Judicial Decision Making at the Icty

By Meernik, James; Aloisi, Rosa et al. | Judicature, January/February 2012 | Go to article overview

Judicial Decision Making at the Icty


Meernik, James, Aloisi, Rosa, Ding, Jennifer, Judicature


THE INFLUENCE OF HOME COUNTRY CHARACTERISTICS

Does the political history in which international tribunal judges are trained and socialized affect the leniency or severity of their sentences?

Legal scholars have long studied the determinants of judicial decision making, and have been particularly fascinated with shining a bright light onto the impact of the background and characteristics of judges. In studies of United States courts many researchers have found strong evidence of the impact of judges' ideological or policy perspectives on their decisions, while others have argued that the law - precedent, cases facts and the arguments of litigants - hold sway.1 Scholars are now beginning to accord greater attention to analyzing the impact of home country ties, judicial independence and other national attributes in studies of judicial decision making in international courts.2 There has been little research, however, that has investigated judicial decision making at the international criminal tribunals in which the judges have been the focal point3 Do international tribunal judges make decisions based strictly on the evidence and arguments proffered in court? Or do they bring any predispositions and background characteristics that influence their decisions? Are decisions a product of the courtroom, or can they be affected by the judge's political socialization in her home country? We analyze key attributes of judges' home nations to determine if such factors have any influence on the sentences judges hand down at the International Criminal Tribunal for the Former Yugoslavia (ICTY). In particular, we explore whether the political history and political/legal systems in which judges are trained and socialized affect the leniency or severity of their sentences. For example, do judges hailing from more democratic nations with better human rights protections bring this political culture with them to the international arena and extend greater leniency to defendants? Are judges from common law systems with greater familiarity with plea-bargaining more likely to impose lighter sentences on defendants who plead?

This essay is organized as follows. It begins by providing background to our analyses where we describe the rationale behind our investigation. In the second section of the paper we evaluate the impact of a series of characteristics of the judges' home nations including their experience with politicai violence and the conduct of domestic human rights trials, level of democracy, the extent of human rights protections, and the type of legal system. We conclude with an overall assessment of our findings and suggest new directions in the study of international judicial decision making.

Background

In the wake of major civil wars and human rights violations the international community has created a set of international courts to bring justice, peace, and reconciliation to those societies and populations affected by the perpetration of atrocious crimes. The success of these international institutions depends, in part, upon the international judges elected or appointed to these courts. Scholars4 have devoted considerable attention to the way international judges operate and the factors affecting their decisions. Some scholars5 have been particularly attentive to ascertaining whether any type of bias enters their decisions, but have concluded that without more detailed data regarding judges' voting decisions; it is particularly difficult to determine whether they promote specific interests. What we can say with certainty is that the judges composing the panels of international criminal courts are quite a diverse group. Although all of them share a certain amount of training in the law, they enter the international courtroom with widely disparate professional backgrounds, exposure to different social, economic, legal and political systems, to say nothing of their personal backgrounds. Scholars6 have pointed out that the sentences judges hand down seem to be influenced by factors other than law. …

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