Dissenting on Genocide: The Impact of Separate Opinions on International Criminal Law

Abstract

Dissents have had a tumultuous history in the United States and 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 reflexively praise them for enhancing the legitimacy of the international criminal tribunals. This article takes issue with that claim, maintaining that it has no empirical basis. To prove that point, 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 go against the grain of decades 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 points to the same conclusion: international criminal law’s separate opinions, though numerous and voluminous, have had minimal impact on the development of international criminal law.