Book Symposium: Comparative Reasoning in International Courts and Tribunals

Daniel Peat’s Comparative Reasoning in International Courts and Tribunals is a remarkable piece of scholarship in many respects, not least the breadth of its subject-matter. In advancing his thesis that domestic law is used in the interpretation of international law in a manner that does not fit squarely within the confines of the interpretative framework set out in Vienna Convention on the Law of Treaties, Peat draws on examples from the European Court of Human Rights, International Court of Justice, International Criminal Tribunal for the former Yugoslavia (ICTY), international investment tribunals and the World Trade Organisation. Twenty years ago, David Bederman noted that the increasing division of international law scholarship into narrow sub-disciplinary silos risked losing sight of the bigger picture of the discipline. In this regard, Peat’s book can rightfully take its place amongst other ‘truly integrative and holistic treatises’ on any international lawyer’s bookshelf.

Having noted this strength of the book, it is with some degree of self-consciousness that I curtail my remarks to Peat’s analysis of the ICTY. Peat examines the Tribunal’s invocation of domestic law to interpret the crime of rape, the requirements of a valid guilty plea, and its own power to issue subpoenas. This treatment of the ICTY’s case law gives rise to two points that are worthy of further discussion. The first is the question of whether the Tribunal’s rather flexible approach to domestic law interpretations of relevant principles renders it too unique a context from which to draw general lessons on how domestic law informs the interpretation of international law. The second is whether the ICTY’s practice can be said to have been in conformity with the principle of legality.

Domestic interpretations and the ICTY’s plea to principle

Peat rightly notes the ICTY’s reference to domestic criminal law to define the crime of rape (in Furundžija, and later expounded upon in Kunarac) and to incorporate what he refers to as the ‘imported legal institutions’ from common law jurisdictions of guilty pleas and subpoena powers (in Erdemović and Blaškić).

These examples themselves give rise to an interesting side point about the choice of jurisdictions in informing the Tribunal’s interpretation of its legal framework. Bohlander and Findlay critiqued the over-use of common law jurisdictions in this regard, attributing it to judges’ linguistic abilities. Raímondo noted judges’ and legal officers’ familiarity with particular legal systems as being decisive, and this does seem to play out in practice, explaining perhaps why Italy, England and Wales, and Zambia stood as a point of reference in Furundžija (Judges Cassese, May and Mumba), and the extensive reference to the law of Malaysia in Erdemović (with Judge Vohrah on the bench).

Other comparative choices are less easily explained – why, for example, did the Trial Chamber in Furundžija refer to the law of New South Wales, but not to any other Australian jurisdiction? Raímondo posits that accessibility of legislation, and the perceived need to take account of the domestic law of the countries where the crimes took place, are additional factors, but neither of these fully explain the erratic and uncertain methodology underpinning the Tribunal’s choice of jurisdictions. Some might argue that this was an exercise in ‘looking over the heads of the crowd and picking out your friends’, to paraphrase the quote often attributed to Justice Leventhal.

Moreover, there is a point to be made about the ICTY’s extensive survey of domestic law, followed by a decision to effectively ignore those domestic legal interpretations. In justifying this choice, general principles and/or the unique context of the Tribunal were referred to. Peat notes (p. 194) the influence of the ICTY’s definition in Furundžija, which included forced oral penetration within the definition of rape, on later case law, including the ICC Trial Chamber’s Judgment in Bemba. But to what extent can this particular finding be attributed to the ICTY’s reference to national law? The Chamber noted ‘a major discrepancy’ between states’ criminalisation of forced oral sex, with some national systems including it within the definition of rape, and others categorising it as sexual assault. To this end, it referred to ‘the general principle of respect for human dignity’ (para. 183) in classifying forced oral penetration as rape. But, as Akande has argued, human dignity is ‘hardly a general principle of law but more appropriately a value which rules of law seek to promote’.

Similarly, while the Separate Opinion of Judges McDonald and Vohrah in Erdemović clearly showed how domestic law informed the requirements for a valid guilty plea before the ICTY, this selectivity and a plea to principle shone through elsewhere in the same opinion. Having carried out an extensive survey of domestic jurisdictions, and then concluding that the legal systems of the world were inconsistent on whether duress can afford a complete defence to murder, the judges noted that it was impossible to marry these opposing positions. Instead, they argued that the most appropriate approach was to frame the issue in terms of the specific context of the Tribunal, particularly its mandate to prosecute serious international crimes.

These examples lead me to question whether the ICTY’s use of domestic law really provides the best lens through which to examine how domestic law informs the interpretation of international law. As we can see from the above, while domestic law was extensively expounded upon in the cases flagged by Peat, broader principles and the aims of the Tribunal were then invoked precisely to disregard those domestic practices. As the late Judge Cassese remarked:

We manipulate laws, standards, political principles, and principles of interpretation. Very often, particularly, in a criminal case, I sense that the defendant is guilty, and common sense leads me to believe that we should come to a particular conclusion. Then I say, ‘All right, let us now build sound legal reasoning to support that conclusion’.

The Principle of Legality

There is no question that judges at the ICTY actively engaged in the progressive development of the law. Was this judicial creativity in conformity with the principle of legality? Peat rejects any argument to the contrary, for two main reasons. First, he posits (p. 203) that a strict principle of legality was absent in the law of the international criminal tribunals from Nuremberg to the ad hoc tribunals. As Van Schaack has shown, nullum crimen sine lege was interpreted as a ‘flexible principle of justice that can yield to competing imperatives’. Be that as it may, is the ICTY’s malleable approach to the principle of legality the best benchmark against which to measure its own practice? The right to a fair trial, of which the principle of legality is part, is universal, indivisible and not dependent on the seriousness or otherwise of the crimes with which the accused is charged.

Second, and relatedly, Peat refers to the notion of ‘substantive justice’ in outweighing the principle, referring to concepts such as respecting victims’ rights and the battle against impunity. Thus, he concludes (p. 206), ‘the argument that the use of domestic law holds no weight with regard to the classification of oral sex as rape by the Trial Chamber in Furundžija… To critique the use of domestic law would have to be based on an argument of moral values, not law, the strength of which is unclear at best.’ I find this conclusion slightly problematic, insofar as (as discussed above), this conclusion in Furundžija was as much a product of a reference to the ‘general principle of dignity’ as it was the result of an extensive survey of domestic criminal law.

To conclude, Comparative Reasoning in International Courts and Tribunals is an insightful, thought-provoking and paradigm-shifting work in international legal scholarship. The ICTY’s use of domestic law to fill gaps in its legal framework and/or bolster the legitimacy of its judgments (even in contexts where those conclusions were not actually based on its comparative legal analysis) certainly provides some interesting insights into judicial law-making in international law. I look forward to following Peat’s future work in this space, particularly in light of his more recent turn towards empirical methods to analyse the use of domestic law by international courts, to learn how this practice continues to evolve.