Special Tribunal for Lebanon Delivers Interlocutory Decision on Applicable Law

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Today the Appeals Chamber of the Special Tribunal for Lebanon delivered an interlocutory decision on several points of applicable law before the Tribunal. It has essentially done so in an advisory fashion, at the request of the pre-trial judge, in order to provide him with adequate guidance with respect to 15 questions of law. In other words, the Appeals Chamber rendered this decision without actually having a concrete case before it, after having heard the submissions of the prosecution and the defense office on the legal issues in question. The 150-page decision is available here; a summary read out by President Cassese is available here.

This is an incredibly rich decision – if you will (and appropriately enough bearing in mind Judge Cassese’s involvement), the STL’s Tadic. I am sure that it will provoke much discussion, and not a little bit of controversy. I had so far only given the decision a very quick skim, but let me try to point out some of the most interesting developments.

The Appeals Chamber held, inter alia, that customary international law now recognizes a distinct crime of terrorism in peacetime. Notably, the Chamber held not only that a customary rule exists between states that they need to suppress terrorist crimes, but that a customary rule applicable to individuals has evolved, directly creating a true international crime. This is of course a position that Judge Cassese has been advocating for some time extra-curially – see e.g. his International Criminal Law textbook. That position is however controversial to say the least – see e.g. the textbook by Cryer et al, 2nd ed., at p. 338 ff. Now, note that the STL is actually bound by its Statute to apply Lebanese substantive criminal law, and its own definition of terrorism (on which the Chamber has several things to say); to that extent whether or not customary international law recognizes a distinct crime of terrorism is beside the point. Its only relevance is that the Chamber has held that in cases of doubt it will interpret Lebanese law so that it conforms with international law, but it was hardly necessary for it to reach the very ‘activist’ conclusion that terrorism has now become a true international crime, like genocide, crimes against humanity and war crimes. Whether the Chamber’s analysis of the relevant state practice and opinio juris is to be considered persuasive outside the STL remains to be seen.

Several years ago, I published an article in the JICJ in which I anticipated another problem which the Chamber had to deal with today. Namely, while the STL Statute provides that the only body of applicable law is Lebanese law, it at the same time allows the application of uniquely international forms of individual criminal responsibility, namely common purpose (or joint criminal enterprise, particularly its third or extended type) and command responsibility. I argued that applying these forms responsibility to the individuals accused of assassinating Hariri would violate the principle of legality, nullum crimen sine lege, as it would allow for the punishment of individuals who could not be punished under Lebanese law, the only relevant body of substantive law. Before the Appeals Chamber, the defense office developed this legality argument in great detail, while the prosecution argued that under the plain language of the Statute it could rely on international forms of responsibility in all circumstances.

The Appeals Chamber did not agree with either approach (paras. 210-211):

Several principles guide our analysis, and should also guide the Pre-Trial Judge and the Trial Chamber when they consider specific cases before them. The Tribunal must reconcile any inconsistencies between Articles 2 and 3 in light of the general principles of interpretation enunciated above. First, as discussed above regarding the definition of terrorism, the drafters of the Statute favoured Lebanese law over international criminal law in terms of substantive crimes, as set out in Article 2. However, and this is our second remark, Article 2 also includes the proviso that Lebanese law, including the regulation of “criminal participation”, should apply “subject to the provisions of this Statute”, and it is clear that the drafters of the Statute intended to incorporate through Article 3 modes of criminal responsibility recognised in international criminal law. The Appeals Chamber cannot just assume that Article 3 was a mistake and should not be considered part and parcel of the Statute. Third, the principle of nullum crimen (in particular, its non-retroactivity requirement) applies not only to substantive crimes, but also to modes of criminal responsibility.

Applying these three principles, we conclude that generally speaking the appropriate approach is to (i) evaluate on a case-by-case basis whether there is any actual conflict between the application of Lebanese law and that of the international criminal law embodied in Article 3; (ii) if there is no conflict, apply Lebanese law; and (iii) if there is a conflict, apply the law that would lead to a result more favourable to the rights of the accused.

The Chamber also touched upon the further issue whether JCE III, which in essence has a mens rea of foreseeability, can apply to specific intent crimes such as genocide or here terrorism. Contrary to the case law of the ICTY, the Chamber has held that JCE III could NOT apply to dolus specialis crimes (paras. 248-249).  The fragmentation of international criminal law is well and truly upon us! On a different note, the Chamber also added that the concept of perpetration by means, much-loved by German scholars and now employed in several cases before the ICC, is not a form of individual criminal responsibility under customary international law, nor before the STL (on the possible consequences of the non-customary nature of the perpetration by means, see more here).

The Chamber justified the application of international forms of responsibility by comparing them to forms of responsibility in Lebanese law, and concluding that they overlapped to a great extent. However, in its view it is the international forms of responsibility that may in some cases be more favourable to the defendant, and it is they that should then be applied (para. 262):

Should there be a conflict, however, the Pre-Trial Judge and (in due course) the Trial Chamber will have to consider which source of law leads to the greatest protection for the rights of the accused. One such situation has already presented itself in the course of our theoretical analysis: under JCE III as applied by the Tribunal, the extra foreseeable (but un-concerted) offence may not be a terrorist act (or other criminal offence that requires special intent), but only another offence requiring general intent such as homicide. On the other hand, under Lebanese law, one could be convicted of a terrorist act for which one harbours only dolus eventualis (that is, it was foreseeable that the terrorist act would occur, but the person accused did not specifically intend to spread terror). If such a case were to be presented to the Pre-Trial Judge, depending on the circumstances, the mode of responsibility under international criminal law-JCE Ill-might be applied as it is more protective of the rights of the accused.

Now this is something that we don’t see every day – JCE III as more protective of the rights of the accused. Whether the Chamber’s hypo will have practical relevance will of course depend on the application of Lebanese law to specific facts, something that we can’t consider at this time.  Also, I am not exactly sure why, but unless I’m mistaken the Chamber makes no mention of command or superior responsibility, even though it is set out in Art. 3(2) of the STL Statute, and even though it raises the same potential legality problems as JCE. Nonetheless, bearing in mind the general principles that the Chamber has articulated, it seems likely that the STL will in all but the most exceptional of situations be applying Lebanese law (as it should) BOTH with regard to definitions of crimes AND with regard to forms of responsibility. In essence, the approach it took allowed the Chamber to achieve a result that is consistent with the principle of legality, but at the same time avoid ruling that Art. 3 of the Statute is for practical purposes a nullity.

To sum up, this is a very important and very rich decision. Further comments on it would be most welcome.

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Guillermo Otalora Lozano says

February 17, 2011

The Chamber's method for finding and proving customary law is quite interesting. In order to hedge the criticism leveled at other Cassese decisions, the Chamber actually held that it does not need to prove opinio juris, rather it is for the new rule's detractors to prove the absence of opinio juris:

"Even if the view were taken that those national judgments
do not advert, not even implicitly, to a customary international rule nor explicitly note that they reflect an international obligation of the State nor express a feeling of international legal obligation,
nevertheless our conclusion stands. It is supported by the legal criteria suggested on the basis of careful scrutiny of international case law by a distinguished international lawyer, Max Sorensen.
According to him one should assume as a starting point the presumption of the existence of opinio juris whenever a finding is made of a consistent practice; it would follow that if one sought to deny in such instances the existence of a customary rule, one must point to the reasons of expediency or those based on comity or political convenience that support the denial of the customary rule"

This is not new, and Sorensen was not the last to mention this theory. Mendelson (1998 RdC) also suggested that a sufficient density of practice would make it unnecessary to also prove opinio juris.

This issue is far from theoretical, since the dictum is particularly useful to activist customary law-making. The greatest criticism made towards customary law projects (such as the ICRC's two-volume rulebook on IHL) has been the absence of proof of distinct opinio juris.

Dov Jacobs says

February 17, 2011

Thanks for posting this Marko. I look forward to the joys of reading the decision in full, especially after Guillermo's comment on the formation of customary law, which seems to be in line with the previous STL decisions we commented a few months back in the deconstruction of traditional customary law (if it still existed of course).

Just a quick point on procedure. I'm puzzled at why we have this decision at all. It comes from a provision in the RPE which was (conveniently) introduced in November allowing the PT judge to submit such questions to the AC. I don't see why this should be allowed. It completely sidesteps the judicial process. What if the parties would argue differently in Court? What if a Trial Chamber disagrees? It leaves no room for judicial dissent, and basically gives all the power to the AC, i.e Judge Cassese. Once again, it confirms the impression that this is the "Cassese Tribunal".
I would argue that this rule of the RPE is ultra vires for giving the AC a power it isn't granted under the Statute. At best, this document is indicative and can have no authoritative value. In this sense, it is erroneously called a "decision" and the AC erroneously uses the word "determines" in the motifs. It determines nothing.

On a policy level, I don't understand why they give the judges the power to draft the RPE after the fiasco of the ad hoc tribunals, where the RPE was changed time and again to fit the desideratas of the judges and justify in hindsight some serious flaws in their reasoning. Not to mention the creation of new offenses such as contempt.

Any thoughts on this?

Just Me says

February 17, 2011

Very strange comments, Dov! What is the difference between this decision and any decision by a Supreme Court in a common law country? Can you argue before the US Supreme Court that the law established in Miranda, for instance, is bad because you would have argued it differently? Of course not - as I see it, this is just a way to assist OTP and Defence is preparing their arguments due to the sloppy way in which the STL Statute was drafted - the law does not need to be necessarily discussed by the parties to be decided upon by the Judges, especially in a civil-law based system (and the STL RPE anyway allow reconsideration of points of law without leave of the Judges, so...)

More generally, however, I think this decision is indeed problematic in many substantive respects - but why are people so keen on pinning decisions on just one of the five Judges? For instance, I know Judge Baragwanath on the STL Appeals Chamber and I am sure that he cannot be just forced into signing something he does not fully share. Why do you consider this just a Cassese product? Tadic was presided over by Judge Shahabuddeen (hardly a legal light weight): why is JCE considered only Cassese's child?

Dov Jacobs says

February 17, 2011

Just to make my thoughts clear: I'm of course not arguing against several degrees of jurisdiction, or the legitimacy of supreme court decisions. I'm against this specific leapfrog procedure which comes independendly of a dispute, in contrast to the examples you gave. To the best of my knowledge, first instance judges in national jurisdictions do not refer to supreme courts directly before reaching their decision. It goes through the whole judicial process, and then reaches (or not) the supreme court. Of course the fact that the parties disagree with a decision does not make it "bad" as you put it. But again, this referal directly to the AC before there is even a case, shortcircuits the whole system and does raise the question of the authority of the decision. ICL has evolved through a fragile balance between various opinions expressed at different stages of international proceedings, and this system just seems to be designed to stiffle any dissent in the bud. But maybe I'm just being paranoid...

I appreciate your point about "helping" the Prosecution and defense (although in this case, the questions were raised by the Pre-Trial Judge to assist him in the assesment of the indictments...). I'm entirely agree that the Statute is sloppy and needs clarification. But I still think it's not the Appeals Chamber's role to do so because there is then a confusion in the functional separation of roles. This is an Appeals Chamber, not a consultative interpretative body.

As for the comment on Cassese, it might be a little exagerated indeed. I perfectly agree that we have witnessed sloppy legal reasoning from a large number of other international judges as well, be they legal heavywights or not. This is what you meant, of course?

Guillermo Otalora Lozano says

February 17, 2011

I would comment on two particular points of your last post. First, it is not uncommon for courts to exercise jurisdiction in abstracto. That is how many constitutional courts function in continental Europe and in my own jurisdiction in Latin America. In fact, the Italian Constitutional Court's main vehicle of judicial review is the "question of constitutionality", which is a legal question raised in abstracto by a lower judge. When the judge raises the question, proceedings are put on hold until the Court decides on the constitutional issue that bears on the proceedings. In Spain and Germany, parliamentary minorities may have the Courts review legislation on their constitutionality. In Colombia, some types of legislation are reviewed ex officio for constitutionality before the legislation is even enacted. In short, ex ante review is not at all exotic in judicial procedures in the world. It is not a very 'common law' way of doing things, but it is not really a rare thing to do in other jurisdictions. Advisory jurisdiction is also common in many international courts: ICJ, Inter-American Court of Human Rights, International Tribunal of the Law of the Sea, to name a few.

In any case, in making this decision the Appeals Chamber took care to point out that it will revisit the issue if it is litigated by an eventual accused.

So I see your point on giving judges the power to draft their own RPE, but I don't think this kind of procedure in itself is outrageous at all. It is merely a more pragmatic way of seeing the judicial function. Why wait years until the Appeals Chamber decides to overturn the basis of the first decision issued, if it can correct the course of lower Chambers' decisions at the outset?

My second comment is more of a question, and turns to your remark that this is "sloppy legal reasoning". Why do you think that these "Cassese decisions" (if one can call them that) would merit that label?

Dov Jacobs says

February 17, 2011

Thank you for your comments Guillermo. I didn't think I would spark such a debate! I decided to write a entry on my blog about this, where I respond to your remark.


In a nutshell, I don't find your examples relevant. The AC is not a constitutional court, and in any case, what it does here is not the same as a constitutionality test. I don't know of any examples where a national court would go to a higher court on the interpretation of a law (as opposed to its legality or constitutionality, as in the examples you give). Nor is the AC an international court that was granted a power to issue advisory opinions. It is a criminal chamber within the framework of the STL and, bottom line, if the drafters wanted it to have such a role, it should have said so exclicitely in the Statute.

As for the"sloppy legal reasoning", I'm not sure it is the place to enter this debate, but there are countless examples of this in decisions where Antonio Cassese was a judge, in relation to crimes against humanity in peace time, for example, or even the principle of legality in Tadic. Of course, it is a question of ideology and point of view. What I call "sloppy", some might call "progressive", and I am perfectly aware that a lot of what Cassese has advocated over the years has become commonly accepted by a large number of academics. But it doesn't make it "good" law... I hope we get other opportunities to discuss this!

Tamas Hoffmann says

February 18, 2011

Seems like a really interesting decision, though I seriously doubt it will have a similar effect as Tadic.
Nevertheless, it seems that Judge Cassese does not give up on attempting to transform international law using international courts as a vehicle. Even though Just me is right to question why this decision should be solely attributed to Judge Cassese, it bears all his hallmarks.

I'm sorry for the shameless self-promotion, but I have an article demonstrating how Cassese used the Tadic case to transform the customary law of non-international armed conflict.


Gautam says

February 19, 2011

I would be particularly interested to hear Prof. Milanovic's views on the Appeals Chamber using the principle of foreseeability to get around the nullum crimen sine lege proscription. Is it permissible to use a rather nebulous test of de facto foreseeability to get around the fact that the crime in question was not part of domestic Lebanese law, thus fulfilling the formal requirements of nullum crimen sine lege? Isn't this rather dangerous in that it has the potential of undermining the very doctrine itself, and reducing it to an entirely case-by-case analysis of individual - and rather subjective - foreseeability?