Starters Grant Conversation with Judges: Theoretical Reflections from judges in the international criminal justice system

The key goal of this research is to unravel whether there is alignment between (i) the legally constituted role of the judge as Law Maker, (ii) how the judge’s role as Law Maker is implemented in practice, and (iii) what the normative aspiration or direction is in terms of the role of the judge as Law Maker in the field of international criminal justice.

The hypothesis is that there is misalignment between the legal limitations in force that curb judicial discretion and the role of the judge as Law Maker on the one hand and the way in which judges have in practice taken up a role as Law Maker and broadly shaped international criminal law on the other hand. This research proposes (i) to examine the legal framework through desk research, i.e. a focused literature study on judicial discretion and a case law analysis selecting jurisprudential debates to be discussed in interviews with judges; (ii) to conduct a argumentative discourse analysis (ADA) of selected policy documents in order to unravel what the dominant narrative is on the normative direction is that the ICC as a judicial institution and ICL as a field wants to take, (iii) to undertake interviews with judges that have worked in the international criminal justice sphere to provide an insider perspective on the role of the judges in this domain. This mix of methods allows to measure the alignment or misalignment in relation to the selected jurisprudential debates where the judicial discretion has played a role and judges have been said to act as Law Maker. The project seeks to reflect upon whether realignment is necessary and why.