'Judicial Activism' and the International Criminal Court

Abstract

The article considers judicial discretion in decision-making of the International Criminal Court, in particular the examination of judicial activism resulting in broad judicial interpretation of the applicable law of the Court set forth by Article 21 of the Rome Statute. The article argues that one of the reasons for broad interpretation of law is the prevailing culture of judicial law making, which developed in the ad hoc international criminal tribunals and subsequently migrated to the ICC. Whereas judicial creativity at the ad hoc tribunals was largely attributed to the application of customary international law, the ICC despite the availability of detailed constitutional framework exhibits similar patterns. The article suggests that the lack of clear interpretive methodology at the ICC significantly contributes to activist decision-making.

Keywords: judicial activism, interpretation of law, sources of international criminal law, judicial creativity, development of law, ICC