The Significance of Institutional Culture in Enhancing the Validity of International Criminal Tribunals

When considering the validity of international criminal tribunals, focus is typically and appropriately upon areas of substantive law and procedure and questions of prosecutorial policy. However, to the extent that it is within the capacity of judges to address and resolve challenges to the validity of the institution, in order for judges to formulate and implement effective solutions to those challenges it is imperative that an institutional culture is cultivated that is conducive to those ends. This paper explains the relationship between judicial culture and institutional legitimacy, and highlights how recent jurisprudence of the International Criminal Court (ICC) suggests that there is a need for the adoption and implementation of measures to promote the development of a robust institutional culture conducive to resolving the challenges faced by the ICC.


Introduction
Different factorslegal, political, moral and philosophicalmay give cause to question the validity of the ICC and the international criminal justice enterprise. Other contributors to this collection address many of those. Some fallto varying degreeswithin the capacity of ICC the particular decisions highlight the relationship between the internal institutional culture and the institution's external legitimacy, and through them, we can see how defects in the strength of collegiality can have negative consequences upon the validity of the institution.
It may be expected that, having identified a (potential) problem, recommendations or suggestions concerning how to address that problem will follow. While it may be possible to look to other judicial institutions to identify examples of best practice from which the ICC may learn as it develops its own culture, caution must be exercised before transplanting those practices into the context of the ICC. Thus, this paper argues that the responsibility for determining which cultural practices are appropriate for the ICC lies squarely upon judges within the institution itself. However, for reasons that are explained, it is imperative that this responsibility is discharged if the Court is going to maximise its credibility as a permanent authority on the international legal and political landscape.

Institutional Culture: Collegiality
For the purposes of this analysis, 'culture' consists of the values and norms, practices, attitudes and opinions 'that are meaningful to a group of people … and which allows them to carry out their collective lives in relative order and harmony'. 5 Thus, culture can have both behavioural and 'ideational' aspects; it can include formal practices, traditions or procedures and it can include more substantive values and norms. 6 By definition, the specific attributes of the culture within any given institution will have a direct impact upon the day-to-day effectiveness and efficiency of the activities undertaken therein and pursuant to the overall aims and objectives of the institution. participant in the process. 16 In sum, collegiality enhances the rationality of decisions reached, thereby strengthening their perceived quality and ultimately their legitimacy and that of the institution that renders them. 17 As to the specific claims regarding the importance of collegiality to vindicating fair trial rights, collegiality has positive effects upon the independence and impartiality of decision-making.
From the perspective of impartiality, the collegial form of decision-making requires a process of deliberation that neutralises the effect of individual partiality by reorienting deliberation towards the formation of a general or objective decision of a disembodied institution rather than of a collective of individuals. 18 By contrast, 'independence' is externally oriented and concerns the ability of decision-makers to make decisions 'without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason'. 19 Institutionalised collegiality shields decision-makers from pressures from external forces. 20 At the institutional level, a single judge may be more susceptible to external pressures that may improperly influence their decision-making, whereas a collegial body is better equipped to withstand any such pressure. 21 At the individual level, the principle of collegiality safeguards the freedom of individual judges to arrive at a decision on behalf of the court or tribunal. It does so by, in essence, distributing or diluting the responsibility severally across the members of the court or tribunal for decisions likely to be unpopular or to displease rather than placing the responsibility of that decision on the shoulders of a single judge. 22 16 Ibid., p.18 translated by the author. 17 Ibid., p.16 translated by the author. 18  conception of collegiality, this conception of collegiality has implications for the quality and legitimacy of decision-making by the collegial body. Edwards described collegiality as a synergistic force that enables individual judges on a multi-judge panel to come together and to arrive at a decision that is of 'greater value' than any one of their individual 'predilictions in decision making'. 26 When present a culture of collegiality 'helps to create the conditions for principled agreement, by allowing all points of view to be aired and considered '. 27 Thus, the rationale for the cultivation of a culture of collegiality is clear. Theoretically it is perceived to have a positive impact upon the legitimacy of a judicial institution. For the purposes of this paper, legitimacy can be described as the 'acceptance of a body by its constituency'. 28 As explained by Antonio Cassese, acceptance of an institution is important because with it, it 'may obtain respect for, and compliance with, its commands without resort to force'. 29 Owing to the decentralised nature of international law, the juridical power of international courts and tribunals (the 'capacity to administer and enact the rules of procedure and norms and the motivational intent to secure and preserve the governing values, principles, and norms of the societal order') 30 is dependent upon cooperation by dominant actors (typically states, but increasingly non-state actors) and their perceived legitimacy. 31 There are a variety of different bases for acceptance, and thus legitimacy, and collegiality as described in this section affects the acceptance of the institution and its decisions in a number of ways. The form of collegial decision-makingthat is, that it requires the participation of multiple decision makers in the deliberative and decision-making processcan strengthen the representational legitimacy of the institution and the due-process legitimacy of the institution (by promoting the 26  independence and impartiality of decision-making). However, as explained in this section, the impact of collegiality is not limited to formal grounds for legitimacy: both the principle of collegiality and the ideational or behavioural conception of collegiality have positive effects upon the substantive quality of judicial decision-making and judicial reasoning that is the outcome of the process.
To conclude this section, it can be said that the cultivation of a culture of collegiality within the judicial chambers of the ICC is one way in which the Court's judges can enhance the likelihood that both the Court as an institution and its individual decisions are accepted as legitimate. The following section will first consider the extent to which the existence of collegiality is evident, and second will highlight how the jurisprudence of the Court can give reason to question the strength of collegiality. In the course of doing so, it will explain how these particular instances demonstrate the manner in which weaknesses in collegiality can However, as in the context of the Pre-Trial Chamber, decision-making authority canin regard to some types of decisionsbe delegated to a single judge acting on behalf of the Chamber. 32 Recalling Waters' additional characteristics of collegial decision-making bodies, the composition of the ICC is, in principle, based upon expertise. 33 However, the ICC Statutelike that of other international dispute settlement bodiesadopts a laissez faire approach to stipulating the level of experience and what constitutes 'expertise', deferring to the qualifications for high judicial office required by the national jurisdiction of origin of each judge. 34 In turn, this provides for a high degree of variance in the professional backgrounds of judges. Like that of other international courts and tribunals, the ICC Statute stipulates that the composition of the Court should be representative of the principal legal systems of the world, 35 with the ICC Statute further requiring an equitable geographical distribution of judges and that the Court's composition reflects a fair gender balance. 36 These criteria for selection must be complied with in addition to the qualification criteria. However, in practice the cumulative effect of all these factors along with the politicised process of selecting judges means the level of experience and expertise of ICC judges as appointed is variable, and the impact of these factors upon the quality of the judiciary has been the subject of concern. 37 While the appropriateness of these diversity requirements is not questioned, their implications for the strength of behavioural collegiality among judges need to be acknowledged. At the very least, such diversity creates a need for concerted practices and policies designed to inculcate behavioural collegiality to overcome the differences between judges. At the same time, as Section 4 will explain, those differences can themselves limit the range of appropriate policies likely to be effective in promoting behavioural collegiality that are available to the ICC. For now, however, it suffices to note that formally speaking the composition of the ICC possesses the foremost qualities of collegial authority when delegated to a multi-member organisation. The Chamber decided, by majority, that based on the remaining evidence available there was no case for the accused to answer. Thus, it decided to vacate the charges against the accused and to discharge the accused. 40 However, in an effort to ensure that the door to future 39 Ruto and Sang, supra note 4. 40 Ruto and Sang, supra note 4, p.1. proceedings against the accused in connection to the same situation was not closed, the dispositive paragraph included the observation that the discharge of the accused was 'without prejudice to their prosecution in the future'. 41 Judge Herrera Carbuccia, dissenting, would have rejected the defence request and would have allowed the case proceed to trial. 42 While the Trial Chamber's decision raised a myriad of substantive and procedural legal issues Thus, for decisions of the Trial Chamber to be legal, there must be a single decision of the Chamber that includes the 'full and reasoned statement' of the basis for that decision. Contrary to this, the impugned Decision consisted of a bare statement outlining the majority conclusion that is, the vacation of the charges and discharge of the accusedwith reference to the separate opinions of the two judges who supported that conclusion for the reasons supporting 41 Ibid.  Black-letter analysis aside, from both the formal and behavioural perspectives, the decision of the Court and the fact of its apparent inability to arrive at any level of consensus upon the legal basis for the court's ultimate disposition suggests a breakdown in the process of deliberation. 48 On one level, it does appear that the procedure of majority decision-making consistent with the formal conception of collegiality was followed. Similarly, it is evidentby the fact that each judge issued a detailed individual opinion setting out their individual rationale for voting in favour or against the dispositionthat each individual vote was rationally motivated. 49 However, it cannot be said that the decision of the Chamber represents a rationally motivated consensus, 50 since the deliberations of the Chamber failed to achieve even a minimum degree of consensus upon the basis for its conclusion. Moreover, that each of the judges individually wrote extensive opinions but failed to come together to construct any form of reasoned opinion for the Chamber suggests a weakness in the sense of common endeavour or esprit d'corps that would seem to underpin the impetus towards unanimity and which lies at the heart of the cultural conception of collegiality.

Behavioural Collegiality
It may be argued that to the extent that there was a breakdown in the collegial culture and process with regard to that particular decision, the account of that breakdown presented here is exaggerated. 51 After all, the opinions of the majority judges reveal that there was a convergence in opinion between the judges on a majority of issues: they agreed that on the basis of the evidence before them, and owing to the witness interference that had occurred around the case, there was no case for the two defendants to answer. Moreover, they both agreed that the charges Perhaps this is an isolated incident, attributable to the exigencies of the particular case or the relationship between the particular judges in question. However, looking to the future, lessons can be learned from this situation. Owing to the very nature of the Court's mandate, ICC judges can expect to deal with 'hard cases' that raise challenging issues, legally and politically. In this particular instance the substantive outcome of the Chamber's decision was to the satisfaction of those hostile to the Court. But in future cases it is inevitable that decisions will be made that will be unpopular among powerful stakeholders in the Court's activities. In order to have a chance at withstanding the external challenges to its legitimacy that this environment brings, it is imperative that the judges are able to, perhaps, put aside their own differences, in the interests of the Court's authority.

Procedural and Evidential Problem-Solving: Katanga and Ngudjolo
Whereas the previous example was used to highlight the importance of a strong culture of collegiality in order to effectively buttress against political and/or external threats to its legitimacy, this section will touch upon the importance of a strong culture of collegiality if the Court's judges are to develop a coherent procedural regime that is effective and efficient.  54 Ibid., p.6. 55 Ibid., p.7. 56 Katanga, supra note 2. 57 Ngudjolo, supra note 3. the problem with these opinions does not lie in fact that disagreement was expressed, but rather in the manner in which that disagreement was expressed.
In Ngudjolo, Judges Tarfusser and Trendafilovacoming from the holistic school of thought accused the Trial Chamber in its decision upon which they were hearing the appeal as having 'abdicated its paramount responsibility to properly manage the conduct of trial proceedings and ensure their fairness'. 58 They concluded their opinion with the statement that the majority's The disagreements between the judges in both Katanga and Ngudjolo arise out of fundamentally different conceptions of the role of the judge in criminal proceedings, ultimately rooted in differing views of the character and purpose of the criminal trial process. The ICC is a sui generis blend of legal traditions, with identifiable traits from both common law and civil 58 Ibid., Joint Dissenting Opinion of Judges Tarfusser and Trendafilova, para.69. 59 Ibid., para.69. 60 Katanga, supra note 2, Dissenting Opinion of Judge van den Wyngaert, para.7. 61 Ibid., paras.16-49. 62 Ibid., para.15. law jurisdictions and both inquisitorial and adversarial traditions. 63 This blend was intentional as well as necessary to secure the adoption of the Statute; the representativeness of different legal systems and cultures one basis for the institution's legitimacy. As such, disagreement between judges was a predictable and inevitable consequence of the structure of the Court as designed by the drafters of the Rome Statute. Whereas it may have been (and may still be) expected that the judges would resolve those contradictions and ambiguities through deliberations upon the interpretation of the Statute, the reality has been that the Statute has entrenched the divergence of judicial views by lending support for all positions. 64 In order to transcend the evident disagreement between judges and to develop a coherent procedural and evidential regime, whether that regime is defined by a pluralism to accommodate such differences, or whether a unified regime is developed, the procedural collegiality manifested in the structure and composition of the judicial chambers must be infused with a strong ethos of collegiality that governs the interactions between judges on a practical basis.

Collegiality and the Language of Disagreement
The two decisions discussed in the previous subsection highlight another important dimension to the relationship between collegiality and institutional legitimacy, as appraised by external actors. 65 Until now, the focus has been upon the culture of collegiality manifested in one particular deliberative sphere, that is, the internal deliberative context. However, when individual judges are permitted to publish written opinions alongside the judgment or decision The second reason is one of form and concerns the language with which individual judges communicate their views. In order to understand how uncollegial language can undermine judicial authority, it is necessary to appreciate the importance of language to establishing and consolidating judicial authority. Scholars of the rhetorical nature of law draw to our attention how courts 'create by performance [their] own character and role and [establish] a community with others'. 70 They argue that how courts (and by extension, individual judges) say what they do matters as much as what they say. 71 For example, Peter Goodrich has linked the use of legal rhetoric directly to the capacity of courts to induce the 'cooperation and accommodation of social and institutional forces whose real affinities are antagonistic and conflictual', and thus fulfil their dispute resolution function. 72 Thus, language is not 'merely' cosmetic, but has substantive implications.
In light of this, it becomes easier to appreciate the criticism of the use of particular rhetoric by judges when expressing their disagreement with their colleagues. For example, critics of dissentient practice by judges of the International Court of Justice (ICJ) appear to be less concerned with the revelation of disagreement between the judges of the Court or even the substantive nature of that disagreement. Rather their objections focused upon how language that 'attacked' or was 'critical of' the decision of the Court was considered 'not worthy of members of the highest judicial tribunal' and risked undermining the prestige and dignity of the Court. 73 Even those judges who have exhibited a favourable attitude towards dissenting and separate opinions have maintained that there is 'no excuse for intemperateness. It is possible to make a protest with vigour and yet with the elegant serenity customary in learned judicial discourse'. 74 Writing from a domestic law perspective, William Ross has described how 'civility is one of the hallmarks of the judicial temperament' such that judicial incivility is more concerning than incivility within other branches of government. 75 Going further, in the context of the ICJ, it has been suggested that the use of polite and courteousand ultimately collegial -language by judges is an aspect of the qualities of 'integrity and propriety' that are implicit in the requirement that ICJ judges be 'persons of high moral character'. 76 With this in mind, we can consider the rhetoric of dissent utilised by the dissenting judges in Ngudjolo and Katanga canvassed in Section 3.2.2. This rhetoric may be understood as not only a symptom of the breakdown in the collegial process as discussed previously, but as this subsection has explained it can also itself be a cause of further deterioration in the collegial culture.
This sub-section has also explained how the use of such robust language to express disagreement can have a directand negativeimpact upon the perceived legitimacy and, in turn, authority of the judicial institution. While the present author would not go so far as to stipulate what is or is not appropriate judicial rhetoric in the context of the ICC system, at the very minimum it is nevertheless important to acknowledge the consequences of the choice of language used by judges.

Developing Collegiality: Lessons from Elsewhere?
If a strengthened culture of collegiality at the ICC can enhance the legitimacy of judicial decision-making (both as a matter for form and quality), it might be asked what measures ICC judges can adopt in order to deepen the culture of collegiality at the ICC. Culture is an inherently contextual and complex phenomenon: 77 the cultivation of any culture, institutional or otherwise, is an organic process that takes time. This does not mean, however that the substantive attributes of a culture are beyond the control of actors; policies and practices can be undertaken in order to promote the cultivation of a culture with specific attributes.
Accordingly, it might be considered useful to reflect upon how other judicial institutionsfaced with similar challengeshave promoted the culture of collegiality, and it might be asked whether it is appropriate to 'transplant' 78 any practices and policies adopted by those institutions into the ICC context.
One institution to which it may be tempting to turn for inspiration is the ICJ. Like the ICC, the ICJ judiciary is comprised of judges from diverse professional and cultural backgrounds. As with the ICC (and perhaps even more so), the political, geographical, professional and epistemological diversity of the ICJ judges is lauded as one of its principal legitimising attributes. 79 The inevitable disagreement between judges that results from these viewpoints is manifested in the Court's jurisprudence, which is characterised by the plurality of opinions that invariably accompany the judgment of the Court. Yet, over the course of the ICJ's 95-year history both in its current form and in its previous incarnation as the Permanent Court of International Justice, the ICJ has developed certain formal practices designed to cultivate robust collegiality. However, the ICJ is not taken to be the perfect example of collegiality in practice. It is certainly likely that divisions and internal politics may affect the nature and outcome of internal deliberations at the ICJ and there may well be uncollegial practice. Moreover, as the following discussion will explain, the suggestions offered are not without their own difficulties if considered from the perspective of the ICC.
The first policy might be to institute a more formalised process of deliberation and decisionmaking; one that supplements that formal conception of collegiality embodied by the Rome Statute's provisions governing the structure of decision-making. At the ICJ, the formal internal judicial procedure requires individual judges to produce and circulate written 'notes' that explain their views on the case at hand once all submissions by the parties have been made and preliminary oral deliberations have been undertaken. 80 These written notes in turn provide the basis of the oral discussions and deliberations, with all judges having had the opportunity to read and reflect upon the different judicial views prior to those deliberations. 81 The process of these oral exchanges is formally structured to encourage full participation by all members of the Court, 82 with judges required, in reverse order of seniority, 83 to present to their colleagues their views on the case and to respond to questioning by those colleagues. 84 Whereas the notewriting and circulating process may encourage judges to formulate and entrench their views prior to the Court's deliberations at the ICJ, 85 the views of all ICJ judges are subject to examination and critique during the oral deliberations. Once the drafting has commenced the process of reading the draft judgment and the circulation and reading of draft additional opinions constitutes an ongoing process of deliberation, 86 whereby both the Court's draft judgment and the draft opinions are the subject of critical reflection, review and amendment in light of each other. 87 Thus, there is a rigorous formal procedure designed to require individual participation in deliberation, one that is complemented by informal discussions between judges as the formal process of the Court's deliberation and drafting proceeds.
Deliberative procedure within the international criminal tribunals is markedly different and less formally prescribed. While all judges are clearly expected to contribute to deliberations upon the cases to which they are assigned, there is no formalised procedure such as that at the ICJ compelling it. 88 Deliberations are conducted orally or through the exchange of informal notes, and once it is clear where the majority (in the absence of unanimity) lies, responsibility for drafting the Chamber's decision is assumed by that majority. 89 Whereas at the ICJ, the process of deliberation formally commences once all submissions have been made and hearings have been conducted, deliberations within the international criminal tribunalsgiven the length and complexity of the casesis an ongoing process from the commencement of proceedings before the given Chamber through to the delivery of the Chamber's decision. 90 It is for this reasonnamely, the sheer length and complexity of casesthat adopting a highly formalised approach to deliberation and decision-making such as that at the ICJ would not be practicable for the ICC. The length of ICC proceedings is already the subject of significant of deliberations. On a practical level, the internal organisational structure (as opposed to the sequencing of hearings, deliberations, decision-making and decision-drafting) might make a direct transposition of some of the more formalised processes and system of seniority from the ICJ to the ICC more difficult. The ICJ sits in plenary and therefore it is easier to enforce and reinforce these systems and procedures. By contrast, the Chamber configuration of the ICC with judges sitting in parallel to each other inevitably makes this more difficult. However, this in itself should not discourage the exploration of other options that may be more appropriate to the ICC but which serve a similar purpose.
A second strategy might be to accentuate the responsibility of the Court's President for overseeing the institution's operational culture. One former ICJ President has explained the manner in which the President can set the tone for decision-making and the prioritisation placed upon achieving consensus or unanimity. 91 In turn, depending upon the approach, this can encourage or discourage the use of additional opinions. 92 Again, the ability of the President of the Court to enforce a common culture or practice may be easier in an institution such as the ICJ where judges sit in a singular plenary configuration, of which the President is always the most senior member. 93 At the ICC, the multiple divisions and Chambers make it difficult to obtain consistency. Yet, if there were to be initiatives at the ICC to enhance collegiality, logically it would seem that the Presidency would be the most appropriate organ to drive such initiatives. 94 Another strategy suggested by Göran Sluiter might be that the ICC adopt a document akin to the ICJ's Resolution on Internal Judicial Practice, 95 designed to reinforce the formal process of deliberation, decision-making and drafting and strengthen the sense of internal collegiality and discipline. 96 While there is a general disinclination towards the adoption of a judicial codes of conduct in the context of international justice which may fuel scepticism as to the utility of such a Resolution at the ICJ in the absence of a mechanism of enforcement, 97 the process of drafting such a resolution may be of utility. Even if unenforceable, an inclusive process of drafting will raise the profile of collegiality, and the existence of the resolution may serve to remind judges and those working within the institution of the importance of judicial discipline and collegiality which might easily be overlooked in the heat of the strong disagreement.
Finally, one informal mechanism by which to encourage the development of an institutional culture is for judges (or former judges) to write about their experiences on the Court extrajudicially. There is a long tradition of ICJ judges of doing this, both as sitting judges and once they have left the Court. 98 This practice reinforces the sense of institutional culture and raises awareness of it and its importance, both internally and externally. Although judgesboth ICJ judges and domestic judgeshave addressed the subject of collegiality within the institution, it is understandable why the matter might be considered a sensitive topic to comment upon.
Judges who do write about collegiality within their institution are likely to stress what collegiality within that institutional context means, explain why it is important and perhaps highlight evidence of best practice. It is unlikely that a judge will explicitly criticise the institution or individual colleagues for uncollegial behaviour in public; in many respects that in itself would be uncollegial behaviour. However, general accounts that describe the extant institutional culture (or at least, the desired institutional culture) are valuable as they can inform potential and incoming judges of the existence and importance attached to institutional culture and collegiality within the institution that they are joining, thereby contributing to the socialisation of newcomers into the institution. 99 Once members of the Court, this body of literature provides a reminder or guidance of what culture they have joined and with what ethos they are expected to discharge their functions. At the same time, in some respects the background of ICJ judges is not quite as diverse as that at the ICC. In the most part, ICJ judges are familiar with the discipline of international lawwhether coming from academic, practitioner, or diplomatic (or often a mixture of all three) backgroundsand are therefore more likely to be familiar with the field of literature, having read the same leading journals and leading texts, for example. 100 By contrast, at the ICC, while some judges may have experience in international (criminal) law having served as counsel or as judges in other international (criminal) courts and tribunals, others may join the Court after lengthy careers as domestic criminal judges or domestic prosecutors. Accordingly, they are unlikely to be familiar with the same field of professional and scholarly literature as that of their counterparts, which may limit the effectiveness of such writings.
David Nelken has cautioned that the success of legal transplants depends on the 'relationship or the "fit" between law and society' as well as between the transplanted and the extant legal system, and the degree to which the transplanted law penetrates society'. 101 This section has showed that the same can be said when considering legal transplants in the across institutions, rather than societies. What may be learned from the ICJ's practices if policies and practices are to be developed, then the primary actorsclearlymust be the judges themselves. As a matter of preserving judicial independence and impartiality, judicial autonomy is paramountmeaning that measures affecting how judges conduct their deliberations and decision-making cannot be dictated or imposed upon judges, such as by the Assembly of States Parties. The judges themselves must undertake any initiatives undertaken to the end of strengthening collegiality. From a practical perspective, it is those who are closely involved in the process of deliberations or decision-making and who are aware of the true culture within the institution who can identify the root causes of any weaknesses in the culture of collegiality (to the extent that there are any) and to prescribe, based upon their experiences working within the extant culture, the solutions most likely to be effective in addressing those issues.

Concluding Remarks
The ICC is a young institution, and the imbedding of an institutional culture takes time. At the ICC this is particularly so, where unlike at the ICJ, judges have non-renewable terms of office thus hampering the development and retention of institutional memory. Given the age of the Court, it would be surprising if there already existed a robust institutional culturewhether that is one of collegiality or otherwise. Therefore, to the extent that there is a question-mark over the strength of the collegial norm within the ICC as discussed in this article, it can be considered not too concerning. Moreover, many of the difficulties faced, or potentially faced,