Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina

The role of Constitutional Courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision-making and, consequently, undermine judicial independence and impartiality. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-nationalism on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court’s decisions, we find that the judges do in fact divide predictably along ethno-national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long-term tenure does little to dampen the influence of ethno-nationalism on judicial behaviour. Moreover, our findings suggest that the longer a judge serves on the Court the more ethno-national affiliation seems to influence her decision-making. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.

Procedural Justice in International Criminal Courts: Assessing Civil Parties’ Perceptions of Justice at the Extraordinary Chambers in the Courts of Cambodia

Procedural justice advocates argue that fair procedures in decision making processes can increase participant satisfaction with legal institutions. Little critical work has been done however to explore the power of such claims in the context of mass violence and international criminal justice. This article critically examines some of the key claims of procedural justice by exploring the perceptions of justice held by victims participating as Civil Parties in the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC has created one of the most inclusive and extensive victim participation regimes within international criminal law. It therefore provides a unique case study to examine some of claims of ‘victim-centred’ transitional justice through a procedural justice lens. It finds that while procedural justice influenced civil parties’ overall perceptions of the Court, outcomes remained of primary importance. It concludes by analysing the possible reasons for this prioritisation.

An Incomplete Narrative: Prosecuting Sexual Violence Crimes at the Extraordinary Chambers in the Courts of Cambodia

This article explores the feminist critique that progress in the classification of sexual violence crimes within international criminal law has not been matched by sufficient legal enforcement. It takes the Extraordinary Chambers in the Courts of Cambodia (ECCC) as a case study, exploring the various myths, investigative failures and procedural developments that have hindered the ECCC’s effective investigation of sexual violence. The article argues that while there is a need to adopt a nuanced perspective of the many gender inequalities facing women, it remains crucial that sexual violence is adequately investigated and prosecuted, due to the normative value of such prosecutions. It concludes with some suggestions as to how the ECCC can improve accountability for such crimes, but also highlights lessons that future courts can learn from the ECCC’s failures.

Essay, The courts martial of the 1916 leaders

This website contains digital images of the 15 courtmartial files of the executed leaders. The originals, released to the public in 2001, are in the custody of The National Archives in London; the images are displayed under licence from TNA. The website has a searchable database relating to the files, which can also be browsed by name. There are also two essays, one by Dr. Fearghal McGarry on the general context of the trials, the other by Dr. Myles Dungan on their dubious legality. These are the basic records of one of the most eventful and fateful processes in modern Irish history.
Purchase of the digital images of these records was made possible by Universities Ireland, the umbrella body which promotes co-operation between all the universities on the Island of Ireland. The purchase forms part of their extensive Decade of Centenaries programme. Further details can be found at http://universitiesireland.ie/