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

Published on June 19, 2012        Author: 

In her rejoinder to my post, Jaye Ellis underscores that “comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another”.

Insofar as comparative law is considered merely as an opportunity to “learn” from municipal legal systems, then the matter is relatively uncontroversial. A perhaps more controversial question, however, is: how are the lessons learnt from comparative law to be used?

While some authors, on the one hand, have suggested that the lessons from comparative law may provide safeguards against judges who attempt to legitimate a posteriori a solution that they have already chosen (see Delmas-Marty, The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law, Journal of International Criminal Justice (2003)).

On the other hand, some commentators have suggested that comparative law may be used for precisely the converse reason. Judge Cassese, for instance, intimated that:

Mon experience est que souvent le droit compare est utilise pour confirmer une solution que l’on avait déjà trouvée.(cited in Bohlander and Findlay, The Use of Domestic Sources as a Basis for International Criminal Law Principles, in the Global Community Yearbook of International Law and Jurisprudence (2002)).

It is perhaps this apprehension which explains Judge Cassese’s categorical stance in Erdemović, in relation to the acceptance by the Tribunal of a guilty plea. While the Tribunal concluded that it could restrict its search solely to common law adversarial systems from which the rule was derived, Judge Cassese insisted that such a narrow inquiry was unacceptable. Read the rest of this entry…

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The Immunity of the ICC Lawyers and Staff Detained in Libya

Published on June 18, 2012        Author: 

Readers will be aware that four staff of the International Criminal Court have been detained in Libya after meeting with Saif Gaddafi over a week ago. The visit to Saif Gaddafi was organized by the ICC’s Office of the Public Counsel for Defence which has been appointed to represent Saif Gaddafi in the ICC proceedings against him. One of the persons detained is Melinda Taylor, an Australian defence lawyer at the ICC. She has been accused of spying, and of passing on to Saif a letter from Saif’s former right hand man, Mohammed Ismaili, who is wanted by the Libyan authorities. Taylor and the other ICC staff were detained by a militia in Zintan, the town where Saif Gaddafi is being held.  Since their detention, they have been visited by an ICC delegation together with the Ambassadors of Australian, Russia, Lebanon and Spain. Thankfully, an ICC Press Release reports that the detained staff indicated that they are in good health and being well treated.

Since the incident first began, there have assertions that these ICC staff are entitled to immunity from arrest and detention in Libya. This claim has been made by the ICC President, Judge Sang-Hyun Song, by the Australian Foreign Minister, Bob Carr, by Mark Kersten on his  blog Justice in Conflict, and by Kevin Jon Heller on Opinio Juris. I agree with the view that these staff are immune and think it is useful, and interesting, to set out the basis on which that immunity exists.

The most straightforward argument for the immunity is that it is provided for in Article 48 of the ICC Statute and that this provision is binding on Libya as a result of UN Security Council Resolution 1970. Article 48 provides that:

“(3) The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court.

(4) Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.”

Before getting on to which immunities this provision grants to ICC staff, one ought to begin by explaining why Art. 48 is binding on Libya. Read the rest of this entry…


Falklands (Malvinas) Redux

Published on June 17, 2012        Author: 

June 14 2012 marked the 30th anniversary of the end of the 1982 Falklands (Malvinas) War. After a decade of relative calm and increased technical cooperation on the Falklands (Malvinas), diplomatic tensions between Argentina and the UK have flared up in the lead-up to this anniversary. A concerted diplomatic push by Argentina has returned the sovereignty dispute over the Falklands (Malvinas) to the top of the foreign policy agenda. On June 14, Argentine President Kirchner made an emotional appeal to the UN Special Committee on Decolonisation for bilateral negotiations on sovereignty between Argentina and the UK. She was the first head of state to speak to the Committee. A recent conference at the University of Cambridge explored why the Islands remain so deeply rooted in the Argentine psyche.

The dispute over the Falklands (Malvinas) has returned centre stage just as the prospects of substantial hydrocarbon reserves in the seas surrounding the Islands greatly increased the economic stakes of the sovereignty dispute. The promise of an oil boom in the South Atlantic has prompted several companies listed in London, including Falkland Oil and Gas, Borders and Southern Petroleum, Rockhopper, Desire Petroleum and Argos Resources, to survey the area. They obtained exploration licenses from the Falklands administration in 2011, which drew strong criticism from Argentina. Earlier, both Argentina and the UK had anticipated that cooperation in matters of natural resources was desirable, given the uncertainty generated by their sovereignty dispute.   Read the rest of this entry…


Comparative Law and the Ad Hoc Tribunals: A Rejoinder to Aldo Zammit Borda

Published on June 15, 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

In his EJIL:Talk! post commenting on my recent EJIL article, Aldo Zammit Borda begins with reference to an approach to the identification of general principles of international law that is quite different from the one I described as being the current dominant approach, and rather similar to the approach that I propose in my paper. Central to my argument is that comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another. The approach taken by Judge Shahabuddeen in Furundzija, and adopted by Aldo, seems compatible with the one I advance. I would propose the adoption of a more modest goal: rather than hoping to find ‘a common underlying sense of what is just in the circumstances’ as Judge Shahabuddeen would have it, I would suggest the identification of a reasonable, and reasonably just, solution to a legal problem. Nevertheless, Judge Shahabuddeen’s approach moves sharply away from a mechanical, or functional, approach to borrowing from municipal legal systems. I am less confident than Aldo regarding the extent to which this principle is reflected in what most international judges do, and what legal scholars say they ought to do, when it comes to general principles, though judges on international criminal tribunals are moving in interesting and promising directions.

I am not convinced that Aldo’s approach to comparative law provides appropriate guidance to international judges looking to learn from municipal law. Schmitthoff’s approach to comparative law, adopted by Aldo, is problematic in my view. I agree with Schmitthoff that comparative law is better described as a comparison among reactions of legal systems to a problem than as a comparison between legal rules and institutions, but I find that the second stage, the utilization of the results obtained, is question-begging. Read the rest of this entry…

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Drones, Just War and Due Process

Published on June 9, 2012        Author: 

Readers might be interested in two very good recent articles on drones and President Obama’s direct involvement in targeted killing decisions: in the Boston Review, David Luban examines Obama’s alleged reliance on just war theory in deciding on targeted killing policies, while Paul Daly on his new blog looks at the issue from an administrative law standpoint. Reactions are of course welcome.


The ICC must consider fair trial concerns in determining Libya’s application to prosecute Saif al-Islam Gaddafi nationally

Published on June 8, 2012        Author: 

Jonathan O’Donohue is a Legal Adviser for Amnesty International’s International Secretariat. He leads the Coalition for the International Criminal Court’s Budget and Finance Team.

Sophie Rigney is a PhD candidate at the University of Melbourne, examining the role of the rights of the accused in international criminal law. Between 2009-2011, she  worked at the International Criminal Tribunal for the Former Yugoslavia, including as Legal Assistant to the Stand-by Counsel in the case of Radovan Karadžić.

The ICC’s Pre-Trial Chamber is considering the Libyan government’s challenge to the admissibility of the case against Saif al-Islam Gaddafi. The request raises serious concerns as to whether he would receive a fair trial in Libya. The plain meaning of the rule of complementarity spelled out in Article 17 of the Rome Statute; the interpretative provisions in Article 21 (3); and a teleological approach confirm that, if the judges are not satisfied that the rights of the accused will be respected in national criminal proceedings, the case will be admissible and the application must be rejected.

Saif al-Islam Gaddafi was arrested in November 2011 and is being held in Zintan by militia who are refusing to hand him over to the central authorities. According to the Office of Public Counsel for Defence representing him at the ICC, he has been held in isolation in secret locations without access to national courts or effective access to a lawyer or facilities to communicate with his family.

More generally, the Libyan national justice system remains in a weak state. Thousands of suspected al-Gaddafi loyalists are currently being detained in Libya by armed militias outside the framework of the law. Only a small number have been presented before a court or charged with a recognisable criminal offence. Amnesty International has documented torture and other ill-treatment of these detainees, in some cases resulting in coerced confessions and death.

A new law enacted in May 2012 undermines freedom of expression by prescribing prison sentences for spreading false rumours, propaganda, or information with the aim of harming national defence, “terrorizing people”, or “weakening citizens’ morale” during war time. This could have specific consequences for those who may be prosecuted in Libya for criminal offences associated with the al-Gaddafi regime. Defence lawyers may be reluctant to represent them for fear of being prosecuted for statements they made in the defence of their clients. Defence witnesses may refuse to give evidence.

Another new law establishes selective justice by providing amnesty to anti-Gaddafi fighters if their actions –potentially including crimes under international law – served the “17 February Revolution.”

These fair trial concerns have prompted Amnesty International to call repeatedly on the Libyan authorities to surrender Saif al-Islam Gaddafi to the ICC and to focus on rebuilding the national justice system in order to be able to investigate and prosecute all other cases involving crimes committed by both sides in accordance with international standards.

However, some claim that the ICC cannot determine that a case is admissible because the national proceedings would be unfair.  In his article, The Shadow Side of Complementarity: the effect of Article 17 of the Rome Statute on national due process, Kevin Jon Heller contends that Article 17

permits the Court to find a State ‘unwilling or unable’ only if its legal proceedings are designed to make a defendant more difficult to convict. If its legal proceedings are designed to make the defendant easier to convict, the provision requires the Court to defer to the State no matter how unfair those proceedings may be.

Following Saif al-Islam Gaddafi’s capture, the ICC Prosecutor also appeared to question the relevance of fair trial concerns in the process stating in a press conference shown by Al-Jazeera: “[w]e are not a human rights Court. We are not checking the fairness of the proceedings. We are checking the genuineness of the proceedings.”

However, these interpretations are in the minority. Read the rest of this entry…


Lectureships at Edinburgh (ICL) and UCL (PIL)

Published on June 7, 2012        Author: 

Details here and here.

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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…