The Impact of Separate Opinions on International Criminal Law

94 Pages Posted: 11 Mar 2021 Last revised: 19 May 2021

Date Written: February 23, 2021

Abstract

Dissents have had a tumultuous history in national and international courts throughout the world. Initially reviled, dissents have come to be a well-accepted, even praiseworthy, component of the American judicial system, and they have traversed the same trajectory in other countries as well as in international courts and tribunals. Particularly noteworthy among international courts are those created to prosecute perpetrators of mass atrocities, such as genocide, crimes against humanity, and war crimes. And nowhere are dissents more common than in these mass atrocity courts. Yet, as prevalent as these dissents are, they have received virtually no scholarly or practical attention. Only a few articles consider international criminal law dissents, and these praise them for enhancing the legitimacy of the international criminal tribunals. This article, the first in a series, launches a comprehensive empirical treatment of international criminal law separate opinions. The foundation of this project is my careful review of every separate opinion in every Trial Chamber and Appeals Chamber judgment at the four, core international criminal tribunals. My fine-grained assessment of these nearly 300 separate opinions provides a solid basis for my normative conclusions, conclusions that call into question the claims of non-empirical legal scholarship on separate opinions. As the first component of a larger project, this article makes two substantial contributions: First, it lays the foundation for the remainder of the project by providing core information and statistics about international criminal law’s separate opinions. Second, the article inaugurates the project’s normative analyses by empirically assessing one of the most common claims made by proponents of separate opinions: that they help to develop the law. This article employs a variety of empirical methods to evaluate that claim, including citation counts and a painstaking content analysis of the separate opinions, among others. Each of these analyses suggests that international criminal law’s separate opinions, though numerous and voluminous, have not been an influential force in developing international criminal law.

Keywords: dissents, separate opinions, international criminal law, legitimacy, impact on caselaw

Suggested Citation

Combs, Nancy, The Impact of Separate Opinions on International Criminal Law (February 23, 2021). Virginia Journal of International Law (Forthcoming 2022), Available at SSRN: https://ssrn.com/abstract=3801110 or http://dx.doi.org/10.2139/ssrn.3801110

Nancy Combs (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3830 (Phone)

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