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

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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.

Indeed, on at least one occasion, the ad hoc Tribunals considered the processes of “review” and of “comparative analysis” as interchangeable. In Kunarac, the Trial Chamber had had recourse to various legislation and case laws in relation to the definition of rape. In describing this process, the ICTY Appeals Chamber in Kunarac termed it a “review” (at 127), while the ICTR Trial Chamber in Semanza  termed the same process a “comparative analysis” (at 345).

While it is undoubted that the collation of facts in the context of comparative law and the review of evidence in the context of customary international law share some important similarities, the two processes have to be distinguished.

Establishing a valid basis of comparability between the legal systems that are to be compared is a prerequisite of any comparative legal analysis. Furthermore, comparative law prescribes no minimum number of jurisdictions or systems to be compared. A meaningful comparative analysis can be had between just two or a few jurisdictions.

Article 38(1)(b) of the ICJ Statute, on the other hand, explicitly prescribes that, for the purposes of customary international law, evidence of a general practice has to be established. A review undertaken with the aim of clarifying the contents of customary international law has to be broad enough to provide evidence of an extensive and representative practice, although evidence that a practice is universal is not necessary. Contrary to comparative law, therefore, the review of evidence from just two or a few jurisdictions would not, normally, be sufficient for customary international law

Moreover, the establishment of a basis of comparability is not a prerequisite in customary international law. Indeed, in her review of evidence, in the context of clarifying customary international law, the international judge should not restrict her search to, for instance, only legal systems which share a common ideological basis.

Schmitthoff acknowledged that, in comparative analysis, some level of subjectivity was inevitable at the “collation of facts” phase. In undertaking comparative legal analysis with respect to a particular crime, for instance, the comparatist is not bound by the formal classification of this crime by the domestic criminal codes of States. The comparatist has the latitude to delve deeper and, having regard to the political, social and other context in the States under comparison, question whether the formal classifications are appropriate and/or whether other crimes, not formally classified as such, should also be included in the comparison. This is an inherently subjective exercise.

In reviewing the legislation and case law of, inter alia, national jurisdictions, in search of evidence for the clarification of customary international law, the international judge undertakes an eminently empirical review. In conducting this review, the primary objective of the international judge is to gather extensive and representative evidence that relates to the content of a rule of customary international law.

Given that the authority of the international judge to elucidate customary international law derives from State consent, she is not normally expected to second guess the formal, legal classifications of crimes by States or to undertake anything other than an impressionistic assessment of domestic legislation and case laws. The difference is therefore one of degree: the international judge is not expected to enter into the same level of critical analysis of legislation and case law as a comparatist. This is attested by 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) 2) who, in their research of early decisions of the ICTY, observe that “the judges in the Tribunal only quote the words of [domestic] legislation without interpreting and declaring their meaning.”

2. Comparative Law And General Principles Of Law

While the process of identifying general principles of law, like that of reviewing evidence for customary international law, may appear similar to the process of collating facts in the context of comparative law, there are, even here, some important distinctions.

Fundamentally, the method of identifying general principles is premised on the principle of representativeness. For instance, the ICTY Appeals Chamber in Kupreskic  made it clear that the threshold for identifying general principles of law is high, in the sense that it needed to be shown that the principle was part of most, if not all, national legal systems (at 75). Such a high threshold of representativeness is not generally a requirement of comparative law.

In reviewing the legislation and case laws of national jurisdictions in order to identify (or, indeed, to rule out) a general principle of law, the international judge is guided by imperatives of representativeness. Again, establishing a basis of comparability is not a prerequisite in the process.

This is bolstered by the fact that, although Article 38(1)(c) of the ICJ Statute still formally requires international judges to direct their attention towards general principles of law recognized by civilized nations, it is widely accepted that this qualification has become redundant, and reference to “civilized” nations is now broadly understood to mean all nations. Therefore, the criterion of “civilized”, which may have provided a possible basis for comparison, has given way to the imperative of representativeness.

Judge Shahabuddeen observed, in his declaration in the Furundzija appeal, that general principles of law were:

 not so much generalisations reached by application of comparative law … as particularizations of a common underlying sense of what is just in the circumstances. (at 260)

While a comparatist may seek to extract the “essence of rules”, an international judge, in drawing upon national principles for the purpose of identifying general principles of law, seeks out the “common underlying sense” of justice rather than the “essence” of the principles. The identification of general principles of law is not arrived at on the basis of a lowest common denominator formula but, rather, on the basis of justice and morality. The international judge does not, therefore, seek to establish the “commonality” or “essence” of a series of principles, rather, she seeks to determine what the interests of justice, on the basis of representativeness, require in the particular circumstances of the case. The process is juridical rather than technical

In her article, Ellis asserts that, if general principles are to be a viable source of law in a heterogeneous society, this source will have to be rethought. She holds that representativeness should be removed as a requirement for the identification of general principles and suggests, rather, that these should be grounded in the soundness and persuasiveness of legal argumentation:

This would mean that the validity of a general principle would have to be grounded in the soundness and persuasiveness of legal argumentation rather than in claims about the objective nature of law or implicit State consent.

 This argument is premised on a perception of general principles as mere generalizations, rather than, as Judge Shahabuddeen notes, particularizations of a common underlying sense of what is just in the circumstances.

Ellis recognizes that much of the controversy surrounding general principles relates to their underlying sources of validity, in that, recourse to general principles has sometimes been tainted with charges of judicial law-making. However, the alternative she advances is likely to exacerbate such controversy, because she proposes to do away altogether with the requirement of representativeness, which helps to preserve some degree of objectivity in the process and, rather, to ground general principles merely in the persuasiveness of the legal arguments of international judges.

According to this approach, general principles would emanate from sound and persuasive legal arguments, without there being any reference to whether these arguments are representative or whether they reflect the position of just one or a handful of jurisdictions.

D. Reflections On The Acceptance Of Narrow Inquiries

Judge Shahabuddeen has observed that “it should be recalled that international criminal law has not quite gone through the early phase of general international law, when the latter borrowed with relative freedom from West European domestic law.” Judges at the ad hoc Tribunals have alternated, through judicial interpretation, between further propagating this influence and seeking to supplant it by reference to the sui generis nature of the ad hoc Tribunals.

In her consideration of the ICTY Appeal Chamber’s approach in Erdemovic  in relation to the acceptance by the Tribunal of a guilty plea, Ellis notes that, “it was difficult to approach this matter from the point of view of general principles, because only common law systems know a guilty plea, and the judges could therefore not demonstrate the representativeness of any relevant principles. They concluded that reference could and should be had to common law adversarial systems from which the rule in the Statute was derived.”

She prefers this narrow inquiry, confined as it was to common law systems because it enabled the international judges to gain “insights generated by decades, even centuries, of collected experience at the municipal level.”

Indeed, she takes issue with Cassese for concluding that “such recourse was not permitted by law and, furthermore, was unacceptable.”

On his part, Cassese objected to the strong tendency to refer to adversarial systems in seeking to interpret and apply the statute, arguing that the result would skew the ICTY’s approach towards such systems. He found that all the guidance that the Tribunal required in considering a guilty plea could be found in the statute and rules of procedure.

In discussing the procedure for a motion for a judgement of acquittal after the close of the prosecution case, Bohlander and Findlay observe that in Jelisic, the ICTY Appeals Chamber took the view that this procedure has, with some exceptions, no real legislative equivalent in civil law systems. The Tribunal in this case was ready to accept a narrow inquiry and relied solely on common law sources which formally recognised such a procedure. Michael and Findlay, however, make the point that, had a more rigorous inquiry been undertaken, the Tribunal would have found that in some civil law States, such as Germany, “it is not exceptional for a judge in a criminal case, after having heard the prosecution evidence to tell the prosecution and the defence that he is not convinced beyond reasonable doubt of the prosecution case, that he does not need to hear the defence evidence at all, and intends to proceed to an acquittal at once.” The authors maintain that, had the Tribunal broadened the scope of inquiry on this question, the conclusion reached in practice may not have been different, “but it would be founded on a balanced and thoroughly researched basis.”

With respect to judicial interpretation, therefore, while the national legal traditions on which the articles and rules in question are modeled can provide some guidance, over-reliance on a narrow inquiry can lead to the perpetuation of the default position, according to which, as Byrne(‘The new public international lawyer and the hidden art of international criminal trial practice’, 25 Connecticut Journal of Int’l Law (2005) 243) notes, some international judges “interpret legal norms through the lexicons of their respective traditions”, rather than through a truly sui generis prism.  This contributes to the pervasive perception that some international judges simply “elevat[e] legal rules and concepts with which [they] are familiar from their own legal education and practice to the level of universal truths…”.

The argument may be made that, in accepting narrow inquiries, international judges are merely giving effect to the intention of the drafters of the statutes or rules of procedure, who may have borrowed a rule from a specific legal system. However, as Robinson holds (‘Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia’ 11 EJIL (2000) 3, 569), the key to the application of the statute and the rules of procedure is the use of the appropriate interpretative technique which gives weight to the four principles set out in Article 31(1) of the Vienna Convention on the Law of Treaties, of which drafter’s intention is just one component. Moreover, although a rule may have a common law or civil law origin, it is peculiar to the ad hoc Tribunals and, as such, must be interpreted and applied having regard to the context in which the ad hoc Tribunals are placed. An approach which restricts itself to a specific legal system tends to ignore the mandate of the ad hoc Tribunals to ensure international criminal procedure is not unduly influenced by a single legal tradition.

3. Conclusion

The readiness to accept narrow inquiries may imply a failure to understand the other legal traditions on offer. This approach may also imply a failure to recognise that international trials exhibit a number of features that differentiate them from national criminal proceedings. It does not take account of the specificity of international criminal proceedings and risks distorting the existing differences and forcing uncomfortable compromises. Unless the dangers inherent in the readiness to accept narrow inquiries are clearly emphasised, in the words of Bohlander and Findlay, “then the achievement of an international criminal justice, resilient and tolerant of plurality is a long way off.”

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Fabian Raimondo says

June 15, 2012

Dear Jaye and Aldo,

Many thanks for your posts, which I've read with great interest. I agree with you both that comparative law should play a critical role in the search for general principles of law. In my view, the ad hoc tribunals have at best mimicked the comparative law method, which I find somewhat regrettable.

In my research on general principles of law in the decisions of international criminal tribunals, I've found that the domestic legal systems that are most frequently invoked by the tribunals are, by far, those of Western Europe (in particular those of Germany, France, and England and Wales). The tribunals have also frequently invoked the legal systems of Australia, the USA, and Canada. In my view, the systematic reference to more or less the same domestic legal systems was a simplistic way to choose the samples, and it was inconsistent with a pluralist approach to international law in general and international criminal law in particular.

Although those domestic legal systems are representative of the Romano-Germanic or the Common Law legal family, i.e., the main world's legal families, many other domestic legal systems were more often than not neglected in the search for general principles of law. Now, if international law is the law of all nations, general principles of law should be conceived of not as being the legal principles common to a handful of States, but as common to all nations Hence, the tribunals could have chosen in a more balanced manner the domestic legal systems examined in the search for general principles of law. For example, they could have selected the domestic legal systems in accordance with a geographically equitable distribution -a kind of 'UN' approach. For if the inclusion of other domestic legal systems in the research does not per se change its outcome, the principles thus derived would enjoy greater legitimacy thanks to the effective demonstration of their worldwide recognition by nations.

Kind regards,

Aldo Zammit Borda says

June 17, 2012

Dear Fabián,

Many thanks for your post. I think your research on general principles of law in the decisions of international criminal tribunals raises some important points, particularly in drawing attention to the tendency of international criminal tribunals to rely on the legal principles common to only a handful of, usually Western, States.

I would be interested in learning whether your research considers any of the possible reasons for this, i.e. whether this occurs purely for operational reasons (including language and translation barriers, or accessibility issues, with respect to laws and principles from non-Western States). Or whether the focus on Western States is one which has far more imperialistic overtones – perhaps because the legal principles of Western States are seen to enjoy higher prestige or are considered to be more ‘advanced’.

In any event, it is for this reason that I develop the argument above that courts should, as far as possible, avoid narrow inquiries (restricted to just one legal system) even when this legal system conveniently provides all the answers. This is because, as you highlight above, there is the real danger that such an approach, if propagated, may lead to a disproportionate consideration of the legal principles common to only a handful of States.

Best regards,

Aldo Zammit Borda