The Power of the “Invisible College”: Legal Academics in International Criminal Law

Abstract

How important are legal academics for the interpretation of international criminal law? Since the establishment of the ad hoc Tribunals, it has long been acknowledged that international courts and tribunals have significantly developed international criminal law through their decisions. Less is known, however, about the role legal academics play in the interpretive process in international criminal law. This article argues that in international criminal law, academic writings are more important in the judicial decision-making process, and more generally for the practice of legal interpretation, than a conventional sources approach suggests. Using a mixed-methods approach, it combines a quantitative analysis of the sources cited in over 100 judgements delivered by the International Criminal Court (ICC), the ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC) on the law of war crimes with insights gained from over 20 in-depth, qualitative expert interviews with international judges and legal staff at these courts. The article challenges a conventional understanding of the sources of international criminal law, and concludes by using these new empirical insights to reflect on the responsibilities of legal academics in international criminal law.

Biographical Note

Nora Stappert is a final-year DPhil candidate in International Relations at Pembroke College, Oxford University. After graduating with a BA in Politics and Law from the University of Münster, she completed the MPhil in International Relations at Oxford and the Master of Studies in Law (MSL) program at Yale Law School. Her research focuses on the intersection between international law and international relations, the role of international criminal courts in world politics, and legal interpretation and the development of normative content. Nora is currently an Associate Lecturer at Oxford Brookes University, where she teaches IR theory, human rights, and international history.