A comment on why the STL Appeals Chamber should not have rendered its decision on applicable law

Over at EJIL Talk!, Marko Milanovic has posted some first comments on the decision issued by the Appeals Chamber of the Special Tribunal for Lebanon on the applicable law. He points out some interesting issues dealt with by the Chamber in relation to the definition of terrorism, or the modes of liability.

I haven't read the decision yet, but I made a comment on the procedure itself that has sparked an interesting debate in relation to the opportunity of having such a decision in the first place. You can read the debate in the comments section of Marko's post, but here are my arguments laid down in a more constructed fashion.

The Appeals Chamber was seized by the Pre-Trial Judge for it to render an interlocutory decision on a number of issues relating to the interpretation of the Statute. It should be pointed out from the outset that this procedure is not provided for by the Statute itself. It is provided for by the Rules of Procedure and Evidence, which are drafted by the Judges themselves. According to Rule 68(G):

The Pre-Trial Judge may submit to the Appeals Chamber any  preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to examine and rule on the indictment.

The procedure is laid down in Rule 176bis, which provides that:

(A) The Appeals Chamber shall issue an interlocutory decision on any question raised by the Pre-Trial Judge under Rule 68(G), without prejudging the rights of any accused.
(B) Before rendering its decision, the Appeals Chamber shall hear the Prosecutor and the Head of Defence Office in public session.
(C) The accused has the right to request the reconsideration of the interlocutory decision under paragraph A, pursuant to Rule 140 without the need for leave from the presiding Judge. The request for reconsideration shall be submitted to the Appeals Chamber no later than thirty days after disclosure by the Prosecutor to the Defence of all material and statements referred to in Rule 110(A)(i).

I have a problem with this procedure on several levels which I'll briefly expose now:

• Whatever the merits of the procedure itself, from a purely textual point of view, I have a problem with the Judges giving themselves powers that the Statute itself does not give them. For me the whole procedure is ultra vires. In relation to this, I'm surprised that the Judges were given the power to draft the RPE themselves, after the many problems that arose in the ad hoc tribunals in relation to that (ex post facto justification of debatable evidentiary rules, creation of the new offense of contempt, etc.). The ICC rightly chose a different path and I believe it should always be the case Judges not be empowered to draft their own rules. In this sense, I contest the language of the document itself. It cannot be a "decision", and the AC does not "determine" anything. It is at best a consultative procedure and can in no way be authoritative.

• Second of all, from an institutional point of view, I find this is a perversion of the system, which leapfrogs the normal judicial process. Normally, an issue is dealt with after it has gone through the several steps of the proceedings, and reaches (or not) the Appeals Chamber based on the arguments of the parties and the reasoning of the other judges. By going straight to the AC at this early stage, it does not leave room for judicial dissent and limits the scope of opposition, even if an accused can indeed appeal some of the findings. In relation to this, the argument of expeditiousness is misleading. If we follow this logic, why bother with a two-tier jurisdiction at all and not ask the AC what it thinks on everything, to avoid too lengthy a trial? Which brings me to another point: the reasoning just assumes that the AC is always right. But that is not the case. Sometimes, I think it is better for a healthy debate to arise between lower-tiered judges for the case-law to settled, like at the ICC, rather than having the AC bully its opinion from the outset. The whole procedure seems to be a be a little too autocratic.

• From a functional point of view I think it is just not the role of the Appeals Chamber to do what it did. Indeed, I agree that the Statute is a mess and needs clarification, but that does not necessarily mean that the AC should be given the advisory power to deal with that. One commentator on EJIL Talk!, Guillermo Otalora Lozano, referred to other practice by other Courts, both national and international. I quote him in extenso:

First, it is not uncommon for courts to exercise jurisdiction in abstracto. That is how many constitutional courts function in continental Europe and in my own jurisdiction in Latin America. In fact, the Italian Constitutional Court’s main vehicle of judicial review is the “question of constitutionality”, which is a legal question raised in abstracto by a lower judge. When the judge raises the question, proceedings are put on hold until the Court decides on the constitutional issue that bears on the proceedings. In Spain and Germany, parliamentary minorities may have the Courts review legislation on their constitutionality. In Colombia, some types of legislation are reviewed ex officio for constitutionality before the legislation is even enacted. In short, ex ante review is not at all exotic in judicial procedures in the world. It is not a very ‘common law’ way of doing things, but it is not really a rare thing to do in other jurisdictions. Advisory jurisdiction is also common in many international courts: ICJ, Inter-American Court of Human Rights, International Tribunal of the Law of the Sea, to name a few.

This is certainly true, but I fail to see the relevancy in the current case. The Courts in Guillermo's examples are specifically set up for this purpose. And none of them are seized on the interpretation of the law, but rather on its constitutionality, or more generally its conformity with some other norm. I'm no comparative law expert, but I'm unaware of any system where a lower-court would actually go to a higher chamber to ask it to help it for the interpretation of a law (except the ECJ question préjudicielle, but this is very particular and was specifically set up for the interpretation of EU law). The AC is not a constitutional court, it is a criminal appeals chamber. And that is irrelevant of the fact of it being a civil law or a common law approach.
As for the comparison with other international institutions, it is, in my humble opinion, equally beside the point. They certainly have advisory jurisdiction, but as institutions as a whole towards the outside. The AC is an international court in and of itself. The AC is one chamber within the STL with a specific role in that institution. In any case, in link with my first point, if the drafters wanted the AC to be a consultative body, it should have said so in the Statute. It is not for the judges to self-appoint themselves.

I think a common mistake that is made in relation to international tribunals is to forget about functional specificity. We expect them to do everything and are therefore not surprised anymore when they go beyond their function. It is obvious with the ICC, which is expected to be a human rights court, a reparations court and a forum for victims as well as a criminal court. I think such insistence on trying to stuff so many functions in one institution is a recipe for that institute to fail in all its functions, and, most notably in its core one, that of being a criminal tribunal. But I suppose that is another debate...