Lunch seminar with Stewart Manley

Judicial Law-making: An Empirical Study of Citations of the International Criminal Court


There is anecdotal evidence that at least one international criminal tribunal (the ICTY) has engaged in law-making because of a lack of cases and legal principles upon which to base decisions. I am attempting to test whether this is also occurring at the International Criminal Court through an empirical study of the ICC’s citations.

More specifically, I am determining the extent to which the ICC cites legal authorities that (for application of law) are not authorized by Article 21 of the Rome Statute or that (for interpretation of law) do not fit neatly into Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Such deviation – at least in some instances – is arguably law-making that contravenes the principle of legality. I hypothesize that the frequency of these unauthorized or questionable uses of authorities (if found) is related to the nature of the issue (e.g., genocide or war crimes); the level of chamber; the identity of the judge(s); the date on which a record is issued; and the type of authority referenced (e.g., treatise or domestic court decision).

This is a work in progress and I am at the data collection stage. I intend to ask more questions than perhaps is usual, to which I kindly request your feedback. A number of obstacles/things that continue to bother me:

Do you agree that at least in some instances the ICC’s citing of authorities not included in Article 21 of the RS is arguably law-making that contravenes legality?

The same question as #1 but with respect to Articles 31/32 of the VCLT (which of course are very broad; hence my use above of “does not fit neatly”).

How can one tell whether the Court is applying law or interpreting law if the Court does not specify? Should the default be interpretation unless otherwise specified?

How can citations related to evidential issues (as opposed to citations used to apply or interpret law) be used within the context of the hypotheses?

How should citations to previous ICC decisions be handled? Do they need to be traced back to their original source to determine law-making, or is there a less laborious way to handle them?

Would this research benefit from interviews and if yes, from whom?

How can I convince my colleagues that what I am doing is “legal” research?

Some examples will be presented in the seminar.

All interested are welcome to attend. Registration is not necessary.

Feel free to bring your own lunch bag.