Understanding the behaviour of international courts: an examination of decision-making at the ad hoc international criminal tribunals.

• Author: Jodoin, Sebastien

1. INTRODUCTION 1 II. MODELS OF DECISION-MAKING IN INTERNATIONAL COURTS 6 1. ATTITUDINAL MODELS 6 2. STRATEGIC MODELS 12 3. THE INTERACTION OF ATTITUDES AND STRATEGIES 18 III. EMPIRICAL ANALYSIS 19 1. DATA, CODING, AND VARIABLES 19 2. RESULTS AND DISCUSSION 22 IV. CONCLUSION 30 I. Introduction

   International courts (ICs) (1) play a key role in a number of regimes and institutional frameworks in international law and policy. Despite the remarkable increase in their prominence in the last twenty years, (2) the literature on the behaviour of ICs remains particularly undeveloped, especially when compared to the voluminous and diverse scholarship developed by North American political scientists on the behaviour of domestic courts and judges. (3) Most of the current scholarship on ICs focuses on their creation and design, (4) or on how they interact with their environments. (5) The literature that does focus on the behaviour of ICs mostly discusses the extent of their independence from the interests of powerful states. (6)

   This literature is unsatisfactory for a number of reasons. First, while scholars have produced accounts of the external factors that influence the decision-making of ICs, they have paid little attention to internal dynamics of IC decision-making. Second, much of this scholarship assumes that ICs behave strategically in response to the interests of various actors involved in a regime. Other perspectives on the nature of judicial decision-making, most notably the attitudinal model, (7) have received little attention. (8) Third, much of the empirical work produced by scholars has focused on a few courts--the International Court of Justice (ICJ), the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ)--leaving unexamined the decision-making of many different types of ICs.

   In this article, I seek to address these lacunae by focusing on the internal dynamics of decision-making processes within ICs, and by drawing on models of judicial behaviour developed for domestic courts. In this way, I seek to build further bridges between the work of political scientists on judicial decision-making and that of international relations and international law scholars on ICs. (9) My main contention is that the ideas and interests of judges in ICs account for variations in their decision-making.

   In order to test competing models for understanding the behaviour of ICs, I examine decision-making at the ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). These ICs were created by the Security Council in 1993 and 1994, respectively, to try the persons most responsible for the commission of international crimes in the conflicts in these two regions. (10) Despite the limits to their lifespan and jurisdiction, the decisions of the ad hoc tribunals have been very influential in developing the field of international humanitarian law and in reviving the field of international criminal law. (11)

   My approach to understanding the judicial decision-making of these ICs is characterized by three main assumptions. First, I assume that traditional theories of international organizations (IO), based on variants of Principal-Agent theory, are ill-equipped for understanding the behaviour of ICs. The relationship between states and ICs is actually more akin to a Principal-Trustee relationship than a Principal-Agent relationship. (12) In order to ensure their judicial independence, ICs are endowed with a high level of formal and structural autonomy. (13) In addition, the act of delegation to an IC implies a mandate that is premised on autonomous decision-making, such that ICs are expressly not meant to serve or be seen to serve as the agents of states. (14)

   Second, I assume that judicial decision-making is not reducible to the objective application of pre-existing legal rules and principles. I recognize instead that the law is often ambiguous and leaves space for opinion, discretion and innovation. (15) This is especially the case in international law, given the imprecise and incomplete nature of treaty law and the flexibility of customary international law. (16) Judicial decision-making is not however merely political. Rather, within certain boundaries shaped by law and the exigencies of the judicial function, judges in ICs exercise a measure of discretion that can only be explained by non-legal factors.

   Third, I adopt an individual-level perspective (17) that focuses on the specific individuals who are personally invested with the authority and independence to make judicial decisions--i.e. judges, panellists or adjudicators. Of course, the influence and involvement of individual judges varies with the personal philosophy of the judge in question. (18) Nonetheless, given that most judges take their roles seriously and retain control over the ultimate outcomes of their individual votes, my individual-level perspective accords analytical priority to variables derived from the ideas and interests of judges. This perspective is based on the "professional" model of judicial authority, (19) which is broadly similar to the one found in ICs. (20)

   However, as I point out in the conclusion, an individual-level perspective is not necessarily best placed to explain all forms of decision-making, or decision-making in all ICs. An institutionalist perspective may be more appropriate for certain aspects of judicial decision-making or for certain ICs. (21) Likewise, it is important to stress at the outset that this article adopts a methodologically conventional approach to studying the causal effects of ideas and interests on decision-making. (22)

   The ICTY and the ICTR form natural case studies for this approach to understanding the behaviour of ICs. They are a unique kind of Trustee IC: they are not dispute resolution mechanisms set up by a collection of states for use by or within these states, but rather criminal courts created by the Security Council to address crimes primarily relevant to another group of states. Accordingly, the Principal states in this context do not directly benefit from, nor are directly affected by, the decisions taken by the IC on behalf of the Beneficiary states and populations. In addition, judges at the ICTY and ICTR are able to issue separate and dissenting opinions, making it possible to study their voting behaviour through an individual-level perspective. Finally, a comparison of the decision-making at the ICTY and ICTR can serve to isolate the roles played by different non-legal variables relating to differences in the political context in which they operate, since the two ICs have similar institutional structures and norms, as well as shared legal rules and principles. The statute and structure of the ICTR were modelled after those of the ICTY and the same judges sit on the Appeals Chambers of both ICs. Legal officers in Chambers also frequently migrate from one to the other. Notwithstanding some differences in the types of charges that have been brought and legal issues that have arisen, there is a high level of consistency between legal developments in both ICs.

   I proceed in the following manner. In section II, I discuss two kinds of models for understanding the decision-making of ICs: 1) attitudinal models, which emphasize the ideas of judges; and 2) strategic models, which emphasize their interests. On the basis of these models, I then develop hypotheses that are appropriate to the particular contexts of decision-making in the ICTY and ICTR. My attitudinal hypothesis posits that the most appropriate conceptualisation of the ideational preferences of judges in ICs is whether they are aligned with "international activism" or "statist conservativism". My strategic hypothesis is that judges in ICs are committed to advantageously extending the authority, standing, independence and influence of their institution.

   In section III, I test these hypotheses though a quantitative analysis of decisions taken by the Trial Chambers and Appeals Chambers of the ICTY and ICTR. (23) I conclude that both ideas and interests can account for variations in the decision-making of ICs: judges pursue their preferences on certain matters while also taking into account, for strategic reasons, the preferences of relevant actors on other matters. While I agree that external interests may influence judicial decisions, I argue that they do so largely because they have a basis in the ideas and interests of judges.

   In sum, judicial decision-making in ICs amounts to a form of autonomous decision-making undertaken by judges who pursue certain objectives and who, like other actors, react and adapt to their environments in the pursuit of their objectives. The theoretical position advanced here is ultimately an eclectic one that combines insights from rationalism and liberalism, with the aim of understanding the relationship between international politics and judicial decision-making in ICs by moving beyond simple conceptualizations of transcendence or subjugation, and recognizing and accepting that they are necessarily intertwined.

2. Models of decision-making in international courts

   Attitudinal Models

   In this section, I provide the theoretical underpinnings of the attitudinal hypotheses that will be tested below, in section III.2., I begin by reviewing various approaches to modelling the nature and origins of the preferences of individual judges in the context of ICs. I argue that the most fundamental policy preference for an international judge is whether he or she is an international activist or a statist conservative in his or her approach to international law. I discuss a number of potential explanations for these preferences, but identify as most critical the independent variable of professional background: whether an international judge is a former academic, diplomat, or judges or practitioner.

   The attitudinal model has been the pre-eminent approach in the political...