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...

Breaking news: Prosecutor of Special Tribunal for Lebanon issues indictments

A 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 17^th 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.

It's alive! Judicial activity (activism?) at The Special Tribunal For Lebanon

In the past week, the Special Tribunal for Lebanon, set up in 2007 to prosecute those responsible for the death of Rafik Hariri on the 14 February 2005, has issued several decisions, which, if nothing else, prove that it is still alive. It is however symptomatic of how little progress it is making, at least publicly, that its most important "case" is whether a person arrested and detained for four years in relation to the attack... and then released due to insufficient evidence(!) could request access to his criminal file...

Before deciding on this issue, the President of the Tribunal, Judge Antonio Cassese, had to decide on the motions for disqualification of two Lebanese judges, Judge Riachy and Judge Chamseddine, the former for, among other things, having been involved in the case as a judge on the Lebanese Cour de Cassation before his appointment to the STL, and the latter for having been appointed by an alledgedly biased government. Beyond the legal analysis of the concept of bias in both decisions, and the unsurprising rejection of both motions, there is a noteworthy policy consideration in the  Chamseddine decision:

19. As for the appearance of bias, applying the test commonly employed for ascertaining such an appearance (namely, viewing the facts presented through a hypothetical fair-minded observer with sufficient knowledge of the actual circumstances to make a reasonable judgment), I am satisfied that Judge Chamseddine's nomination by the Lebanese authorities does not create any appearance of bias. Time and again the ICTY and other international tribunals have stated that the nationalities of Judges and the policies of their governments are irrelevant for the purposes of determining impartiality. I only add that the Applicant's submissions, if accepted, would have the deplorable effect that no Lebanese judge could ever sit on any Chamber of the Tribunal - thus frustrating the very nature of its 'hybrid' character, with all of the consequences this entails.

This is certainly true on a case by case analysis, but it still raises the issue of the ambiguity of how international justice intervenes in the first place, especially in "hybrid" fashion. The whole point of international justice is that the national system, presumably including its personnel, is inadequate, because of security, lack of ressources, political pressure, risks of partiality etc. This justified the creation of the ICTY/ICTR removed from local politics. It failed in many ways, but at least the message was clear.
What the "hybrid" model aims at doing is re-introduce some national element to increase "local ownership", but incidentally it also imports within the tribunal, the difficulties that had made its creation necessary (for some) in the first place.Why create a hybrid institution if all is fine (including the judges) with the Lebanese judicial system? Why would the national judges be free of possible pressure when sitting in the Hague? and alternatively, if all it takes is that, why create a hybrid court, rather than just have a lebanese criminal court sit elsewhere than Lebanon? Cassese is right to say that a contrary decision would have defeated the purpose of the tribunal, but one can wonder if the purpose itself need not be rethought...

Moving on to the main decision regarding jurisdiction and standing, the Appeals Chamber had to decide whether, despite the limited scope of its mandate, which is to prosecute those responsible for Hariri's death (and some other related acts), the STL could still have jurisdiction to pronounce itself on the request for access of the criminal file by a formerly detained person which is not a suspect, and whether this person has standing. The answer is "yes" on both counts and I'd like to make two series of remarks on the reasoning.

1. The basis for the decision is the famous "inherent jurisdiction" of the Tribunal to "determine incidental legal issues which arise as a direct consequence of the procedures which the Tribunal is seized by reason of the matter falling under its primary jurisdiction" (§45), even when not explicitely envisioned by the founding documents. This theory has often been used, but its legal foundation has always been unclear. Not so anymore, thanks to Judge Cassese:

"47. The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved."

This is an extravagantly drafted paragraph on customary law, and shows that the STL will follow in the steps of its predecessors in its approach to this issue, which is unsurprising, given the presence of Antonio Cassese, who started the ball rolling on the "death by judicial activism" of positivism in ICL as President of the ICTY. Still, there are so many unconventional aspects in this statement that I don't know where I could begin.

First of all, since when do non-state actors contribute to the creation of international custom and, linked to this, since when has "State practice" become simply "practice"? International courts have often shown flexibility in assessing the existence of custom and have often resorted to practice of non-State entities (see the recent Cambodia judgement I commented upon). But I don't recall seeing it being so exclusively the basis for the customary norm, with the intervention of States being relegated to having to explicitly oppose such a practice. The core should always be State practice, even if you show more or less flexibility in introducing supporting evidence from other actors.

Second of all, the reasoning is not that clear semantically. The first sentence refers to the existence of a  "general rule of international law" created by international practice, and the second one refers more explicitly to customary law, with slightly different conditions (lack of objection in one case, and implicit acceptance in the other). Several interpretations are possible. 1) We are faced with two different types of norms, which raises the question of the link between the two. 2) Customary law is a sub-category of "general rules of international law", which raises the question of what exactly are "international practice-created" general rules. 3) What seems more likely, is that the judges are using the terms to cover the same thing, which implies, given the different formulations of the two sentences, that the "lack of objection" in the first part of the paragraph is the same as the "implicit acceptance" in the second part of the paragraph. This is an intellectual shortcut (lack of objection might, but does not necessarily mean consent) which would require more elaboration. What is certain, is that this paragraph shows, if not incompetence, at least drafting laziness. It is unprofessional to argue in such a way, such an important issue of international law, with so much unclarity.
Which begs a more general comment on how such an estimed scholar as Antonio Cassese can pen such ill-argued judicial decisions? Or maybe, he has reached such a position in international criminal law that he doesn't need to justify his legal reasoning anymore, just to affirm his legal opinion which passes instantly for legal norms. Which is fair enough, but should he then really be a judge, with the limits that should normally be attached to the function, rather than be an independent (and influential) academic?

Finally, and more fundamentally in my opinion, beyond the debate on the rules relating to the formation of customary law, one has to move back a step and wonder if falls at all in the area of customary law. In the case of inherent powers, we are trying to ascertain an unwritten rule (in a generic sense) relating to the exercise of jurisdiction by international tribunals. How can there ever be national State practice of an international tribunal? it's contextually impossible. The link to States would more logically be found in the establishment of a general principle of law, or, if one wants to show some "progressive thinking", a new category of international procedural principles. Indeed, the STL's drafting is a illustration of a tendency to move towards an autonomised view of the international legal judiciary, but hiding behind a traditional approach. Whether one agrees with this ideology or not, intellectual honesty would require to move away from the traditional notions of sources of international law, and use new ones, rather than trick us into thinking that we are faced with technical changes to the formation of customary law, rather than radical changes in the approach to the international legal order. Methodologically, we must avoid the illusion of thinking that because we use the same term, we are talking about the same thing. It is not because I call a chair a "chair" and a glass a "chair" as well, that you should start comparing them. You will first start by pointing out that this glass, is in fact a glass, not a chair. It is the same here, if we are to speak a common language as scholars and if words are not empty shells, one cannot accept that the "customary law" described by the STL is at all comparable to the "customary law" we had been using before. This is a semantic trap which we should avoid falling into.

[update: Marko Milanovic, over at EJIL Talk!, has also commented on this issue, with the same doubts about the reasoning.]

On the substance of the decision, I'm not entirely convinced by the fact that the STL in fact does have jurisdiction to hear the Applicant on this issue, or that he should have standing. He was arrested in 2005, and was held in custody by Lebanese authorities, not the STL, for 4 years. When the Tribunal started functioning in April 2009, it ordered the release of the person in a little over two weeks. So for the whole period of detention, the STL had some form of authority over him for two weeks, and only through inaction, rather than a positive desire to keep him in custody. My initial reaction would be that it's not the STL's fault or problem if Lebanese authorities violated his rights for so long. Human rights don't exist in an institutional void. The STL never indicted him, considered him as a suspect and more importantly, ordered his detention . He therefore has no procedural rights in relation to that institution. The STL does not technically possess his "criminal" file which he would have a right to access, because it never initiated proceedings of any sort against him. He should turn towards the authorities that did decide on his imprisonment, that is the national ones. If a national judge considers that he should have access to elements in possession of the STL, then it becomes an issue of cooperation between the two orders, which is political and logistical, depending on the arrangements made between the STL and the Lebanese governement, but not judicial in the sense that the Appeals Chamber has considered it as related to the rights of the Applicant, and it therefore certainly doesn't mean that the Applicant should have standing directly before the STL.

This decision is in my view due to a confusion on the exact nature of these international institutions, which are meant to be criminal, but see themselves as human rights institutions. However, in the case of the STL, one can only sympathize with its identity crisis. It's a "hybrid" court, created by treaty/the Security Council, which cannot therefore be considered national, but that has jurisdiction exclusively over crimes contained in the lebanese criminal code, which makes it technically difficult to call it an "international criminal tribunal". The Tribunal is certainly alive, but, torn between different logics, orders and traditions, one has to wonder whether it should have been created at all, and, now that it has, whether is should not be allowed to be "borne away by the waves, and lost in darkness and distance".