In cases that come before the International Court of Justice (‘the ICJ’, or ‘the Court’), its own jurisprudence looms large. This is despite the fact that no rule of stare decisis operates before the ICJ. The juxtaposition of the facts expressed in these two statements has generated significant doctrinal and theoretical debate. In this article I propose a novel theoretical framework for understanding the role that precedent has traditionally played in proceedings before the Court, and that which it should play in the future.

This theoretical framework rests upon a constructive interpretation of the doctrine of stare decisis. I examine the historical institutional practice of the Court in order to determine the range of possible versions of the doctrine which, in Dworkin’s words, ‘fit’ this practice. Noting that there is more than one potential version of stare decisis which fits the Court’s practice, I next consider which is justified as the version which best reflects the value of this doctrine. Having shown that the value that stare decisis strives to achieve is contextual justice, I argue that only a weak version of horizontal stare decisis can justify this doctrine. My ultimate claim is that the Court’s principal concern when considering whether to follow or depart from its own jurisprudence should be that of achieving justice in the context of that particular case, and not merely ensuring consistency, predictability or efficiency.

This article analyses the growing resistance to judgments of the International Court of Justice arising out of domestic law in Latin America, through a study of challenges to the authority of the Court’s judgments regarding territorial and maritime delimitation in the region. These challenges are based upon the ‘territory clauses’ found in many Latin American constitutions, which were used to set national boundaries following colonial independence. Territory clauses that once developed international law doctrines such as uti possidetis iuris are now being used against prevailing international law rules, in a process described in this article as ‘constitutional resistance’.

This article explains the nature of ‘territory clauses’ in Latin America, i.e., clauses that constitutionally define the national territory in reference to international law. It then describes the process of ‘constitutional resistance’, by which local authorities have used these clauses to oppose ICJ judgments, leading to various results, such as non-appearance in further proceedings, constitutionalizing exclusively favourable judgments, deferring the implementation of a judgment to the Constitutional Court or implementing only certain ICJ judgments, while creating legal barriers to the implementation of judgments that, in the State’s view, negatively affect their territory.

These challenges based on territory clauses are studied through prominent ICJ cases involving Nicaragua, Honduras, El Salvador, and Colombia. The article also explores how the lack of a strong territory clause eased the implementation of the Peru v. Chile judgment, and how the recent non-appearance of Venezuela in its current ICJ proceedings with Guyana, is partly based on constitutional justifications.

There is a dearth of women judges sitting on international courts and tribunals. This contribution pays attention to the question of why judicial gender matters. Demonstrating that sex-based differences play an important part in judging has challenged even the most committed essentialists. Legitimacy-based arguments are deemed inadequate in so far as they fail to address the structures of power and discrimination that create exclusions. In this contribution, I argue that the dearth of women judges matters because it is both symptom and cause of the highly gendered way in which international law and international institutions operate. Drawing on Erika Rackley’s early work in which metaphor is used to reveal the gendered nature of the judicial role, I call forth the idea of the totemic judge of international law whose male gender is rendered invisible and unremarked and who functions to enrobe the gendered norms and institutions of international law. The female judge, conversely, is a disruptive force as her very presence places gender in the frame. Drawing on accounts from international courts and from the Feminist Judgments in International Law project, this contribution concludes that an approach to judging that acknowledges and challenges structures of power – including gender – contains transformative potential. However, it is potential that must find a way to operate within significant institutional and normative constraints.

Understanding international judicial behaviour requires the development of a perspective that considers both individual and collective action. On the one hand, individual judges are influenced and shaped by their background and trajectory prior to their international judicial appointment; on the other hand, when appointed to international courts, they become part of a particular social setting and group dynamic. The article provides an interpretive, structural theory of judicial behaviour which allows for an understanding of international judicial action and the judicial institutional practices resulting from it. The article explains this double structuration of international judicial behaviour by first reconsidering and amending the notion of habitus, originally developed by Pierre Bourdieu, and secondly by applying this idea to the practice of the Caribbean Court of Justice.

Prosecutor v. Jean-Pierre Bemba Gombo was the International Criminal Court’s first case directly addressing the command responsibility doctrine. As the first permanent international criminal court who can exercise jurisdiction over a majority of the world’s nation states, its interpretation of the doctrine was potentially an important development in international criminal law and an opportunity to affirm the legal responsibility of commanders for their subordinates’ crimes. However, rather than providing a clear articulation of the doctrine and its scope, the Appeals Chamber was split. By a 3–2 majority, it reversed the Trial Chamber’s decision and the Appeals Chamber’s judges were sufficiently divided in their reasoning that they felt compelled to deliver separate opinions.

A key disagreement within the doctrine is whether command responsibility is a mode of liability or a separate offence of dereliction of duty. This disagreement feeds into further contestation about the doctrine’s core elements, including the standard of fault necessary under its actus reus or mens rea elements. This article examines the judges’ reasoning in Bemba to illustrate that, despite decades of jurisprudence and academic debate, there is still confusion on these foundational elements. Instead of being ‘settled law’, the debate on command responsibility is still live. The article maintains that the current law supports a mode of liability interpretation but proposes that reclassifying the doctrine as a separate offence could resolve many of its tensions while observing the culpability principle, satisfying its justifications, and facilitating an adequately wide scope of accountability.

In discussions of impunity, such as the one surrounding the International Criminal Court, the concept of impunity itself has remained relatively unattended. Examining the concept more closely reveals that we use it in both thin and thick senses, the thin relating to a concern about the values of punishment and the criminal law and the thick to a broader notion of equality, of which crimes being punished (equally) is one aspect, but not the totality of the issue. Only a thick version of impunity captures all that makes it a problem we care greatly about. According to this conception, what makes impunity a problem is primarily a failure to ensure equality before the law. This can show up in two ways. First, when a crime is not prosecuted or punished because the offender belongs to a group of people who are beyond the reach of the law. Second, when a crime is not prosecuted or punished because the victim belongs to a group of people deemed less important in the eyes the law. Institutions and courts of law end impunity, first and foremost, by restoring the experience of equality against privilege and brute power. This sets an important challenge to the International Criminal Court, because while the Court may serve many important values, its current institutional formation and its political context seem to undermine its capacity to contribute to end impunity in the thicker sense.

This article explores the phenomenon of judicial dissents at the ICC. The main subject is the process of collective decision-making and judicial deliberations in cases where members of a particular ICC chamber cannot reach a consensus on factual, substantive or procedural issues and render a unanimous decision. The article examines why and when international criminal judges dissent according to the views expressed by ICC judges. Drawing heavily on field research in The Hague, the article presents a qualitative analysis of the ICC judges’ perceptions and experiences of using dissenting opinions at the Court. Empirical findings derived from interviewing ICC judges support the hypothesis that international criminal judges’ personality, that is, their character differences (such as self-discipline and other work habits), their previous career experience, and their field of expertise determine their likelihood of using judicial dissents. In case of disagreement within an ICC Chamber, judges with criminal law backgrounds who previously worked as professional judges are more likely to append their dissent to a majority ruling with which they do not agree than international judges, diplomats, and professors with public international law expertise who are more willing to discuss and negotiate in order for the Court to speak with one voice.

It has been widely evidenced that international crimes are collective in nature and involve individuals acting through an organized structure. Thus, besides punishing the physical perpetrators, an important task for international criminal law is to develop the proper doctrines to attribute responsibility to those on top of such organizations. In this direction, the concept of superior responsibility becomes highly relevant, attributing liability to military or civilian superiors for their failure to prevent the crimes of their subordinates. Nevertheless, international criminal law has not yet developed a concrete approach to the nature and application of the superior responsibility doctrine. To overcome this shortcoming, this article identifies the links between the superior responsibility doctrine and the theoretical framework of attributing criminal responsibility to the individual for the commission of international crimes. Developing on omission theory, it suggests an alternative theoretical approach to the superior responsibility doctrine, which combines the theory of control already applied in the case law of the International Criminal Court (ICC) with the mens rea requirements of the ICC Statute.

Silence has often been studied in international law as a mechanism tied to passivity and oppression. In this study, I propose an exploration of other ontologies of silence by unravelling its possibilities as an active mechanism, namely: (i) a tool for resistance; and (ii) a linguistic device for managing disagreement. For this, I use as an exploratory ground the construction of a non-definition of gender for the crime of persecution in international criminal law (ICL). Analysing the Rome Statute negotiations, I examine how gender-conservative actors successfully opposed the proposal for a non-definition of gender, arguing that such a solution would harm the clarity required by the principle of legality in ICL. By establishing that legal rules must be clear, specific, and cohesive, I argue that the legality principle imposes a burden of speech upon non-state voices in ICL, one that encircles them within a subalternity scheme where speech is demanded but can only be performed or mediated by states. Exploring the negotiations of the Convention on Crimes Against Humanity draft, I examine how the non-definition of gender allowed feminist and queer activists to resist such a burden of speech for the conceptualization of gender. Simultaneously, silence also provided an opportunity for International Law Commission members to propose a draft that avoids cacophony around a contentious term. By reflecting on the active roles of silence, this study contributes to new modes of analysing resistance to dominant modes of legal discourse, as well as exploring dynamics of order(ing) in international law-making.

In March 2011, three defence witnesses, who were in detention in the Democratic Republic of Congo (DRC), were transferred to The Hague to testify before the International Criminal Court (ICC) in the trial against Germain Katanga and Mathieu Ngudjolo Chui. Once the witnesses had testified, they were returned to the DRC, even though they feared for their lives, and had lodged an asylum request with the Dutch authorities.

This article argues that the ICC is bound by the principle of non-refoulement: a prohibition on returning or extraditing an individual to a country where there is a real risk, or substantial grounds, they might be subjected to torture or other human rights violations. Like other individuals, ICC witnesses should enjoy protection from refoulement. This conclusion is based on analysis of the relationship between the ICC and international human rights law through two different approaches. The ICC, as an international organization, is obliged to respect the principle of non-refoulement but additional obligations stem from the Rome Statute. Article 21(3) obligates the ICC to interpret and apply the law governing protective measures in conformity with ‘internationally recognized’ human rights. In concluding that the ICC has not fully acknowledged the extent of witnesses’ rights, this article proposes strengthening the role of the witness protection programme to address the evident deficiencies in the ICC’s current practice.

One of the revolutionary aspects of the Rome Statute was the decision to grant the Prosecutor the power to trigger the International Criminal Court’s (ICC or the Court) jurisdiction in the absence of a state or United Nations Security Council referral. To guard against the abuse of this power, the Prosecutor was granted the power to initiate investigations proprio motu subject to a caveat that the decision to initiate investigations will be reviewed by the Pre-Trial Chamber (PTC) pursuant to Article 15(4) of the Statute. The interpretation of this provision came under the spotlight in the situation in Afghanistan where a turf battle between the Prosecutor and the PTC over the control of Prosecutor-initiated investigations emerged. While the Appeals Chamber’s decision to authorize investigations in Afghanistan gave a lifeline to the Prosecutor’s power to initiate investigations, it also raises questions regarding the extent of the PTC’s powers vis-à-vis the Prosecutor’s decision to initiate investigations. This article argues that the Appeals Chamber erred in its finding that the PTC has no review powers over the Prosecutor’s decision to open investigations. It further argues that the Appeals Chamber erred in its determination of the factors which the PTC must take into account when it considers the Prosecutor’s request to initiate investigations. The article argues that the decision undermines the balance of power between the Prosecutor and the PTC which was an important consideration for some states when they agreed to be part of the Rome Statute. The article also contests the Prosecutor and the Court’s interpretation of Article 18 of the Statute.

This article focuses on the challenges of ‘long-delayed’ prosecutions, that is, criminal prosecutions that begin decades after the conflict, using the experience of the International Criminal Tribunal for Bangladesh (ICT-BD) as a case study. This issue is still an insufficiently discussed topic even though such prosecutions are likely to become more common in the future. The focus of this article is mainly on the legal and broader, transitional justice challenges of long-delayed prosecutions at the ICT-BD. The article examines how such prosecutions have had a contradictory, two-fold effect: on the one hand, they have partially broken the endemic culture of impunity that was allowed to prevail for decades in Bangladesh. On the other hand, however, they have been highly controversial and may have served to deepen alienation of the Islamist opposition in Bangladesh. The article concludes that the question of whether long-delayed prosecutions are desirable for a particular society remains highly context-dependent and, in some cases, mechanisms other than criminal trials may be better suited to dealing with the past.