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Monday, January 17, 2011

Breaking news: Prosecutor of Special Tribunal for Lebanon issues indictments

month later than had been originally expected in December, and according to an announcement on the website of the Special Tribunal for Lebanon:
The Registrar of the Special Tribunal for Lebanon, Herman von Hebel, can confirm that the Prosecutor of the tribunal has submitted an indictment and supporting materials to the Pre-Trial Judge. The documents, which relate to the assassination of Rafiq Hariri and others, were handed to the Registry at 16:35PM (local time) on Monday 17th January 2011. They will now be reviewed by the Pre-Trial Judge, Daniel Fransen. The contents of the indictment remain confidential at this stage.
According to the BBC, and as as reported by Bill Schabas in December, Hezbollah leaders are expected to be named in them. We'll have to wait for the pre-trial judge to issue arrest warrants and for them to be unsealed to get confirmation. 

Politically, this is an interesting development, given that the STL is at the center of a typical Peace vs. Justice debate, as mentioned by the International Jurist last week, the indictments being seen as divisive and threatening an already fragile political situation in the country. Even Hariri's son has asked for the Tribunal to back off. Despite this, "The Prosecutor and his team will continue to vigorously pursue his mandate with respect to both continued investigative activity and the prosecution of this case." (statement here) and the UNSG reiterated his support for the tribunal last week.

Legally, I'll have other opportunities to blog about this, but this tribunal has always seemed to me like an ill-thought enterprise from the start, with a poorly defined material jurisdiction (national crimes of terrorism, with only a reference to the national criminal code) and "factual" jurisdiction, for lack of a better word (the Hariri assassination and other crimes which are related to it, whatever that means). Also, what should be interesting, and what we should keep in mind is that the Tribunal is the first to allow trials in absentia, in the civil law tradition. So we don't really need any arrests for trials to go forward. As I've had the opportunity of saying before, I am, on balance, in favor of such trials. Let's have a live example to test the theory. Until I get a chance to share my own thoughts further on the tribunal, the STL has been kind enough to prepare a FAQ document on indictments for the general public.

More at a later stage when the Prosecutor issues a videotaped statement tomorrow.

Friday, January 7, 2011

Some thoughts on the Legal Blogging debate: looking at the shooter, not the gun...

First of all, a happy new year to my faithful readers, who keep checking for updates despite my poor record in posting in recent months....

To start the year on a light note, I'd like to put forward some comments on Jean D'Aspremont's thoughful discussion of legal blogging over at EJIL Talk. It's a generally positive assesment of this practice, and I share most of his conclusions. I propose here some additional food for thought as a counter-point to Jean's argumentation.

For one, I find it difficult to make comments on legal blogging in general. Some of them have a purely informative ambitions (publications, call for papers, recent decisions...). Others tend to be more analytical. A blog is just a medium of communication that can be used for several purposes, and is not per se hazardous or not. In the same way, there is good quality and bad quality blogging out there and it is for the reader to decide on this. Arguably, given the volume of legal blogging (and I agree with Jean that keeping track is an extremely time-consuming activity), it is harder to sift the good from the bad, but the idea remains the same.

Which leads me to a second point. the analyse should invite a mirror analysis of traditional legal scholarship. Not to sound facetious (and probably proving Jean's point that blogging may lead to comments that "the author of the post may subsequently regret"...), but we've all come accross journal articles and books, even in established and reknowned publications and from esteemed publishers, which have "hasty treatment of the information" and disseminate "half-baked ideas". What we do daily, is exercise judgment, based on our previous experience of a Journal or a specific author, to decide whether to give credit to a particular piece.

The same is true of the blogosphere, which is a far more organised (or at least not any less so than the traditional legal scholarship world) than Jean seems to suggest. There is a handful of established legal blogs out there and I don't think it is that much harder for a jurist in the field to identify them, than to know what traditional journals have a certain reputation or not.

On the interaction between legal blogging and traditional legal scholarship, I do not share Jean's invitation to keep them entirely separate, both in terms of content, and career advancement. It all depends on what your evaluation standards are. Of course, I wouldn't expect a scholar's capacity for thorough research  to be assessed by his blog. In the same way, I wouldn't judge a person's capacity to write a book on a few paragraphs online.
However, legal blog writing is a skill and can show a certain capacity to express ideas succinctly and clearly, which can certainly be useful in a academic career, in terms of drafting short notes or abstracts, on which will often depend initial participation in a project or conference.
Moreover, in terms of content, I must admit that I do not share Xavier's humility over at the International Jurist, who says he's not trying to compete with some of the expert blogs. I don't see why a good idea expressed in a blog (and I've read quite a few on Xavier's blog, and hope that I've put forward a couple of my own here) should be less worthy of attention than a good idea developed in a lenghty article. Again, I've seen terrible ideas being developed over the course of entire books, and novel ideas be succinctly put forward in short blog posts.

In any case, I think that one shouldn't oppose legal blogging and traditional scholarship. The former never had the ambition to replace the latter. They are just different means of communication, and they follow similar recognition patterns, in terms of repuation and expertise, as I point out previously. They also have different purposes which are actually complementary. Indeed, a cursory review of the list of contributors of some of the major blogs, such as EJIL Talk, or IntLawGrrls, shows that most of them are regularly published in traditional academic publications.

The bottom line is that what is important, is the author, not the medium. A poor jurist will produce poor scholarship, whatever the means. As regards a good jurist, his capacity to convey his ideas adequately through blogs will depend on the structure of his thought process. Some people need (and want) to cover every aspect of a topic before starting to communicate, others function better in perpetual debate to construct their ideas. Ultimately, as Jean points out, Blogs are a healthy platform for expert's debate. At the end of the day, the quality of the debate will depend on what we, as active contributors, do with it. Any debate on this issue should therefore focus, as Jean does at the end of his contribution, at the shooter, not the gun.