JUDICIAL DECISION-MAKING IN INTERNATIONAL CRIMINAL COURTS: "EFFECTIVE" JUSTICE?

Abstract

The past two decades have witnessed the re-emergence of a system of international justice mechanisms, and the “institutionalisation” and “judicialisation” of international criminal justice, principally through the operation of formalised international and hybrid courts and tribunals. This followed a long period of impunity, during which there was virtually no legal accountability for the commission of atrocities and international crimes. After a slow beginning, several of these mechanisms then became active in the implementation of criminal justice against those accused of the most egregious crimes. All of a sudden, judges were required to adjudicate on complex and emotional factual and legal issues, largely without the benefit of significant practical experience. Over time, and particularly more recently, questions have been publically raised — even by judges themselves — as to the validity of several significant decisions. Highly visible controversies have emerged that have highlighted the difficulties in the judicial decision-making processes within these mechanisms of international justice. These challenge perceptions as to the “efficiency” of the justice being handed down. This article will discuss the applicable law used to determine and interpret legal rules in the international criminal arena, and then explore how these are increasingly challenged by both internal and external factors associated with the overarching context of the specific conflicts, and their political and social consequences.