Cupido on the Rhetoric of the Policy Requirement

by Kevin Jon Heller

I want to take a break from Libya to call readers’ attention to an excellent essay by Marjolein Cupido, a PhD student at VU Amsterdam, that recently appeared in Criminal Law Forum. Many ICL scholars focus on the rhetoric of judging at the level of law — how judges construct and narrate the law that applies in a particular case.  Very few scholars, however, take the next step and ask how judges actually apply that law to the facts presented during trial.  That is a strange oversight; as we all know, there is a fundamental difference between constructing the law and applying it.  In part, the absence of attention to how judges apply law to facts likely reflects a commonly-held belief that, unlike lay jurors, judges are trained professions who can be trusted to reliably apply legal concepts — crimes, elements of crimes, modes of participation, etc.  Personally, I’m skeptical of that belief; having spent a great deal of time studying the cognitive psychology of how jurors interpret and misinterpret evidence (see here and here, if you’re interested), I find it very unlikely that judges will apply law to facts any more reliably than jurors.

Cupido’s essay on the policy requirement in crimes against humanity, which is part of a larger project on what she nicely calls the “casuistry” of international criminal law, supports my intuition.   The ICC’s definition of crimes against humanity contains a policy requirement, while the definition used by the ICTY and ICTR does not — the existence of a policy is merely an evidentiary consideration relevant to the systematicity of the attack on the civilian population.  If judges reliably applied facts to the law, we would expect those different approaches to affect the outcome of specific legal decisions.  As Cupido shows, however, in fact they don’t:

This article argues that the debate concerning the theoretical characterization of the policy requirement as either an element of crime or an evidentiary relevant circumstance for crimes against humanity is deficient. Comparative case law analysis illustrates that this characterization does not fundamentally affect the position, meaning and scope of the policy underlying crimes against humanity in judicial practice. This can be explained by the ‘‘open texture’’ of legal rules and the factor-based character of judicial decision-making. This article aims to initiate a practical debate that evaluates the added value of a policy element on the basis of its application in individual cases.

It’s a superb essay — well worth a read by anyone interested in ICL.  I look forward to the results of the rest of Cupido’s project, and I hope that other young scholars will turn their attention to similar topics.

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