It’s alive! Judicial activity (activism?) at The Special Tribunal For Lebanon

In the past week, the Special Tribunal for Lebanon, set up in 2007 to prosecute those responsible for the death of Rafik Hariri on the 14 February 2005, has issued several decisions, which, if nothing else, prove that it is still alive. It is however symptomatic of how little progress it is making, at least publicly, that its most important “case” is whether a person arrested and detained for four years in relation to the attack… and then released due to insufficient evidence(!) could request access to his criminal file…

Before deciding on this issue, the President of the Tribunal, Judge Antonio Cassese, had to decide on the motions for disqualification of two Lebanese judges, Judge Riachy and Judge Chamseddine, the former for, among other things, having been involved in the case as a judge on the Lebanese Cour de Cassation before his appointment to the STL, and the latter for having been appointed by an alledgedly biased government. Beyond the legal analysis of the concept of bias in both decisions, and the unsurprising rejection of both motions, there is a noteworthy policy consideration in the  Chamseddine decision:

19. As for the appearance of bias, applying the test commonly employed for ascertaining such an appearance (namely, viewing the facts presented through a hypothetical fair-minded observer with sufficient knowledge of the actual circumstances to make a reasonable judgment), I am satisfied that Judge Chamseddine’s nomination by the Lebanese authorities does not create any appearance of bias. Time and again the ICTY and other international tribunals have stated that the nationalities of Judges and the policies of their governments are irrelevant for the purposes of determining impartiality. I only add that the Applicant’s submissions, if accepted, would have the deplorable effect that no Lebanese judge could ever sit on any Chamber of the Tribunal – thus frustrating the very nature of its ‘hybrid’ character, with all of the consequences this entails.

This is certainly true on a case by case analysis, but it still raises the issue of the ambiguity of how international justice intervenes in the first place, especially in “hybrid” fashion. The whole point of international justice is that the national system, presumably including its personnel, is inadequate, because of security, lack of ressources, political pressure, risks of partiality etc. This justified the creation of the ICTY/ICTR removed from local politics. It failed in many ways, but at least the message was clear.
What the “hybrid” model aims at doing is re-introduce some national element to increase “local ownership”, but incidentally it also imports within the tribunal, the difficulties that had made its creation necessary (for some) in the first place.Why create a hybrid institution if all is fine (including the judges) with the Lebanese judicial system? Why would the national judges be free of possible pressure when sitting in the Hague? and alternatively, if all it takes is that, why create a hybrid court, rather than just have a lebanese criminal court sit elsewhere than Lebanon? Cassese is right to say that a contrary decision would have defeated the purpose of the tribunal, but one can wonder if the purpose itself need not be rethought…

Moving on to the main decision regarding jurisdiction and standing, the Appeals Chamber had to decide whether, despite the limited scope of its mandate, which is to prosecute those responsible for Hariri’s death (and some other related acts), the STL could still have jurisdiction to pronounce itself on the request for access of the criminal file by a formerly detained person which is not a suspect, and whether this person has standing. The answer is “yes” on both counts and I’d like to make two series of remarks on the reasoning.

1. The basis for the decision is the famous “inherent jurisdiction” of the Tribunal to “determine incidental legal issues which arise as a direct consequence of the procedures which the Tribunal is seized by reason of the matter falling under its primary jurisdiction” (§45), even when not explicitely envisioned by the founding documents. This theory has often been used, but its legal foundation has always been unclear. Not so anymore, thanks to Judge Cassese:

“47. The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.”

This is an extravagantly drafted paragraph on customary law, and shows that the STL will follow in the steps of its predecessors in its approach to this issue, which is unsurprising, given the presence of Antonio Cassese, who started the ball rolling on the “death by judicial activism” of positivism in ICL as President of the ICTY. Still, there are so many unconventional aspects in this statement that I don’t know where I could begin.

First of all, since when do non-state actors contribute to the creation of international custom and, linked to this, since when has “State practice” become simply “practice”? International courts have often shown flexibility in assessing the existence of custom and have often resorted to practice of non-State entities (see the recent Cambodia judgement I commented upon). But I don’t recall seeing it being so exclusively the basis for the customary norm, with the intervention of States being relegated to having to explicitly oppose such a practice. The core should always be State practice, even if you show more or less flexibility in introducing supporting evidence from other actors.

Second of all, the reasoning is not that clear semantically. The first sentence refers to the existence of a  “general rule of international law” created by international practice, and the second one refers more explicitly to customary law, with slightly different conditions (lack of objection in one case, and implicit acceptance in the other). Several interpretations are possible. 1) We are faced with two different types of norms, which raises the question of the link between the two. 2) Customary law is a sub-category of “general rules of international law”, which raises the question of what exactly are “international practice-created” general rules. 3) What seems more likely, is that the judges are using the terms to cover the same thing, which implies, given the different formulations of the two sentences, that the “lack of objection” in the first part of the paragraph is the same as the “implicit acceptance” in the second part of the paragraph. This is an intellectual shortcut (lack of objection might, but does not necessarily mean consent) which would require more elaboration. What is certain, is that this paragraph shows, if not incompetence, at least drafting laziness. It is unprofessional to argue in such a way, such an important issue of international law, with so much unclarity.
Which begs a more general comment on how such an estimed scholar as Antonio Cassese can pen such ill-argued judicial decisions? Or maybe, he has reached such a position in international criminal law that he doesn’t need to justify his legal reasoning anymore, just to affirm his legal opinion which passes instantly for legal norms. Which is fair enough, but should he then really be a judge, with the limits that should normally be attached to the function, rather than be an independent (and influential) academic?

Finally, and more fundamentally in my opinion, beyond the debate on the rules relating to the formation of customary law, one has to move back a step and wonder if falls at all in the area of customary law. In the case of inherent powers, we are trying to ascertain an unwritten rule (in a generic sense) relating to the exercise of jurisdiction by international tribunals. How can there ever be national State practice of an international tribunal? it’s contextually impossible. The link to States would more logically be found in the establishment of a general principle of law, or, if one wants to show some “progressive thinking”, a new category of international procedural principles. Indeed, the STL’s drafting is a illustration of a tendency to move towards an autonomised view of the international legal judiciary, but hiding behind a traditional approach. Whether one agrees with this ideology or not, intellectual honesty would require to move away from the traditional notions of sources of international law, and use new ones, rather than trick us into thinking that we are faced with technical changes to the formation of customary law, rather than radical changes in the approach to the international legal order. Methodologically, we must avoid the illusion of thinking that because we use the same term, we are talking about the same thing. It is not because I call a chair a “chair” and a glass a “chair” as well, that you should start comparing them. You will first start by pointing out that this glass, is in fact a glass, not a chair. It is the same here, if we are to speak a common language as scholars and if words are not empty shells, one cannot accept that the “customary law” described by the STL is at all comparable to the “customary law” we had been using before. This is a semantic trap which we should avoid falling into.

[update: Marko Milanovic, over at EJIL Talk!, has also commented on this issue, with the same doubts about the reasoning.]

On the substance of the decision, I’m not entirely convinced by the fact that the STL in fact does have jurisdiction to hear the Applicant on this issue, or that he should have standing. He was arrested in 2005, and was held in custody by Lebanese authorities, not the STL, for 4 years. When the Tribunal started functioning in April 2009, it ordered the release of the person in a little over two weeks. So for the whole period of detention, the STL had some form of authority over him for two weeks, and only through inaction, rather than a positive desire to keep him in custody. My initial reaction would be that it’s not the STL’s fault or problem if Lebanese authorities violated his rights for so long. Human rights don’t exist in an institutional void. The STL never indicted him, considered him as a suspect and more importantly, ordered his detention . He therefore has no procedural rights in relation to that institution. The STL does not technically possess his “criminal” file which he would have a right to access, because it never initiated proceedings of any sort against him. He should turn towards the authorities that did decide on his imprisonment, that is the national ones. If a national judge considers that he should have access to elements in possession of the STL, then it becomes an issue of cooperation between the two orders, which is political and logistical, depending on the arrangements made between the STL and the Lebanese governement, but not judicial in the sense that the Appeals Chamber has considered it as related to the rights of the Applicant, and it therefore certainly doesn’t mean that the Applicant should have standing directly before the STL.

This decision is in my view due to a confusion on the exact nature of these international institutions, which are meant to be criminal, but see themselves as human rights institutions. However, in the case of the STL, one can only sympathize with its identity crisis. It’s a “hybrid” court, created by treaty/the Security Council, which cannot therefore be considered national, but that has jurisdiction exclusively over crimes contained in the lebanese criminal code, which makes it technically difficult to call it an “international criminal tribunal”. The Tribunal is certainly alive, but, torn between different logics, orders and traditions, one has to wonder whether it should have been created at all, and, now that it has, whether is should not be allowed to be “borne away by the waves, and lost in darkness and distance”.

3 responses to “It’s alive! Judicial activity (activism?) at The Special Tribunal For Lebanon

  1. Interesting post, Dov – but I could not disagree more. On the substance, the files on El Sayed are with the STL – no other institution in the world would be able to give these files to him, due to the STL's immunities in the Netherlands and Lebanon. So, it is clear that the STL must have jurisdiction over the documents and any request in respect to them. I do not see anything wrong with this conclusion: it boils down to saying that what is in the possession of an IO is within its jurisdiction, no more, no less. The way Sayed gets access might as well resemble what you envisage (i.e., Syrian or Lebanese judges asking judicial cooperation to the STL on the documents), but this is a matter for the merits – if the STL did not have jurisdiction, then it would not be even able to respond to such requests from other subjects of international law!While I agree that in this specific case it would probably be a general principle rather than custom, I still do not agree with your take on custom. As I wrote on EJIL Talk, there is simply too much non-state practice contributing to creating custom to ignore it. In particular, how would you envisage a customary rule to emerge in relation to IOs (including international criminal tribunals), if not through the conduct of these IOs? It would be like saying, for instance, that UN practice on peacekeeping is irrelevant to the creation of customary rules on peacekeeping operations simply because the UN is not a state – this is absurd, it is clear that UN practice is the paramount criterion to ascertain the rules applicable to peacekeeping Operations. There are several other examples. Custom is simply a process of claims and counterclaims by subjects of international law and other participants, it has always been like this from Westphalia onwards, with subjects like the Holy See, insurgents, IOs, (arbitral and now criminal) tribunals, IGOs like the ICRC and others playing very important roles in small areas of the law.There are a lot of authors and authorities referring to "practice" and not "state practice" in the creation of custom (ICRC in primis, not the most progressive institution) – so I do not see anything dishonest in this decision.Guy

  2. Dear Guy, Thank you for the comments.On the first one, I agree with you that more on the jurisdictional aspect, which is why I insist more (but should have probably said it more clearly) on the question of standing. In a nutshell, I think that even if the STL might have jurisdiction, I am less convinced that El Sayed has standing, as affirmed by the STL.On customary law, I think we will necessarily disagree methodologically. When you say " there is simply too much non-state practice contributing to creating custom to ignore it", I feel compelled to answer "who says that it's contributing to creating custom in the first place?". Indeed, what you pass as a fact, is already a ideological choice.As for your point on IOs, I perfectly agree (as I acknowledge in my post) that you can logically never have State practice. And I agree that you have to establish the rules pertaining to the practice of IOs through the analysis of the practice of those IOs. I just find it confusing to call it "customary law" at all. We are not describing the same things, so should use different words.Maybe it's a little harsh to consider the decision as dishonest. But would you at least agree that it is sloppy?

  3. Not really, before doing that I would have to check all of the footnote references made. If these are convincing and indeed show a pattern, I would say that it is a good discussion – much better in fact than how Tadic had been drafted on non-international armed conflicts, which has now been accepted as custom by most!Sorry I am probably missing the point on custom – are you suggesting a new source of law outside treaties, custom and general principles, a new source binding IOs only, that is made up of general practice and opinio juris of IOs but is to be called something different than custom?How would you call, for instance, practice+opinio juris of IOs with respect to international responsibility of IOs? Wouldn't this be custom?Ideological accusations aside, I hope you do not expect people to put in a blog what one could not put even in a monograph – sufficient non-state actors practice to show custom. But are you seriously saying that the practice and findings of the non-state actors I mention above have not contributed to creating customary law in areas such as investment law (WTO, World Bank, arbitral tribunals), succession in relation to debts (WTO, World Bank), human rights law (the UN, Council of Europe), humanitarian law (ICRC, insurgents, international tribunals), international treaties of IOs (UN, EU), international responsibility of IOs (UN, EU) and so on? I think we shall agree to disagree, no hard feelings, I hope…

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