In the last video, we've discussed how a judgment emerges. But what makes a judgment a good or a bad judgment? And what are the main challenges? This is what we'll explore now. In a domestic setting, a judgment is typically perceived to be good if it is respected by the parties and not appealed. In international criminal justice, the reality is different. Almost every judgment is appealed by one of the parties. The benchmark is thus the quality of the reasoning rather than the rate of appeal. The actual trial judgement must be delivered in public and in writing. This is necessary to explain the reasoning, to allow scrutiny by the public, and to provide a record that can be appealed. Both the parties and the public are more likely to accept a decision if it is grounded in an objective and transparent application of the law to the facts. Judges must in particular indicate with sufficient clarity the grounds why and how they reached a decision. This includes the determination of the facts, the legal assessment, and the explanation of the assessment of evidence. Typically, two types of decisions pose problems. In some cases, a decision is problematic since the reader does not know what was decided. This is particularly troublesome if the result of a decision remains unclear. One pertinent example is the decision of the no case to answer motion by ICC Trial Chamber V in the case against Ruto and Sang. Three judges expressed three different opinions. It remained unclear by the two majority opinions whether a mistrial was actually declared. In other cases, it is clear what was decided, but the reasoning is contradictory or does not fully explain how and why it was decided. This explains why both parties have a right to appeal both a conviction and an acquittal due to errors of facts, errors of law, and lack of reasoning. What are some of the main challenges of judgments? A first core challenge is to express the scale and nature of atrocity in legal argument. Judgments are typically written in nonemotive language and may even appear rather technical. They struggle with the limits of rational argument and the limitations of language as a medium. It is uncomfortable to accept that the law is silent or incomplete in light of moral outrage. This is why the search for some form of closure creates a strong incentive to write morality into law. Where existing legal notions do not fit, there's a temptation to use legal creativity to bridge gaps and silences. In light of this, there's often only a thin line between legal interpretation and traditional development of law in key judgments from Nuremberg and Tokyo to modern atrocity trials. A second major challenge is the establishment and verification of facts. The question, who is responsible, cannot be answered without an account as to what happened. Trials require a theory or explanation of why the crimes occurred In order to establish individual criminal responsibility, but the underlying facts are often more complex than revealed through evidence and testimony at trial. The judgment is constrained by this. It relies on constructed change of casuality or fiction. It is controversial to what extent it may serve as an authoritative account of history. Some judgments have clarified historical understanding. For instance, many details of the 1995 Srebrenica massacre would be less clear without the detailed reconstructions of events in the historical Krstić and Karadžić judgement of the Yugoslav Tribunal. Other judgments are less coherent. For instance, at the Rwanda Tribunal, judgments have offered different accounts of the ethnic foundations of the conflict. Judges changed the understanding of ethnicity no less than three times in their narrative on genocide. The ICC struggled to understand the shape and strength of alliances among the diverse armed groups in the conflict in Ituri between August 2002 and March 2003. In the Katanga trial, Judge Christine Van den Wyngaert expressed doubt in her minority opinion whether the participation by the different Nigiti fighters in the Bogoro attack could be explained by an ideology of ethnic fear or hatred. A third challenge is that trial judgments address multiple audiences. The judgment is primarily concerned with fairness to the accused, but international trials are often more than trial of individuals. They have a deeply didactic function. They seek to signal atrocious offenses, to bestow confidence in the idea of public order, and to reshape a common conscience. Often, the very fact that an individual is selected for trial by an international criminal court and tribunal has a certain purpose. Unlike in regular domestic context, the fact that there is a trial might be more important than exhaustive prosecution of all crimes. Defendants are mostly tried because they held or supported specific structures of power and authority. This causes frictions that are hard to resolve through a legal judgment. International prosecutors and judges have to assess the conduct of defendants such as Milosevic, Karadzic, or Lubanga as individuals. But in the eyes of local communities, they're representatives of a specific state structure, community, or political group. There is likely to be disagreement on the outcome of the trial, whatever is decided. As we've seen by the reactions to the [Lubanga judgment, these tensions are impossible to resolve through legal reasoning alone. Judgments have to be translated into nontechnical language. They need to be explained and related to domestic discourses in order to reach local communities. What can we take from this? First, we've seen that the judgment has a special place in the criminal process. The purpose of the judgment is to give effect to the rights of the parties and to issue a verdict on guilt and innocence. But its function extends beyond this. The judgment has a deeper social function. It is meant to provide a final narrative or sense of closure that extends beyond the individual submissions of the parties. The judgment is more likely to live up to this expectation if parties and participants have the impression that they are listened to and that their claims are properly addressed in the legal reasoning. Some decisions have failed to meet this objective. Second, we've seen that each trial involves competing narratives. Each judgment is likely to cause controversy. A significant part of its acceptance is related to procedural integrity. The fact that there are separate or dissenting opinions is not bad per se. Such diversity might even strengthen the legitimacy of the judgment. The more the judgment ventures into creativity, the more it requires justification. Third, we've seen that trials struggle to confront ideology-based criminality. The final judgment may temper this. But this requires engagement with conflicting visions of history and causes of criminality. Judges cannot refrain from this, for better or for worse. The question is not whether a judgment writes history, but rather how it does it. The judgment may counter prejudices if it challenges friend-enemy clusters or the association of crime or victimhood with preconfigured collective identities such as ethnic lines. Finally, we've seen that judgments often seek to transform public opinion. At trial, some of the most direct transformative effects may occur through the experience of testimony, namely the contact and exposure of witnesses or victims to a professional justice environment. But a deepen engagement with domestic and local perception requires nontraditional means of discourse. The judgment is, at best, one intermediate factor in such a process. It may take decades until judgments produce their full impact. In the next video, we will discuss punishment. I look forward to seeing you there.
