* Published as part of the 2023 CoI conference: 'Towards just institutional approaches to conflict prevention and resolution' *
Domestic judges are being “pushed out” from the Supreme Court of Argentina recently. In 2021, Judge Elena Highton de Nolasco renounced her permanent position at the Supreme Corte of Argentina (La Nacion 2021). International Judge Raúl Zaffaroni – who was formerly sitting at the Inter-American Court of Human Rights (Bio) – dramatically stated that “We are running out of court" (La Nacion 2021), referring to the fact that the number of justices within the Supreme Court of Argentina had been drastically reduced in the past years. The next in line to be “pushed out” from the Argentinian Court is Judge Juan Carlos Maqueda, who is serving at the Court for more than 50 years, and is currently answering a process of parliamentary commission of inquiry (La Nacion 2023). With these ‘upheavals’ against courts, one my start to question: what is the role of domestic judges in times of crises and democratic backsliding?
Setting the stage for cooperation
Domestic and international judges are constantly interacting as social actors. But what happens when these judges participate in international decision-making and bring “home” the knowledge that they have acquired? This the story, for example, of Argentinian Justice Carmen Argibay. Judge Argibay participated in two different international tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery (University of Buenos Aires, Interview and Bio). What is remarkable about this is the fact that she brought home some of the international practices. In fact, former president Nestor Kirschner later appointed her to the Supreme Court of Argentina in 2003. Interestingly, she did come back home directly applying some of the knowledge that she acquired in these international tribunals.
One of her famous quotes was "I can separate what is justice from what is revenge" (in Spanish, "Puedo separar lo que es justicia de lo que es venganza" - La Nacion 2007) – which does not necessarily indicate that she was in favor of unrestrictive accountability for crimes against humanity. She was always balancing between individual rights and democratic values, with a strong liberal inclination. Judge Argibay sided with her peers while approving the overturn of the amnesty laws - "obediencia debida" and "punto final"(i.e. Case Simon, Argentina, June 2005, Separate Opinion p. 180). But she did not always think that elderly dictators should be incarcerated despite their late age, according to evidence from her former clerks.
Although Judge Argibay did not live enough years to see how courts started to cooperate all over the globe, her story resembles the story of other judges. For example, Judge Antônio Augusto Cançado Trindade (Bio) is also known for his philosophical – and sometimes even controversial – separate opinions and decisions. He developed the concept of the right to a project of life in one of his famous international cases before the Inter-American Court - Case of the "Street Children " (Villagran-Morales et al.) v. Guatemala 1999 – where he emphasized in his concurring opinion that “the victimized children were already deprived of creating and developing a project of life and even to seek out a meaning for their own existence” (Joint Concurring Opinion Judges C. Trindade and Abreu-Burelli, p. 61). This judicial concept on the “project of life” was imported and used by domestic judges at the Supreme Federal Court of Brazil to approve the same-sex marriage in 2011 (ADPF 132 and ADI 4277). Views on his jurisprudential approach are divided. Andrea Bianchi emphasizes how “Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he seats and, more generally, the epistemic community of international lawyers”, and he states that “how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated” (EJILTalk, Bianchi 2012). Although controversial and non-traditional are attributes easily associated to him, several scholars have publically emphasized the novelty of his ideas.
Structural changes and outliers judges
But what do judges like Judge Carmen Argibay and Judge Cançado Trindade have in common? They are “outliers” – judges that push the boundaries of their home institutions for structural changes, fostering accountability. By pushing the boundaries and producing creative decisions, they also interfere in how coalitions inside the courtroom are formed. For example, their peers are not always willing to undertake their opinions lightly or to blindly agree with them. In more radical examples, peers can use the idea of the outlier judge not immediately but several years later – when the court had the opportunity to digest these new ideas. Or, alternatively, outlier judges may find significant support amongst their peers, as it is the case of the Supreme Court of Argentina from the period of 2004-2007, when 4 out of 7 judges frequently agreed while changing crucial domestic policies to hold dictators accountable. Outlier judges are controversial and innovative, and they may find more or less support among their peers. The term “outlier” in this context relates to a certain extend to Ezequiel Gonzalez-Ocantos and Wayne Sandholtz ideas (Gonzalez-Ocantos and Wayne 2021).
Fasting forward several years later, one can note that outlier judges shape the contexts and institutions in which they participate. As social actors, their attitudes become intertwined with the (i) influences from their peers within the courtroom and (ii) with their past experiences in other courts (whether domestically or abroad). Outliers will tend to take a more liberal position (rather than conservative position) with regard to a set of policies, producing an inherent change at the institutional and even societal levels. To make all these processes even more unreachable, scholarship in different fields tend to dissociate between how domestic judges operate within the court’s structure – hence, formal structure of legal proceedings and processes – and the macro structure of the international system, which presupposes accountability that goes beyond the individual level reaching for systemic change (“structural accountability”). Scholars foresee judges’ operations either in domestic or international contexts – separately – without accounting for judges’ interactions with one another at the domestic and international courts (and vice-versa), or from one international court to another. In other words, networks, and internal coalitions are all factors that contribute to accountability. This is the case regardless of whether one is thinking about structural levels of accountability based in the deprecation of unfair solutions by international institutions or about interactional (or individual) levels of accountability, such as the indictment of individual perpetrators of crimes against humanity (i.e. the period of 2004-2007 in Argentina).
Expanding the research agenda on the study of courts
In summary, outlier judges have a role while shaping the views within the courtroom, shaping the structure of the domestic or international courts. Both Martti Koskenniemi and Andrea Bianchi (AJIL Unbound, Bianchi 2017) have highlighted the idea that “most international institutions have a ‘structural bias’ that makes them prefer certain normative outcomes or distributive choices to others”. In this context, I would slightly disagree on the statement that judges would attempt to “acculturate” the epistemic community of international lawyers, as previously stated by Bianchi. Judges have agency and they are capable of influence the external community with their decisions, but it is challenging to empirically validate traces that demonstrate clearly whether international judges directly influence the epistemic community of international judges, or if it this happens the other way around. Other scholars are currently asking similar questions and international law scholars will need more evidence before conclusion or expanding these claims. At the same time, structural biases of courts – and the judges' mindset – as emphasized by Bianchi, may “converge at defending the social status quo, a particular order that is not naturally established but socially constructed and legally justified” or contribute to gradual institutional change (Silva 2020). This blogpost is based on more than 60 semi-structured interviews with domestic judges, clerks and other state officials in Latin America (between the years of 2016 and 2018) and additional evidence gathering (such as participatory observations) during the year of 2023.
Caroline L. Silva, Lecturer at the Institute for the Study of Human Rights Columbia University