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

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.

However, Jaye emphasised that she was not condoning a narrow inquiry. She was rather condoning the decision of other judges to examine rather than ignore information on guilty pleas that had been amassed in a range of places over a long period of time. And in fairness to her, in her article, Jaye acknowledges that “[t]here is a good deal of merit in Cassese’s approach. Concerns about the over-weening influence of one system at the expense of others are real, and the impacts of these subtle forms of domination on the legal system and on the actors – in the case of international criminal law, the individuals – whose actions are judged within it can be serious.”

Insofar as the matter relates to judges examining rather than ignoring information on a particular issue from specific legal systems, this is relatively uncontroversial. The question is, however, again, how are the findings from such an examination to be used? It may be argued that, unless care is taken, where an examination relates exclusively to a single legal system, there is a strong danger that that system will exert an “over-weening influence” at the expense of others.

With respect to the identification of general principles of law, Jaye holds that it is “preferable for judges to say that they are trying, with reference to municipal legal systems, to solve legal problems in a way that will make a positive contribution to international law more generally, rather than to claim that general principles derive their validity from state consent or from the objective nature of law.” This follows from her argument expounded in her article where she suggests that general principles should be grounded in the soundness and persuasiveness of legal argumentation, rather than in claims about the objective nature of law or implicit State consent.

While Jaye’s sentiment and her desire for more forthrightness with respect to general principles is understandable, I think her argument, particularly in the context of international criminal law, when considered in light of the principles of legality and nullum crimen sine lege, could be problematic.

While it is agreed that, on occasions, the manner in which general principles have been invoked by international criminal tribunals has been far from ideal, rather than arguing for a “rethink” of this formal source of international law, I think one should argue for a more systematic and rigorous application of Article 38(1)(c) of the ICJ Statute.

Grounding general principles on the soundness and persuasiveness of legal argumentation would run counter to the principle of legality. Bearing in mind that general principles constitute a formal source of international law, how is an accused to foresee which arguments will a posteriori be found to be sound and persuasive enough to give rise to a binding general principle of law at trial? It is hard to see – from the perspective of due process and rights of the accused – how such an approach can serve to “make a positive contribution to international law more generally”.