Decision-Making Patterns at the First Trial of International Criminal Court: A Perspective on the ICC

Aldo Zammit Borda, Trinity College Dublin

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CREIGHTON INTERNATIONAL AND COMPARATIVE LAW JOURNAL

Abstract

The first trials of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) resulted in convictions of the accused. This Article seeks to understand this observation by applying new institutionalist perspectives to decision-making processes of international criminal courts and tribunals. This Article argues that the first trials of such courts are affected by a learning curve and should be differentiated from other trials because of, inter alia, the novelty of the proceedings, the absence of previous jurisprudence, and the need to develop modi operandi, often from scratch. It then discusses decision-making patterns at the first trial, with reference to logics of action, and posits that, at the first trial, the logic of consequentiality is dominant, as the court would still not have determined its bounds of appropriateness, a phenomenon it terms the “first trial syndrome.” The Article concludes by applying this perspective to the first trial of the International Criminal Court (“ICC”).