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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis

Published on June 1, 2012        Author: 

Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London.

 1. Introduction

This post seeks to engage with Jaye Ellis’ article on ‘General Principles and Comparative Law’ (22 EJIL (2011) 4, 949–971). While it agrees with Ellis’ general proposition that comparative law provides a valuable resource for the identification of general principles of law, it argues that there are important distinctions to be drawn between the comparative law method and the review of evidence for the purpose of clarifying customary international law and general principles of law. In particular, the argument is made that the identification of general principles is not, as Ellis suggests, the mechanical extraction of the essence of rules. Rather, it is the juridical identification of a common underlying sense of what is just in the circumstances. In her article, Ellis was critical of the late Judge Cassese’s position in Erdemovic, for insisting that an approach which relied primarily on common law systems for guidance on the guilty plea was “unacceptable.” This post however agrees with Judge Cassese’s position and underscores the dangers in accepting narrow inquiries, which at best attach special weight and at worst restrict the scope of  inquiry to a single, specific legal system.

2. Comparative Law And The Ad Hoc Tribunals

In ‘The Science of Comparative Law’ (7 Cambridge LJ (1939-1941) 94), Schmitthoff observes that  “The  first  phase  consists  in  examining  the  reaction  of  a number  of  legal  systems  to  an  individual  legal  problem.  The second stage is concerned with the utilization of the results obtained  in  the  first  phase,  and  this  utilization  can  be  effected for a great variety of reasons.”

This post will mainly be concerned with the first phase of comparative law (the “collation of facts” phase), which assumes, as a prerequisite, that the topics under examination must be comparable. Schmitthoff states that comparative law has to confine itself to legal systems which have reached the same (comparable) level of evolution. Establishing a basis of comparability for the relevant topics is therefore a prerequisite of comparative law. For Barak, this basis of comparability is a common ideology. He states that, with respect to democratic legal systems, a meaningful comparison could only be had with other democratic legal systems.

A. The Application Of Comparative Law By The Ad Hoc Tribunals

Delmas-Marty observed that the attraction of comparative law stems from the sources of international criminal law, at least to the extent that custom and general principles of law are partly based on national law. (‘The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law’, 1 J International Criminal Justice (2003) 13)

1. Comparative Law And Customary International Law

The process of clarifying customary international law requires reviewing evidence from, inter alia, national jurisdictions in order to make out its material sources, namely State practice and opinio juris. The process of reviewing evidence in this context resembles Schmitthoff’s first phase of comparative law, namely, the “collation of facts” phase. Read the rest of this entry…

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General Principles and Comparative Law

Published on May 31, 2012        Author: 

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and more ambitious, areas of overlap between international and municipal law become ever larger, and interactions between the two levels more numerous. It might seem reasonable to assume that general principles of law, a source which establishes an important point of contact between international and municipal law, would come into its own in such an environment. This has not been the case, however. One possible explanation is hesitation on the part of international judges to identify rules whose formal validity as rules of international law is rather tenuous. Another possible explanation is the highly unsatisfactory nature, both in theory and in practice, of the methodology currently applied to identify general principles of law. The debates at the international level regarding general principles map onto those at the municipal level concerning the ‘borrowing’ of rules from one legal system by another. It makes sense, therefore, to look into the controversies over ‘borrowing’ that play out in scholarship on comparative law, in order to gain some insights into the difficulties generated by the source general principles of law, as well as ways of alleviating these difficulties. I argue that particular attention ought to be paid to strands of comparative law scholarship which take issue with a functional approach – to put it starkly, an approach that treats legal rules as pieces that can be extracted from one machine and inserted into another – and which place emphasis on the processes through which legal systems can learn from one another.

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Discussion of Jaye Ellis “General Principles and Comparative Law”

Published on May 31, 2012        Author: 

Over the next few days, we will be hosting a discussion of one of the articles published in the last issue of the 2011 volume of European Journal of International Law. That issue included a paper by Jaye Ellis on “General Principles and Comparative Law”. Jaye is Associate Professor of Law and Associate Dean at McGill University’s Faculty of Law. Jaye posts a short  overview of her article later today. Tomorrow, Aldo Zammit Borda who is currently a PhD candidate at Trinity College, Dublin but formerly First Secretary at the Ministry of Foreign Affairs of Malta, and Legal Editor, Commonwealth Secretariat, London will comment on Prof. Ellis’ article. Readers are invited to join in the conversation.

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Professorship/Associate Professorship in PIL at Exeter

Published on May 29, 2012        Author: 

The University of Exeter School of Law is advertising a position in public international law – more details here.

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‘Crowing’ About Iran Sanctions Should Stop

Published on May 25, 2012        Author: 

Daniel Joyner is Professor of Law at the University of Alabama School of Law. His research interests are focused in nuclear weapons nonproliferation law and civilian nuclear energy law. He has also written extensively on international use of force law, and on the UN Security Council. He is the author of International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009) and Interpreting the Nuclear Nonproliferation Treaty (Oxford University Press, 2011).

There is a good bit of “crowing” going on at the moment by US officials, particularly about the role of Western financial sanctions in “bringing Iran to the table” for negotiations with the International Atomic Energy Agency (IAEA) and the West about its nuclear program. For example, US Treasury Under-Secretary for Terrorism and Financial Intelligence David Cohen said regarding these sanctions:

“They [Iran] are increasingly isolated — diplomatically, financially and economically … I don’t think there is any question that the impact of this pressure played a role in Iran’s decision to come to the table.”

This assessment, however, reflects a good deal of peripheral blindness: both about the past and about the future of the Western sanctions program.

If the question is: has the policy of institutional escalation at the IAEA and the UN Security Council (UNSC), and the imposition of sanctions on Iran by the UN, the US and the European Union (EU), had an influence on Iran’s actions and the development of a crisis between Iran and the West over its nuclear program, the answer is definitely yes. But not in the way these crowing US officials think.

The reasons that Iran stopped implementing its Additional Protocol safeguards agreement with the IAEA back in 2005, pulled back from meaningful discussions with the IAEA and the West at the same time, have since become entrenched in their determination not to give in to Western pressure, and even threatened to block the straits of Hormuz and send world oil prices skyrocketing, have been explicitly stated by Iran to be the decisions by the IAEA and the UNSC requiring Iran to cease its enrichment of uranium beginning in 2005, and the sanctions that have been imposed by the UNSC, and unilaterally by the US and the EU, since that time.

To put it simply, the West’s sanctions program is the reason that Iran pulled back from the negotiating table in the first place.

To now claim that Western sanctions have had the successful effect of bringing Iran back to the negotiating table is to ignore this broader view of the history of the crisis over Iran’s nuclear program, and the material role that Western sanctions have played in actually creating and intensifying the crisis. Read the rest of this entry…

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Prisoner Voting and Strategic Judging

Published on May 22, 2012        Author: 

Today the European Court of Human Rights delivered its Grand Chamber judgment in Scoppola v. Italy (no. 3), App. No. 126/05). This is the Court’s latest foray into the prisoner voting saga, starting from its GC judgment in Hirst that the blanket ban on prisoner voting in the UK was disproportionate and a violation of Art. 3 of Protocol No. 1 to the Convention. A press release summarizing the judgment is available here; the judgment itself here. The GC ruling in Hirst was followed by several other cases, which I’ll not look in detail here – readers may wish to consult this post by Adam Wagner, as well as his excellent take on today’s judgment

What makes the whole prisoner voting issue before Strasbourg so interesting is how it reflects on the relationship between law and politics, and on the nature of judging. It is in the nature of human rights cases that resolving them almost invariablity requires value judgments, rather than some blind application of the law. Art. 3 of Protocol No. 1 does not give a clear answer one way or another as to whether a blanket ban on prisoner voting would be disproportionate; that is inevitably a moral and policy decision that the (international) judge needs to take. That decision may well lead to conflit with legislators. In order to avoid such conflicts as much as possible, the Court has normally paid much deference to domestic processes in the absence of a European consensus on the issue. When such consensus existed it would force the few recalcitrant states to conform; in the absence of consensus it would normally allow each state to go its own way. In Hirst, however, the Court may have overreached. While much of the criticism of that decision in the UK was of the cartoonish Daily Mail-type, it nonetheless raised serious concerns about the Court overriding national legislators on morally contested matters on which it was not necessarily any more competent than the democratically elected legislators themselves.

Read the rest of this entry…

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Competing Views on Libya’s Obligation to Surrender Saif Gaddafi to the ICC

Published on May 16, 2012        Author: 

Over at Opinio Juris, Kevin Jon Heller notes that the debate which he, Jens David Ohlin and I have had regarding whether Libya can postpone it’s obligation to surrender Saif Gaddafi to the International Criminal Court is now being waged by organs of the ICC. As Kevin notes:

Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.

The motions are a study in contrasts.  The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court.  It’s a very underwhelming motion, and I don’t say that simply because I disagree with it.  Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.

Kevin goes on to note that the OPCD motion makes arguments similar to his arguments in his Opinio Juris points on the issue and indeed cites his posts. In addition to the filings by these two organs of the ICC, there is a third motion on this question, which was recently filed before the ICC. This is the request by the National Transitional Council of Libya for the ICC to postpone or suspend the obligation to surrender Saif Gaddafi. Libya’s previous requests for postponement of the surrender obligation were rejected by the ICC (see my earlier post). Those requests were made at a time when Libya had not contested the admissibility of the ICC proceedings. However, Libya has now challenged the admissibility of the proceedings against Saif Gaddafi. Libya asserts that the case against Saif and Al Sanussi are inadmissible because Libya’s “national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts  . . .  amounting to crimes against humanity.” Libya’s admissibility challenge changes the picture significantly as it is now entitled to rely on Article 95 of the ICC statute which explicitly applies where admissibility has been challenged.

The question that arises is whether Article 95, which permits postponement of a State’s obligation to cooperate with the ICC extends to the obligation of surrender. Libya (and the OTP) argue that Art. 95 does. Libya argues that interpreting Article 95 as permitting postponement of the obligation of surrender upholds the principle of complementarity. This is a point that I made in my previous EJIL:Talk! post and which I develop more fully in my recent article on this issue published earlier this month in the Journal of International Criminal Justice. Indeed, Libya cites and rely on both my post and on my article. Read the rest of this entry…

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The Verdict in the Charles Taylor Case and the Alternate Judge’s “Dissenting Opinion”

Published on May 11, 2012        Author: 

Charles Jalloh is Assistant Professor, University of Pittsburgh School of Law, Pennsylvania, U.S.A.; formerly the Legal Advisor to the Office of the Principal Defender, Special Court for Sierra Leone and duty counsel to former Liberian President Charles Taylor. He blogs at International Criminal Law in Ferment and we are grateful to him for accepting our invitation to contribute this piece to EJIL:Talk!

1.      Introduction

On 26 April 2012, Trial Chamber II of the United Nations-backed Special Court for Sierra Leone (SCSL) sitting in The Hague, comprised of Judges Richard Lussick, presiding; Julia Sebutinde, and Teresa Doherty, gave their long awaited verdict in the case involving former Liberian President Charles Taylor.

As has been widely reported since, the judges unanimously found Taylor guilty of five counts of crimes against humanity, five counts of war crimes and one count of other serious violations of international humanitarian law perpetrated by the Revolutionary United Front (RUF) rebels acting in concert with the mutinying elements of the Sierra Leone Army known as the Armed Forces Revolutionary Council (AFRC) in the period between 30 November 1996 and 18 January 2002.

Taylor was convicted as a secondary perpetrator, i.e. as a planner and aider and abettor, of murder, rape, sexual slavery, enslavement, other inhumane acts, acts of terrorism, pillage, outrages upon personal dignity, violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, and conscripting or enlisting children under 15 years into armed forces or groups or using them to participate actively in hostilities.

Although the Chamber has not yet issued its authoritative trial judgment setting out the full reasoning behind its conclusions, the judges made some significant factual and legal findings in the 44-page “summary” that Presiding Judge Lussick read out in open court for about two hours. Having convicted Taylor, they fixed 16 May 2012 for an oral sentencing hearing with each of the parties allocated one hour to address the Chamber. Taylor was offered up to half an hour to make a statement, should he so wish. The sentencing judgment will follow two weeks later (on 30 May 2012).

Taylor is the first former President to have been indicted, fully tried and now convicted in an international criminal tribunal since the immediate post-World War II trial of German Admiral Karl Doenitz at the Nuremberg International Military Tribunal. Not surprisingly, many thoughtful legal commentators have already weighed in on key issues raised by the verdict. These include the Chamber’s findings on Joint Criminal Enterprise, Command Responsibility and Gender Crimes (see, for example, Bill Schabas, Diane Marie Amman, Jens Ohlin, Valerie Oosterveld, Kelly Askin).

 2.     An Omission and a Problem

Briefly mentioned by Kirsty Sutherland, Kevin Heller and Bill Schabas, but not as well discussed (with the exception of Jennifer Easterday and Sara Kendall), was the weighty decision of the alternate (fourth) judge in the Taylor Trial, El Hadji Malick Sow, to enter a “dissenting opinion” to Trial Chamber II’s unanimous judgment.

In this post, I examine Alternate Judge Sow’s views on the verdict. I argue that, while his statement gives cause for concern, and ultimately reflects the tension throughout the trial between him and the other three judges, expressing public views on the verdict was unfortunate because the effect might be to impugn the credibility and legitimacy of an otherwise fair trial that met the due process standards of the SCSL Statute and international human rights law. Read the rest of this entry…

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Surface to Air Missiles to be Deployed at the Olympics: One More Step to Dystopia?

Published on May 11, 2012        Author: 

It was recently announced that the security measures for this year’s London Olympics will include the deployment of surface to air missiles in the vicinity of the various Olympic venues. Oddly, there has been very little discussion of the implications that these security measures might have for civil liberties or human rights. Unlike the games themselves, these legal issues are important in the wider scheme of things.

Call me cynical, or at least bitter and twisted, if you like.   I simply have never seen the point of the Olympic Games, unless one sees it as a continuation of politics through sport (which we now have to assume includes synchronised swimming, (see this YouTube clip), or as a nice little revenue stream for construction companies, fund-raisers, and those successful in their chosen sport, or as a laboratory for the development of new undetectable drugs.  With few exceptions, for instance Bannister’s achievement in breaking the four-minute mile, who remembers a world-record-breaking performance once it has itself been broken?  This is an investment in ephemera, and the substitution of chauvinistic public emotion for reason and decorum.

So I, for one, am dreading the descent of the Olympics on London later this summer.  I shall not be waving flags or cheering the athletes on, and that is not simply because there is no Scottish team.  It is bad enough that I cannot look out my office window without seeing the “count-down to the games” revolving around the top of what used to be called the Post Office Tower.  It is a constant reminder of dread.  A dread which has been increased by the press reports of the enhanced security measures currently being proposed—in particular, the deployment of surface–to–air missiles which some reports claim can down a 747 (see here and here).

Perky army types in uniform have stressed that any decision to use missiles against a threat from the air will be taken not by them on the ground, but rather at the highest levels of government.  Security analysts are, of course, claiming that the aim of these draconian measures is to reassure the public and deter potential air attacks.

Oh really?  Even if we assume that the current crop of senior UK politicians might be able to make a sensible decision under extreme pressure, I am not at all reassured by the thought that they might entertain the possibility of shooting down planes over central London.  And all the publicity that has been given to these extreme security measures might simply give rise to the new unofficial Olympic sport of outwitting security in a spectacular manner.  And it too will be televised.  Rather than being a deterrent, this might be seen as a challenge—and if an aerial threat were to be posed by, say, a drone, or those intent on a suicide attack, how could these measures deter in the first place?  Leaving unmanned aircraft to one side, the question that I have not yet seen discussed is the threat that these measures pose to civil liberties and human rights.  Are these, once again, to be swept aside without comment by alleged considerations of “security”?  Is this, once again, politicians goading the public into mute acceptance and aquiescent complicity by ratcheting up a climate of fear?  Is this just one more step to dystopia?

I must admit that I am surprised that lawyers have been silent because we have been here before.  Read the rest of this entry…

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Goettingen Journal of International Law Essay Competition: “The Interplay of International and National Law”

Published on May 10, 2012        Author: 

The Goettingen Journal of International Law (GoJIL) has just announced the topic for its an annual International Law Essay Competition. This year’s topic is “The Interplay of International and National Law”. GoJIL is the first student-run journal in the field of International Law in Germany. Published, since 1999, the journal aims to foster debate among scholars of diverse fields in International Law and related disciplines. The backbone of GoJIL is formed by the Editorial Board, a group of enthusiastic students and scholars from various academic disciplines. The stated aim of the journal  is “to give young scholars the chance to gain practical experience and  make their own professional scientific publication with GoJIL.”

The call for papers for this year’s essay competition reads as follows:

In our current global political and legal system, international law does not only influence national law, but also depends on it. Can national law set borders for the content of international treaties or does it become more flexible as treaties force interaction with other judicial systems? Can it be used to settle conflicts between national powers? How are treaties, both bi-lateral and multi-lateral, implemented on the domestic level? What is the impact of UN Security Council Resolutions or Human Rights agreements on States’ law and politics? These are just a few of the numerous questions you could raise and address in your essay.

The deadline for your submission is 15 August 2012. The maxim word count is 3 000 words (without footnotes).

If you would like to write an article or are already working on the subject, send in your essay! The best article will be published in the Goettingen Journal of International Law – GoJIL Vol 4 No 3. If you have any questions, please write to info {at} gojil(.)eu or visit the journal’s website

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