Book Review — Judges and the Making of International Criminal Law, by Joseph Powderly

Book Review – Judges and The Making Of International Criminal Law, by Joseph Powderly. Brill-Nijhoff, 2020, € 215.

Wherever our theoretical refuge lies, be it abstract or pragmatic, we can say with relative certainty that to embrace a formalist conception of the judicial function (based inextricably on a pious belief in the sanctity of positive rules) is to embrace an intellectual conceit which lacks any basis in the practical reality of contemporary international adjudication, irrespective of the diversity of jurisdictional mandates. (p. 237-38)

I’m no fan of judicial creativity. It’s a slippery slope. What does ‘creativity’ mean? Where are the limits, if any? And if there are limits, how confident can we be that ‘creativity’ is not used as a means of inventing norms, of advancing lex ferenda (what the law should be) agenda, as Professor Antonio Cassese, President and Judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), along with his accommodating fellow judges, exuberantly and uninhibitedly did?

According to the Oxford Dictionary, creativity is defined as the use of imagination or original ideas to create something; inventiveness.

Do we really want judges to be creative in developing the law?

Professor Joseph Powderly says yes.

Professor Joseph Powderly

In Judges and the Making of International Criminal Law, Powderly argues that because there is no legislative body to speak of (except for the International Criminal Court (ICC) and its Assembly of States Parties), the gaping holes in international criminal law must be filled by the judges – that part and parcel of their mandate is to refine and develop international criminal law. Put differently, rather than engage in a zero-sum game approach to judicial decision making whereby gaps in the law or modes of liability or procedure stymie judicial proceedings with a windfall for the accused (and loss for the victims), judges are required to engage in judicial creativity when necessary to fill in (perceived) gaps in the available and applicable interventional criminal law – provided the principle of legality is respected.

I cringe at the thought of judges being creative, taking liberties with the applicable law.

I cringe at the thought of judges being creative, taking liberties with the applicable law.  I’m not gullible. While I have routinely fulminated in oral and written submissions against judges legislating from the bench (and the Humpty Dumpty approach in malleably and irreconcilably interpreting words to further a preordained purpose),1   Judicial creativity brings to mind English Judge Lord Atkin’s refrain, quoted by ICTY Judge David Hunt:  “I know of only one authority which might justify the suggested method of construction:  ‘“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all”’.  Prosecutor v. Slobodan Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements, 21 October 2003, para. 19.   I have never bought into what Judge Michael Kirby calls the noble lie – the myth “that the fundamental objective of the judicial function is simply to apply the law, not to make it.” Having had a front row seat before some of the international(ized) criminal tribunals and courts, I have grudgingly come to terms with the fact that international criminal law judges –  whenever possible and/or desirable – will unabashedly, if not enthusiastically, indulge as midwives in developing international criminal law and procedure.

But where are the limits? Is there a rational and measured approach to guide the international criminal judge? At what point does judicial creativity turn into activism? The statutes provide scant guidance, affording sufficient wiggle room for judicial creativity or even beyond-the-pale judicial activism. And the jurisprudence (admirably demonstrated in Judges and the Making of International Criminal Law) is all over the place – ranging from the prudent development of existing international law based on a measured reading of international instruments to the outright invention of fiction masquerading as customary international law.

Powderly serves the reader with excellent examples of judicial activism, two of which concerning substantive law are worth highlighting: Tadić where it was decided that individual responsibility for violations of the law and customs of war applies regardless of whether they occurred in an international or non-international armed conflict.2   Prosecutor v. Tadić, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory appeal on Jurisdiction 2 October 1995, para. 137. and Kupreškić – where it was held that customary international law prohibits civilian reprisals.3   Prosecutor v. Kupreškić et al., IT-95-16-T, Trial Judgment, 14 January 2000, para. 518. 

In his own words:

In both Tadić and Kupreškić, a palpable sense of moral distaste coupled with the prioritization of rationales drawn from international human rights principles, in particular notions of human dignity, significantly pushed the boundaries of what up to that point had been established norms of international humanitarian law.” (p. 383)

He attributes the methodology adopted by the ad hoc Tribunals to what Fredrick L. Kirgis calls the “sliding scale theory” of customary international law:

[T]he more destabilizing or morally distasteful the activity … the more readily international decision makers will substitute one element for the other [i.e. state practice and opinion juris], provided that the assessed restrictive rules seem reasonable.4   P. 383, citing Frederick L. Kirgis, Custom and the Sliding Scale, 81 AJIL 77, 146 (1987).  

Unsurprisingly, the outcome of this judicial activism is cynically embraced (if not encouraged) or rejected by the international community depending on the interests involved and the impact the precedent is likely to have. Crudely, whether judicial law-making is viewed as imaginative, creativity or wanton activism comes down to whose ox is being gored.

Powderly poignantly informs on the duplicity associated with judicial entrepreneurship – risk-taking judges on the prowl for opportunities to develop innovative legal concepts by convincing their fellow judges to go along with strategically crafted written decisions and judgments to affect.5   P. 404, citing Rosa Aloisi and James Maernik, Judgement Day: Judicial Decision Making at the International Criminal Tribunals 26-59 (CUP 2017). 

When the outcome of such enterprises conformed to the unexpressed will of states, as illustrated by Tadić, the use of custom in this fashion [pushing the boundaries of international humanitarian law under the guise of customary international law] was lauded as revolutionary and humanizing; however, when it conflicted with or overstepped the interests of states, as in Kupreškić, it was condemned as arbitrary and illegitimate. The ad hoc Tribunals’ creative use and abuse of customary international law as a means of advancing the effectiveness of their constitutive statutes was done in the interests of justice and human rights. It could be said that, in doing so, the bench were fulfilling their role as ‘judicial entrepreneurs’ [alert to the opportunity for innovation, willing to devote resources and take risks to develop unique legal concepts, and strategically use the written word to affect change]. (p. 404)

Despite many other eye-popping examples of judicial activism (Cassese’s judicial entrepreneurship in concocting joint criminal enterprise (JCE) as a mode of liability under customary international law is excellently treated), Powderly is undeterred. He invites us to adopt Hersch Lauterpacht’s suggested approach to the development of international law through judicial creativity in interpreting existing norms.

Lauterpacht was of the opinion that “if the science of international law is to fulfil effectively its legitimate twin function of accurately expounding and creatively assisting in developing the Law of Nations,” then the notion of voluntarist or jurisdictional theories of international law – being an impediment to international legal order – had to be abandoned.6   P. 246, citing Hersch Lauterpacht, The Reality of the Law of Nations, in International Law: Being the Collected Papers of Hersch Lauterpacht – Volume 2: The Law of Peace 46 (Hersch Lauterpacht, ed., 1975).  Non-State Parties to the Rome Statute would beg to differ, especially as to judges at the ICC creatively interpreting (and inventing) the Rome Statute and international law in justifying the expansion of the ICC’s jurisdictional limits.

Unpacking Lauterpacht’s theories and convictions, Powderly views Lauterpacht’s willingness to bestow international judges a mandate of determinacy on rules where legal vacuums exists as “progressive pragmatism” – “judicial creativity in alternative robes.” (p. 250) In Powderly’s words:

Responsibility for the ‘concretization’ of the rule of law in the normative sense lay not in the hands of the states but was rather entrusted to a community of enlightened judges. … Lauterpacht placed his faith in the Herculean ability of the judiciary to address lacunae in the fabric of the legal order in accordance with general principles and the object and purpose of international law, i.e., in accordance with his conception of ‘modern’ natural law. (p. 248-49)

Powderly cautions us that Lauterpacht was not promoting unrestrained judicial creativity. Normative gaps are to be filled by creative judicial interpretation grounded in and based on express rules or identifiable international legal principles. Absent this contextual caveat, i.e., a positive rule or identifiable principle, any gap-filling by judicial creativity would amount to judicial activism. (p. 258) More elegantly put, “in the dangerous course of steering between the Scylla of the complacent assumption of completeness of the law and the Charybdis of the attempt at fulfilling the function of an international legislature,” restrained judicial creativity is required of international judges.7   P. 558, quoting Hersch Lauterpacht, The Function of Law in the International Community 84 (OUP 2011).  

Guiding the international judge would be the express or implied intent of the drafters. In divining, if you will, “what the legislator would have intended if he could have foreseen the changes occurring in the life of the community,” the interpretive process, eschewing arbitrariness, would provide the “freedom within which the law conceived as something more comprehensive than the sum total of its positive rules” – an interpretive process.8   P. 261-62, quoting Hersch Lauterpacht, The Function of Law in the International Community 80 (OUP 2011).  Powderly finds this “arguably consistent with the contemporary requirements of Articles 31 and 32 of the Vienna Convention on the Law of Treaties.”9   P. 261-62, quoting Hersch Lauterpacht, The Function of Law in the International Community 80 (OUP 2011).

Distilling general conceptions of international judicial functions inspired by Lauterpacht’s theories, Powderly argues:

When confronted with circumstances in which there is an identifiable gap in the fabric of the international legal order, the international judicial function mandates that such gaps be addressed via recourse to creative judicial interpretation of extant applicable rules or general principles of law with the view to ensuring the progressive development of the law, based on the normative expectations of the international community and the realization of the effectiveness of the appliable law. (p. 274)

Clear, concise, measured. But are the international criminal judges willing and able to exercise the requisite restraint in strictly adhering to the guidance that Powderly, in the spirit of Lauterpacht, suggests?

If the international(ized) criminal tribunals and courts were stacked with judges the likes of Lauterpacht or Judge Christine Van Den Wyngaert, to name just one outstanding judge who shines whenever refenced by Powderly, I would be guardedly inclined to be less reticent in the notion of entrusting judges with the task of developing international criminal law. Best to keep them on as tight a reign as possible – something that the drafters of the Rome Statute attempted to do.

The reality, as shown in Judges and the Making of International Criminal Law, is quite telling. The quality of international criminal judges (some being subpar on a good day) is as disparate as their diversity / representativeness is uneven. Some judges come to the bench with a humanitarian agenda to push the boundaries of the existing law well beyond the mandate ascribed to them, primarily by going well beyond the strictures laid out by Powderly. And more importantly, even with a comprehensive statute and rules designed to guard against judicial creativity, where there is a will, judges will find ways to skirt statutory provisions and rules.

Be that as it may, wherever your theoretical refuge lies, as put by Professor William A. Schabas in his characteristically poignant forward to Judges and the Making of International Criminal Law:

All of those engaged in the works of the tribunals, from prosecutors and defence counsel who confront international judiciary to the government officials who nominate and select its members, have much to learn from this important study. (p. XIX)

I concur.


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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “Book Review — Judges and the Making of International Criminal Law, by Joseph Powderly”

  1. Important issue. But, it is fundamentally wrong, to think, that what judges are doing, is being creative. For, if so, this is their inherent duty. The core of their duty. Dictated even, by the law or the lawmaker.

    First, the definition brought (Oxford Dictionary) is missing the most essential part for our purpose:

    And it is, the reorganization or reconfiguration of facts and principles, implied on certain case. Re…means, that it is not necessarily about imagination or new invention, but: Re….. reorganizing the observation, the arrangement of facts and principles. Not necessarily being creative, and inventing things from scratch.

    Second, the lawmaker, orders it. Explicitly so. For example, the Rome statute, dictates clearly in article 21, I quote:

    1. The Court shall apply:

    (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

    (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

    (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

    End of quotation:

    So, it does happen according to the Roman legislator, where, no law exists, no norm, at least not in the Rome statute itself. Then one judge, needs to become “creative” and look for laws outside the Rome statute (national laws for example).

    But, and above all:

    The lawmaker, can’t predict and anticipate every occurrence. Every development(like the invention of the internet). The lawmaker , has very strict and narrow and subjective understanding of occurrences in reality. That’s life. Judges must fill the gap.

    In that domain of international criminal law, we can bring good illustration(countless in fact):

    The case of Omar Al Bashir (the president of Sudan at the time). Here we have classic case. No problems. UN referral. Two arrest warrants. Omar Al Bashir visits the AP(African summit) in South Africa. Why for Christ sake, not to arrest him and hand him to the ICC. Well:

    Among other problems, the Roman lawmaker, has ignored one “negligible ” problem:

    He has immunity (of head of state). There is no clear and decisive procedure of declaring and defining in what moment precisely, his immunity is stripped of (if at all according to many scholars). All what the judge of the pre trial chamber could claim, was:

    That the very UN referral, implicitly removed his immunity. But, nowhere in the Rome statute, it is defined so.

    So, even with such core issue, the Rome statute, couldn’t deal properly. This is the nature of every legislator. Reality, exceeds any narrow subjective understanding and prediction of future occurrences.

    That is then, the inherent and core duty of one judge. This is not creativity. This is his job. Inherent job.

    Thanks

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