC in particular by providing further insights into how ICC judges: relate themselves collectively to their direct constituents - the Assembly of States Parties; speak to the larger public; and take into account the legitimate expectations and interests of the international community. ICC judges should also be mindful of the reception of the Court's judgments as authoritative within an international community as the core basis for its legitimacy and wider support. My study therefore provides an authoritative account of the ICC that constitutes a significant response to recent strong criticism surrounding the exercise of its judicial function.
The core objective of INCRICO is to analyse how ICC judges view and experience the international criminal judicial function and how this, in turn, impacts the Court’s practices and decisions. Other objectives of the project are the following: First, to examine the inner (deliberative) process, the drafting process and the functions ICC judges ascribe to their work, including the use of separate and dissenting opinions. Second, to provide an engaging account of the judges’ views and practices and explain commonalities, nuances and differences between judicial conceptions and theoretical explanations of the concept of international judicial function as applicable to the ICC. Third, to offer a refined theoretical proposal for defining the judicial function of the ICC. Fourth, to increase awareness and knowledge of the ICC and its work among relevant scientific and criminal justice management/policy making communities, and the general public.
INCRICO has resulted in four peer-reviewed open access publications. The first publication examines ‘culture’ as an extra-legal influence on judicial decision-making at the International Criminal Court. The second publication assesses the prospects for ICC judges to creatively interpret and develop international criminal law in order to adequately address multiple and intersecting forms of discrimination in adjudicating mass atrocities. The third publication discusses the ICC's legal framework and major conceptual and statutory concerns surrounding the ICC judges' enhanced engagement with the issue of intersectionality. The fourth publication examines the relevant case law of the International Criminal Court to assess the actual scope, confines and prospects of taking intersectionality perspective in the Court's adjudication of mass atrocities involving discriminatory targeting. Another peer-reviewed publication to be made soon available to the public as open-access is about the use of judicial dissent at the ICC. It explores why and when ICC judges dissent according to the views expressed by the judges themselves. As the ultimate project output, I am writing a monograph entitled 'The International Criminal Court and the Judicial Function: A Study of Judicial Perceptions and Practices' and to be submitted to Oxford University Press.
Other initiatives for the dissemination of the ideas related to INCRICO include: presenting the drafts of my publications at the Universities of Copenhagen, Hamburg and Utrecht; discussing the objectives of my research at these universities; co-convening a virtual conference at the University of Copenhagen on the role and impact of personal characteristics of international judges on their rulings; and co-editing a special symposium issue which will soon be published in the Leiden Journal of International Law.
Other initiatives for the dissemination of the ideas related to INCRICO include: presenting the drafts of my publications at the Universities of Copenhagen, Hamburg and Utrecht; discussing the objectives of my research at these universities; co-convening a virtual conference at the University of Copenhagen on the role and impact of personal characteristics of international judges on their rulings; and co-editing a special symposium issue which will soon be published in the Leiden Journal of International Law.
INCRICO has developed a novel approach to the understanding of the ICC and its judicial function by looking into the ICC judges’ perceptions of their roles that are behind their decisions and practices. A significant innovation of my analysis is to approach the judicial function of the ICC from the perspective of the internal/external dimension of legal practice. This is a major turn in scholarship, which has so far not paid closer attention to how the ICC is perceived internally as an institution by its judges. Extended interviews with ICC judges provide unique empirical material on the experience and dilemmas of the men and women on the international criminal bench. The interviews suggest 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. They reveal that ICC judges see additional objectives as part of the ICC's judicial function, including fact-finding, dispute settlement, law-making, managing cases and governance. To lesser extent, their expanded idea of the ICC's judicial function includes some social functions of the ICC, such as protecting interests and values of the international community. My research has revealed subtle and previously unrecognised ways in which mixed legal and sociological approaches can provide us with more nuanced and enriched understandings of the many roles the ICC plays.
The impact of INCRICO will be long-term. I hope to contribute to a turn in the analysis of the ICC that includes both sociological and theoretical aspects. My project book on which I am working now will speak to a wide audience of researchers, scholars, legal practitioners, judges and advanced graduate students.
The impact of INCRICO will be long-term. I hope to contribute to a turn in the analysis of the ICC that includes both sociological and theoretical aspects. My project book on which I am working now will speak to a wide audience of researchers, scholars, legal practitioners, judges and advanced graduate students.