I’ve been thinking a lot about how the concept of precedent functions at international tribunals. The issue is of perennial concern in the domestic context, but gets even more complex in the international context. Let me explain.
The US Supreme Court recently granted cert in the University of Texas affirmative action case, Fisher v. University of Texas. This will give the court the opportunity, if it wishes, to significantly narrow or even overrule the court’s leading precedent on the issue, Grutter v.Bollinger, the affirmative action case arising out of Michigan.
How beholden will the Court be to Grutter? This is binding precedent for the court, although the court is free to change its own precedents. And plenty of the court’s current members were not on the Supreme Court when it decided Grutter. What prevents them from simply voting with their conscience and as an issue of first impression? Well, stare decisis, or the abstract legal norm that favors stability in the law and a presumption in favor of prior precedent. As my colleague Mike Dorf has noted, Justice Kennedy accepted Grutter as precedent in Parents Involved v. Seattle School Dist. This suggests that, at the very least, Kennedy will not be cavalier about overruling Grutter.
The issue is a little bit more complicated at international criminal tribunals, which have a unique structure. At the ICTY, ICTR, and ICC, for example, decisions are rendered by panels of three judges each, both at the trial and appeal level. However, unlike the circuit-level Courts of Appeals in the US, there is no possibility of en banc review by all appeal judges. That means that a litigant can win or lose a case depending on the views of the judges on their appeal panel, and they have no opportunity to ask the full slate of appeals judges to rehear the case.
This creates a great risk of disharmony and conflict. One panel might rule one way on a matter of law, and a second panel might rule differently, and so one. With no opportunity for “super-appellate” review as Gideon Boas calls it, the result would be too much uncertainty in the law.
As it happens, I don’t think there is a great level of disharmony at the ICTY and ICC. That’s because the hypothetical second and third panels aren’t as aggressive as they might be in disagreeing with the first panel. In other words, they treat the rulings of the first panel as having great precedential value, even though it only stems from three judges whose views might not be representative of the other appeals judges. So the views of a small minority of judges effectively bind the actions of a larger number of judges who might not agree with them, but are reluctant or hesitant to overrule them.
This result is even more surprising given that international tribunals, like their civil law counterparts, do not formally recognize the doctrine of stare decisis, which is a common law principle.
But whether they formally recognize it or not, it seems to me that something very much like stare decisis is at work at the international tribunals, and the need for stability and reinforcement in the law is treated as a prime concern, though only implicitly, i.e. this value is rarely expressed in the judgments. But you see it, in my view, every time an appeals chamber follows established ICTY precedent even though the judges on the panel have privately expressed some skepticism about it.
A prime example is the Stakic case at the ICTY. The Trial Chamber went to the trouble of not applying Joint Criminal Enterprise (JCE) in its Judgment, and instead applied co-perpetration based on Roxin’sControl Theory of Perpetration (a doctrine that has now greatly influenced the ICC case law). On appeal, an ICTY Appeals Chamber rather summarily dismissed the Trial Chamber’s attempt at judicial innovation. Instead of dealing with the underlying merits of JCE vs. co-perpetration as a matter of law, the Appeals Chamber just basically reiterated that JCE was settled jurisprudence of the ICTY. That sounds awfully like stare decisis to me, even if they don’t call it that.
By the way, an American colleague of mine asked me why international criminal tribunals do not allow en banc review on matters of law. My answer? Because the ICTY Statute and the Rome Statute do not allow it. Yes, but why not he asked again? I didn’t really have a good answer for him.
Maybe one of my readers who was at Rome for the original ICC negotiations can enlighten me?