Judicial Governance Entities as Power-Holders in International Criminal Justice: A Plea for a Socio-Legal Enquiry

Abstract

This chapter zeroes in on the exercise of power vis-à-vis international and special or hybrid criminal tribunals (‘ICTs’) by political-administrative bodies set up by States and international organisations, and vested with responsibility for running ICTs. In the nascent line of research into the mandates and functioning of those bodies, they have been referred to as international judicial governance institutions, or ‘injugovins’. There is at present little sociological-legal knowledge about the injugovins’ organisation, working methods, and practices. Whilst exercising authority that is invariably traceable back to States, by legal form injugovins may be organs of international organisations (such as the United Nations), other treaty-based entities (for example, the Assembly of States Parties (‘ASP’) of the International Criminal Court (‘ICC’)), or specially designated bodies composed of major donor States (for example, management committees of UN-assisted hybrid or special tribunals).Injugovins wield enormous power over the tribunals on account of regulatory, human-resources, management oversight, co-operation enforcement, as well as budgetary and financial audit functions which they perform. The tribunals’ success and viability as adjudicatory bodies to a large extent depend on how well those essential functions are carried out. The judicial governance practice is subject to mixed assessments, with the injugovins’ effectiveness, competence, and accountability having given rise to challenging questions. A clear regulatory framework, pre-existing institutional structures, and compelling means to enforce the respective duties and keep injugovins accountable are missing. If and when injugovins show a degree of indifference towards their judicial protégés and fail to set right priorities and take action at crucial moments, this typically leads to debilitating power shortages and governance gaps. On occasions, injugovins may attempt to micro-manage courts and transgress boundaries set to safeguard judicial independence, triggering power conflicts and resistance on the part of the courts. Such disequilibria often arise from the pursuit of self-interest by States within the judicial governance forums and sometimes in other settings, for example regional organisations. This chapter presents a first attempt to respond to the urgent need for a socio-legal scrutiny of the behaviour and motives of States and their collective entities in governing international criminal justice, as well as the power dynamics unfolding between them in the judicial governance context and as part of their relationships with the tribunals. The chapter provides an overview of judicial governance schemes in international criminal justice. Based on this survey of legal and institutional arrangements, the chapter offers a tentative typology of the main models of judicial governance (‘direct’, ‘envelope’, ‘diplomatic’ and ‘managerial’ models). It then takes a critical look at select aspects of the ICC’s governance scheme and brings to light some of the defining and salient limitations of the ‘diplomatic’ model. Without offering a definitive treatment, the chapter makes a plea for further sociolegal research in this domain. This perspective is indispensable for getting to the bottom of operational, enforcement, and legitimacy challenges facing international criminal justice whose resolution will be determinative for the future of the project.

Keywords: International judicial governance, governance institutions, international criminal justice, ICC

JEL Classification: K33