Book Symposium: Comparative Reasoning in International Courts and Tribunals: A Response

In this symposium, Richard, Yvonne, and Antonios have all kindly taken the time to engage with some of the issues raised in Comparative Reasoning and I would like to take this chance to respond to some of their points. In the interests of space, I’ll limit myself to two issues: first, I will clarify some of my arguments regarding the ICTY’s jurisprudence; and, second, I’ll say a few words about whether (or when) discussing interpretation ‘starts yielding quickly diminishing results’, in Antonios’ words.

Comparative Reasoning & the ICTY

In her post, Yvonne argues that the ICTY has disregarded comparative surveys of domestic law in favour of interpretations informed by ‘broader principles and the aims of the Tribunal’. As a result, she suggests that the Tribunal might not be the best example from which to draw general lessons regarding comparative reasoning.

I certainly agree that the ad hoc criminal tribunals operated in a unique legal, historical, and political context, and I’m careful not to generalise lessons learned from my study of the ICTY. I do think, however, that the ICTY serves as a useful example of how comparative reasoning has been adopted to elaborate procedural and substantive rules in a nascent legal regime. The disagreement between Yvonne and I seems to stem from different readings of the case law and I’d like to take this opportunity to set out what I argue in the book in a little more detail.

In the book, I argue that the Trial Chamber’s interpretation of the crime of rape in Furundžija has had an enduring impact on international criminal law as we know it today and that comparative reasoning played an important role in this. Yvonne suggests that the weight that I place on the Trial Chamber’s judgement in Furundžija is misplaced because the Trial Chamber defined rape in reference to the principle of human dignity, not domestic law.

In my view, this is incorrect, and it helps if we break the Trial Chamber’s reasoning down into three steps to see why. First, the Chamber stated that ‘no definition of rape can be found in international law’ (here, at para. 175), and continued to state that ‘to arrive at an accurate definition of rape…it is necessary to look for principles of law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws.’ (ibid., at para. 177). Second, the Chamber then surveyed the definition of rape in 18 domestic jurisdictions, stating that ‘all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim’ (ibid., at para. 180). Similarly, in order to define the actus reus of rape, it noted that ‘most legal systems in the common and civil law worlds consider rape to be the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or anus’ (ibid., at para. 181). Finally, as Yvonne notes, the Chamber stated that ‘[a] major discrepancy may…be discerned in the criminalisation of forced oral penetration’ (ibid., at para. 182). ‘Faced with this lack of uniformity’, the Chamber reasoned teleologically, concluding that forced oral sex must fall within the definition of rape because that act offends human dignity, the very principle that it considered to underpin IHL and human rights law (ibid., at para. 183).

At the end of this process, the Trial Chamber defined rape as follows:

“(i) the sexual penetration, however slight:

   (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or

   (b) of the mouth of the victim by the penis of the perpetrator;

(ii)  by coercion or force or threat of force against the victim or a third person”

(ibid., at para. 185).

As I state in Comparative Reasoning (p. 190), limbs (i)(a) and (ii) of this definition are clearly attributable to the comparative reasoning of the Trial Chamber (step 2 in the reasoning I describe above), and not to the Chamber’s reference to human dignity. The inclusion of forced oral sex in the definition of rape is something that, as I explicitly recognise in the book, ‘might be critiqued, [but] such criticism cannot be placed at the foot of the Trial Chamber’s use of domestic law’ (p. 203). 

This leads to a related point that Yvonne makes regarding the principle of legality. Because the inclusion of forced oral sex in the definition of rape was not attributable to the Chamber’s comparative reasoning, I argue in the book that ‘the argument that the use of domestic law breached the principle of legality holds no weight with the regard to the classification of oral sex as rape by the Trial Chamber in Furundžija’ (p. 203). This is a conclusion that Yvonne finds to be ‘slightly problematic’. However, as I explain above, in my reading of the case, domestic law didn’t play a role in determining whether forced oral sex constituted rape, so the consistency of comparative reasoning with the principle of legality simply doesn’t come into play.

In short, I think that the jurisprudence of the ICTY examined in Comparative Reasoning provides an illustrative example of how domestic law has been used by a tribunal operating within a nascent legal regime, one that – as Yvonne and I agree – was characterised by extensive judicial law-making.

The Law of Diminishing Returns?

It seems that Antonios and I are largely on the same page about many issues regarding interpretation: there are often (at least) several plausible interpretations of a treaty; interpretation is inevitably a subjective enterprise; and black-letter arguments about interpretation are often used as subterfuge for the advancements of ‘political’ interests, broadly-understood.

Antonios suggests that our principal disagreement is my emphasis on how comparative reasoning ‘is somehow beyond the VCLT rules on interpretation and how we need to be liberated from the VCLT framework to understand what is going on here’. I don’t think that this is actually a point of difference between us at all: we both agree that proper debates about interpretation shouldn’t be obfuscated by doctrinal discussions about the ‘proper application of the rules of interpretation’. Indeed, in my view, Comparative Reasoning is not an example of the kind of black-letter approach to interpretation that Antonios criticises, and I hope that EJIL:Talk! readers will agree.

As I emphasise throughout the book, in order to understand and evaluate the use of domestic law in interpretation – and to understand interpretation more broadly – we need to engage with the values that motivate that interpretation and those that we consider the legal regime should uphold or promote (see e.g. pp. 47, 136-137, 177). In Chapter 5, I include a quote from Neil MacCormick that captures this approach perfectly: ‘the whole enterprise of explicating and expounding criteria and forms of good legal reasoning has to be in the context of the fundamental values that we impute to legal order’ (p. 139).

This is brought to the fore when I discuss the ‘evaluative dimension’ of the Vienna Convention rules in Chapter 2. In brief, I argue that Articles 31 and 32 of the Vienna Convention were never conceived of as being a benchmark against which we can evaluate interpretation. Instead, I argue that ‘in order to evaluate whether an interpretation is appropriate in a given instance, we need to enquire further into the context in which the interpretation occurs and the values that underpin the particular legal regime’ (p. 47). This would seem to be along the lines of what Antonios suggests when he says that we should not argue about the rules of interpretation, but rather debate the subjective views and values that underpin different interpretations. Hopefully, then, readers of Comparative Reasoning will find that their efforts are not subject to the decreasing marginal returns of which Antonios warns…

So that, in the end, seems to be a point on which we agree.

However, there would appear to be a point on which we disagree. At the end of his contribution, Antonios argues that due to the influence of subjective factors on interpretation, ‘there is very little the law can say about interpretation altogether’. If I understand him correctly, this is a plea to scholars to move beyond the provisions of the Vienna Convention to explore, understand, and evaluate the factors that motivate interpretation, a plea with which I am in complete agreement.

However, to say ‘the law’ has nothing to say about interpretation seems wrong to me. As lawyers, we focus on what the law is, how it’s applied, whether it is good or bad, and how it can be improved. To do this well, we cannot just focus on legal rules. Understood as an object of study, ‘the law’ must be something broader: it must encompass not only the legal rules, but also the political, historical, and subjective factors that affect the operation of those rules. Perhaps, in the end, this just comes down to a question of definition: Antonios considers the law to be limited to legal rules; I consider it to be something broader. Both of us seem to agree, however, that international lawyers need to be able to identify and engage with factors that influence interpretation beyond the provisions of the VCLT, and I hope that Comparative Reasoning does precisely this.

I’d like to close by saying thank you to Richard, Yvonne, and Antonios for participating in the symposium, as well as to the members of the EJIL:Talk! Team for their organisation. I look forward to continuing the discussion in the comments section, by email, or even – one day – in person.