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September 21, 2023

Judgment Drafting: International Criminal Law Practice Project

Executive Summary

Due to the size and complexity of ICL cases, the judgment drafting process differs significantly from methods and procedures used to draft judgments in domestic proceedings. It requires a different approach to organization, planning, and preparation. The identified challenges and problems with crafting an ICL judgment are numerous, and the judgments are often criticized for taking too long to draft and for being too lengthy.

Judgment drafting in ICL involves the judge’s and the Chamber’s legal team(staff), which could consist of anything between two to fifteen legal officers and interns, and in exceptional cases even more. As a function of the long duration of the drafting process and unavoidable staffing realities, the size and composition of the Chamber’s legal team tend to change throughout the judgment drafting process. The drafting process starts early. Trial judgment drafting often begins well before final arguments and sometimes before all the evidence has been heard. For appeal judgments, the drafting process starts before the appeal briefing has been completed. There are different stages to judicial drafting, and different sections of the judgment may therefore be drafted at different times and later combined to create the full judgment. In international criminal tribunals, judgments are often hundreds of pages, sometimes more. For trial judgments, length is also impacted by relevant Appeals Chamber’s rulings on what constitutes “a reasoned decision.”

The standards set out in this publication distil the best practices in the field of international criminal law. They are intended for use by practitioners in the criminal investigation, prosecution, defense, victim representation, and/or adjudication of cases of atrocity crimes as well as similar cases of mass human rights violations. While directly applicable to judgment drafting in international courts and tribunals, the practices are also relevant for practitioners at national courts hearing or adjudicating international or transnational crimes.

As a secondary matter, policymakers and diplomats who are involved in the field of international criminal justice at the international or domestic levels may also find this publication useful. For those who study or oversee the work of the International Criminal Court, or are contemplating the creation of new hybrid courts or domestic units and judicial chambers focused on atrocity crimes, considering the process of judgment drafting may help determine or shed light on the staff, system, financial, and other resource needs of judicial chambers and the broader institution.

Read the full report here

Disclaimer: The views expressed herein represent the opinions of the authors. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. The views expressed herein also do not necessarily represent the views of any individual members of the Steering Committee or Council of Experts, nor their employers.