Artur Appazov† | 3 Regent J. Glob. Just. & Pub. Pol. 1

ABSTRACT

This Article examines the theoretical and historical contexts, the applicable law and the practice of the International Criminal Court (ICC) to establish whether activist interpretation features in judicial decision-making of the court. The Article argues that the high level of detail in the normative framework of the court does not address activist judicial practice as was anticipated by the creators of the court. Influenced by the interpretive culture of the foregoing tribunals where normative realities were starkly different, judicial interpretation at the ICC nonetheless experiences similar activist tendencies that may defy the established legislative polices of the court and the principle of legality. It argues that the incoherent interpretive practice allows the judges to express their idiosyncratic understanding of law in a way that may be inconsistent with the policies previously announced by the states parties to the Rome Statute and the court’s legislative authority –the Assembly of States Parties. The Article concludes that consistent and sound interpretive methodology is wanting for the court to be able to effectively adhere to the principle of legality.

INTRODUCTION

The creation of the modern international criminal courts triggered an active process of development of international criminal law and its institutions. Having started as a handful of customary legal rules, international criminal law has developed through the jurisprudence of these courts into a comprehensive body of positive law that today is largely reflected in the Rome Statute of the permanent International Criminal Court (ICC).

The judicial process in the early ad hoc tribunals took course under assumption of discoverability of ex ante specific components of international crimes, and of specific norms of international criminal law in general. 1 These cryptic norms were assumed to have existed in their latent form in either international custom or principles of law and only needed to be actively discovered by the judges. A wide range of interpretive methods – from the postulates of the Vienna Convention on the Law of Treaties to fundamental values of humanity – was employed for that purpose. 2 The interpretive processes at the ad hoc tribunals, such as the International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), showed that in the context of customary international law the line between creation and discovery of law is hard to detect.3 This ambiguity resulted in concerns of subjecting the entire process of legal development to the individual vision of a judge. The resulted expansion of the normative body of international criminal law sparked a vigorous debate about the age-old dilemma of relationship between a judge and the law, translating the debate into the international criminal law context.4 The vigour of progressive jurisprudence of the ad hoc criminal tribunals raised many questions vis-à-vis judge-made law, its legitimacy at the arena of international criminal justice, and the boundaries to which the practice of expansive interpretation is permissible to extend without offending the principle of legality.

The common law tradition that greatly influenced all international criminal courts has a long history of debate on judicial discretion. In the twentieth century, American legal scholarship labelled certain age-old progressive practices of judicial freedom in interpretation of law as judicial activism. The practice of activist judging may have expanded to ad hoc international criminal tribunals drawing on both the courts’ common law parentage and the nature of the international legal order with its decentralised legal architecture and the absence of legislative authority. The lack of normative clarity and complex realities in which ad hoc tribunals had to operate pleaded in justification of the progressive developments of law at these international courts.

Unlike the ad hoc tribunals, the ICC is equipped with a well-prepared and detailed set of comprehensive positive rules – the Rome Statute (the court’s creating treaty), the Rules of Procedure and Evidence, the Elements of Crimes and other instruments. The normative reality of the ICC significantly limits the space for the progressive development of international criminal law through limiting the interpretive freedom of the judges and their capacity to actively develop applicable criminal law. The Rome Statute, in addition to supplying the judges with a codification of substantive and procedural norms, provides for interpretive guidelines mainly expressed through its articles 21 and 22.5 In turn, the structure of the court provides for the legislative authority assumed by the states parties to the Rome Statute and their Assembly (ASP). This further limits the judicial function by clearly distinguishing it from the legislative mandate. These normative and structural changes may have been intended to limit the role of the judges in the law-making processes.6 However, the incoherent interpretive practice may allow the judges to express their personal understanding of even the most detailed law in a way that may be inconsistent with the pre-announced policies. A judge may invoke a particular interpretive canon to yield a desired outcome in his decision, rather than be guided by the law in light of consistent methodological reasoning.7 In the absence of clear interpretive methodology, the ICC might run the risk of continuing the inertia of activist judging that gained momentum at the ad hoc tribunals. At the expense of the principle of legality, such practice may establish a similar culture of expansive judicial interpretation that defies established policies expressed in the codified law of the court.

The main objective of this Article is to examine the theoretical and historical contexts, the applicable law, and the practice of the ICC to establish whether activist interpretation features in the judicial decision-making of the court. For that purpose, this Article provides for a theoretical discussion of the concept of judicial activism and the related interpretive phenomena. It then uses the theoretical findings to analyse the context in which the early ad hoc international criminal tribunals operated. This Article argues that the ad hoc tribunals developed a culture of activist interpretation of law that subsequently emerged at the ICC despite its structural differences. This Article considers whether the legal architecture of the ICC with its high level of normativity and textual clarity helps abate the judicial interpretive function by subjecting it to the principle of legality and whether the interpretive rules as applied by the court are adequate to address activist judging. To reveal the activist tendencies in the work of the ICC, this Article considers a number of examples from the practice of the court that in the opinion of the author are most illustrative of the activist tendencies.

I. DECONSTRUCTING JUDICIAL ACTIVISM

The term “judicial activism” first appeared in legal parlance in January 1947, when Arthur Schlesinger Jr. introduced it in his article in a popular Fortune magazine intended for a very general audience.8 An American historian and a social critic, Schlesinger profiled the then judges of the United States Supreme Court.9 He articulated the divisions among the judges by highlighting the differences among them in their perception of the judicial role.10 Schlesinger discerned two main groups, characterizing one group as being “judicial activists,” and the other as the “champions of self-restraint.”11 Judicially active judges, as portrayed by Schlesinger, are those who, being aware of the ambiguous range of law and believing in inseparability of law and politics, move the policy concerns and social results to the front in the exercise of their judicial power. The champions of self-restraint, on the other hand, believe that the meaning of the law is fixed. Deviation from the fixed meaning is inappropriate even in cases where the legislator made a clear mistake in law, in which situation the remedy must be left to the legislator.12 By extrapolating his “judicial activism” and “self-restraint,” Schlesinger reminded his audience of the fundamental formalist-realist philosophical dilemma of judicial discretion in the context of the doctrine of separation of powers and legal decision-making within the doctrine.13