Understanding the Behaviour of International Courts: An Examination of Decision-Making at the Ad Hoc International Criminal Tribunals
Jodoin, Sebastien, Journal of International Law & International Relations
I. 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
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. …