When considering the validity of international criminal tribunals, focus is typically and appropriately upon areas of substantive law and procedure and questions of prosecutorial policy. However, to the extent that it is within the capacity of judges to address and resolve challenges to the validity of the institution, in order for judges to formulate and implement effective solutions to those challenges it is imperative that an institutional culture is cultivated that is conducive to those ends. This paper explains the relationship between judicial culture and institutional legitimacy, and highlights how recent jurisprudence of the International Criminal Court (icc) suggests that there is a need for the adoption and implementation of measures to promote the development of a robust institutional culture conducive to resolving the challenges faced by the icc.
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This article introduces a ritual theory of judicial dissent. Conventional accounts of the functions of judicial dissent, whether in the context of domestic or international judicial systems, can be grouped into three thematic categories: 'dissent as transparency', 'dissent as opposition' and 'dissent as conscience'. Leaving aside the disagreement over whether judicial dissent should be institutionalised at all, these accounts of the institutional functions of dissent are generally accepted with little dispute. Yet, while these conventional accounts may be normatively unproblematic, they fail to fully or coherently capture the mechanics by which judicial dissent operates upon institutional authority in practice. Irrespective of judicial dissent's capacity to function, or be seen to function, in the ways envisaged by doctrine, this article considers how a ritual theory analysis of dissent -with its focus on form -may supplement conventional accounts of judicial dissent.
Additional opinions—that is, dissenting opinions, separate opinions, and declarations—are, by definition, the primary institutional mechanism through which judges can express their individual views on a particular decision, as distinct from the judgment or decision proclaimed on behalf of the institution. Therefore, within the public sphere they are the principal institutional manifestation of the individual—and thus the individuality—of the judge. Consequently, for those who seek to understand the impact of certain personal characteristics upon how a judge discharges their professional functions and, in turn, the wider institutional and systemic implications of the participation of individuals bearing those characteristics, the study of additional opinions would seem a useful analytical enterprise. Using gender diversity at the International Court of Justice as a case study, the purpose of this chapter is twofold: first, to explain the relationship between diversity and additional opinions, and second, to explore the methodological potential, and challenges, that the study of additional opinions entails.
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