Category Archives: principle of legality

A Molotov Cocktail on the Principle of Legality: STL confirms contempt proceedings against legal persons

cross posted on The Invisible College]

In January 2014, a contempt judge of the Special Tribunal for Lebanon (STL) confirmed an indictment for contempt proceedings which included a legal person, a first for an international criminal tribunal. At the time, I raised some doubts about the reasoning of the judge, who applied a teleological reasoning that essentially allowed him to create law based on his own interpretative preferences. I also did not find convincing the idea that the interpretation of the term “person” for the purposes of contempt proceedings could be different than the interpretation of the same term in article 2 of the Statute of the Tribunal when it came to personal jurisdiction of the tribunal generally.

In July 2014, another contempt judge reversed the first ruling, considering that the term person should be interpreted narrowly in light of the principle of legality and could not include legal persons.

Last week, an Appeals Panel of the STL reversed this latter decision, held, by majority, that legal entities could be covered by contempt proceedings and, as a consequence, reinstated the proceedings against a media company. This decision is very interesting, and problematic, in the way it approaches the question of both inherent jurisdiction and general rules of interpretation and has just entered my top 10 worst argued decisions in ICL. It might even enter my top 3, along with the SCSL amnesty decision and the ICC Malawi decision on immunities.

It would take up too much space here to comment on the decision extensively, but I just want to highlight how the Appeals Panel has found the perfect Molotov cocktail to kill the principle of legality: the “spirit” of the statute combined with inherent jurisdiction.

  • The Spirit of the Statute

First of all, the decision seriously over-relies on what is called the “spirit” of the Statute as a source of interpretation, which, according to the judges, allows for a more “liberal” interpretation of the Rules (para. 27). This leads the judges to blame the contempt judge for interpreting the term “person” in accordance with the letter of the Statute rather than its spirit (!!!). The problem with that is that I don’t know what the “spirit” of the statute is. Trusting judges in relation to this spirit is like trusting the weird looking guy in the tent at the town fair that he can contact the spirit of your grandmother: he basically gets to tell you what he wants…

For the judges of the Appeals Panel, the spirit of the statute, in a nutshell, is the “fight against impunity” for those who obstruct the course of justice, which allows for a teleological interpretation that  includes legal entities. Once they have decided this, the judges look for anything under international law that would not allow them to interpret person in that way… At this point, it’s not even teleological interpretation anymore, it’s backwards reasoning in its purest form!

The Appeals Chamber makes an incredibly broad assessment of international and domestic pronouncements on corporate liability (in general, not necessarily for contempt!) to conclude that nothing prevents the judges from interpreting “person” in a broad way (para. 60).

Even  more amazing, the STL goes through the whole history of ICL where no legal entity was ever prosecuted for contempt or otherwise, but finds it unpersuasive, concluding that section with the extraordinary vague statement that “corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law” (para. 67).

“On the verge of attaining”? What a marvelous new source of law. Following the progressive view of the Appeals Panel, I suggest that Article 38(1) of the ICJ Statute now read as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;


e. Any norm on the verge of attaining the formal status of any of the above

  • The inherent jurisdiction of the Court

Inherent jurisdiction has always been a problematic issue, useful for creative judges over the years. But surely there has to be a limit to it. The problem is that the way the Appeals Panel uses it makes it extraordinarily large. There are a number of pronouncements in the decision on the (lack of) scope of the inherent jurisdiction of the tribunal, but this one wins the prize for honesty:

When operating within the realm of our inherent power, our jurisdiction remains undefined, only to be determined upon the crystallization of circumstances that call for a judicial pronouncement

In other words, we don’t know what our jurisdiction is, you don’t know what our jurisdiction is, but don’t worry and trust us: we’ll tell you when we get there. This cannot be how jurisdiction (inherent or otherwise) should work, especially in the current case of contempt (i.e, criminal) proceedings.

  • The end of the principle of legality

The problem with everything I have described so far is that we are here dealing with criminal charges, not a innocuous rule of procedure relating to the extension of the number of pages in a brief. Inherent jurisdiction cannot be used to trump the principles that should apply in criminal law matters, notably the principle of legality and its corresponding rules of interpretation: strict interpretation and in dubio pro reo. In that respect, someone should have pointed the judges to Article 22 of the Rome Statute.

In light of this, as pointed out by the dissenting judge, both human rights law and general principles of ICL should have led the judges to consider these basic principles in interpreting the term “person” in the RPE.

  • Some concluding thoughts

First, a logical point: as I pointed out in my previous post on this, for me the interpretation of term “person” in the RPE should necessarily mirror the interpretation of the term “person” in the Statute. If the STL cannot prosecute legal entities for killing Hariri, it cannot prosecute them for contempt. If not, as I said in my previous post and as picked up by the dissenting judge (who forgot to quote me…), the “spirit” of the statute would be that legal entities should not commit the horrendous and humanity-offending crime of publishing a list of witness, but can commit murder, bodily harm and terrorism without being bothered…

Second, a legal reasoning point: as with the first contempt judge who accepted the indictment for legal persons, the Appeals Panel essentially give us reasons why corporate entities ought to be held responsible for contempt. These might be valid reasons, but it’s not their job.

Third,  an argumentation point: the judges refer in an amazingly broad way to the evil that corporate entities can wrought upon the world. And this is just to extend contempt jurisdiction! It seems like overkill to me. What will the first international judge to prosecute a company for genocide be able to say?

Fourth, and finally, an endless point of frustration: the drafters of the STL Statute, in their infinite (lack of) wisdom, still thought it was a good idea to let judges write their own RPE. As a result, the RPE are written by the judges, can be changed by the judges as they please, and then get interpreted by the judges. In this context, it is somewhat farcical to see them pretend to find the higher “spirit” of the Statute, fill 30 pages of analysis of domestic legislation and international pronouncements on the responsibility of legal entities and provide general moral musings on corporate liability in order to divine the true meaning of the word “person”. But, judges wrote the RPE! Adding up pages of argumentation will not bring us any closer to telling us what they were thinking when they drafted the rules on contempt in the first place and answer this ultimately very simple question which seems to have been ignored in the entirety of these proceedings: if they thought that corporate liability for contempt was so important, to the point of it verging on attaining a legal status, why did they not include it, just to make everyone life easier down the road?

In any case, I’m not sure things are over yet. It is now 3-2 for judges who want to extend contempt to legal persons. Not a large consensus. Let’s see what happens next…

The ICC Katanga Judgment: A Commentary (part 1): Investigation, Interpretation and The Crimes

On 7 March 2014, Germain Katanga, a warlord from the DRC, was convicted as an accomplice for war crimes and crimes against humanity in the third Judgment issued by the International Criminal Court. The Judgment was rendered on a number of issues only by  majority, with a dissenting opinion by Judge van den Wyngaert and a concurring opinion by the other two judges.

One of the main reasons why this judgment was expected is that it is the final chapter (pending appeal) of a somewhat controversial process. Indeed, Katanga was initially tried as a co-perpetrator with Chui. However, in November 2012, a month before the judgment, during deliberations, a majority of the trial chamber 1) severed the cases  2) announced that the judgment for Chui would take place as planned (he was acquitted) and 3) informed the defense that there might be a legal recharacterization of the charges. This effectively prolonged the trial of Katanga by more than a year, ending with his conviction under the new legal characterization, whereas he would have been acquitted along with Chui had it not happened.

This is obviously the biggest difficulty with this judgment, but it features other considerations which merit some attention. I offered my first impressions of the judgment after the summary was read out in open court. In the next few days, I will suggest some more detailed considerations, based on plowing through the actual judgment and dissent. A few caveats. First, readers should note that the judgment itself is in French, so I do no reproduce the relevant parts that I discuss, nor did I have time to translate. I try, as much as possible, to indicate paragraph or page numbers so that you can check for yourselves. Second, what follows is obviously a mere selection of issues discussed in the judgment and there is no claim to exhaustivity.

So, let’s start. In this first post, I want to discuss the issue of the quality of the Prosecutor’s investigation, the rules of interpretation and the definition of the crimes. Continue reading

The Return of the Sequel to the Specific Direction Saga: Prosecutor files for reconsideration of Perisic Appeals Judgment

The year started with a bang a couple of weeks ago when a differently composed Appeals Chamber bench in Sainovic claimed that the Appeals Chamber in Perisic had erred in considering that specific direction was part of the elements of aiding and abetting liability. There is no need in coming back at this point on the substance of the discussion which has been debated to death in the past year.

In any case, in light of Sainovic, the ICTY OTP has now filed for reconsideration in the Perisic case itself. As noted by Kevin Jon Heller, there is absolutely no legal basis for such a motion, as it would really be a stretch to consider that the Sainovic judgment would constitute a “new fact” allowing for reconsideration. Sainovic is only evidence that Judges at the ICTY have decided to fight their personal battles in their judgments, which is most certainly something to be concerned about, but not a reason for reconsideration.

The motion is however perfect for teaching purposes, because it summarizes in a few lines the confusion about the object and purpose of ICL and how it has been used to trump defense rights.

Using a decision relating to the possibility of reconsideration in the exceptional case of a “miscarriage of justice”, the Prosecutor reasons in the following way:

Reconsideration is the only option for the Appeals Chamber to rectify the manifest miscarriage of justice to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and their families resulting from the erroneous Perisic decision.

This reasoning is disturbing in a number of ways. Not only does it reflect the general victim-centred reasoning of some people in ICL, as pointed out by Kevin, it illustrates more specifically how there is an increased confusion between the actual rights of the actual parties to the proceedings and the metaphorical “rights” of those having an interest in the trial. The concept of miscarriage of justice is not a moral metaphysical concept meant to cater to the disappointment of court observers, be they the direct victims of crimes. It is a specific concept meant to protect the rights of the accused against possible abuses in the judicial process.

It is therefore particularly disgraceful that one of the organs of the Court would try and use a concept created to protect the accused, against the accused. This is of course not a new practice of international tribunals. Examples abound of decisions where a right of the defense was opposed to the accused to defeat the exercise of another right ( for eg, right against self-incrimination raised against Norman at the SCSL when he himself wanted to testify before the TRC, and more generally the right to be tried without undue delay sometimes raised by judges when defendants ask for more time to prepare for their defense).

This is an unfortunate new episode in this Perisic saga (and its Harhoff spinoff). With most movies, the sequels tend to drop in quality compared to the first one in the series, and this is no different. Some might say that recent decisions, such as in Seselj, where the case is plowing on despite the disqualification of Harhoff, or motions such as the one discussed here, tarnish the legacy of the ICTY, I don’t share this somewhat implicit optimistic account of the legacy in the first place.

Unfortunately, recent media-gathering examples such Perisic, Seselj or Taylor (or Kenya at the ICC), are merely symptomatic of the normal workings of international tribunals. A more accurate way to put it would be that the courts are now just polishing the coffin that is the legacy of international justice, at least in relation to the protection of the rights of the defense.

More on this most certainly in the Katanga Judgment to be released on Friday

Why the Vienna Convention should not be applied to the ICC Rome Statute: a plea for respecting the principle of legality

Dapo Akande and Kevin John Heller are engaging in a really interesting discussion on how the application of the Vienna Convention on the Law of Treaties (VCLT) might allow us to interpret the Rome Statute to include the use of chemical weapons as a discrete war crime. Dapo argues that it can and Kevin, while agreeing with Dapo, regrets that this result would be attained at the expense of states’ consent and explicit desire to exclude such a provision in the statute.
What I find interesting in those posts is that they both take for granted that the VCLT in fact can be applied to the Rome Statute. Of course, any first year international law student will tell me that this is obvious and unquestionable: the Rome Statute is a treaty and therefore, the VCLT applies. However, I’m not entirely sure I agree.
I’ve always found the question of the applicable rules of interpretation to international criminal law statutes to be an underdeveloped aspect of the literature on the work of the tribunals. The applicability to the statutes of the VCLT, or at least the rules contained in it, has rarely really been questioned. The case law of the ad hoc tribunals is full of judgments and decisions, which either explicitly or implicitly refer to those rules, despite the fact that as UNSC Resolutions, the Statutes of these institutions should not necessarily be looked through that lens. In a recent decision, the Appeals Chamber of the Special Tribunal for Lebanon even went as far as to claim that the VCLT applies to “any internationally binding instrument, whatever its normative source”. As for the ICC, Judges have, most would say logically, applied the VCLT to the Rome Statute as a treaty.
This situation is understandable. As international lawyers, the VCLT is our default go-to document to look for rules of interpretation of international documents. But I believe this fundamentally ignores the specific nature of international criminal law and the central role of the principle of legality. This is why, in an upcoming book chapter, the first draft of which can be found here, I suggest my own, somewhat unorthodox (according to everyone I’ve spoken to about them) views on the applicability of the VCLT to the Rome Statute in the first place. In a nutshell, what I argue in my Chapter is that the requirements of the principle of legality in ICL would warrant against the application of the broad and ultimately discretionary rules of interpretation of the VCLT.
For one, they have been thoroughly been misused in the past, with unacceptable references to the “object and purpose” approach to essentially introduce morality as a way to circumvent strict legality. Indeed, you often see broad references to the “end of impunity” or various variations on the protection of human dignity as part of the “object and purpose” of the Rome Statute to justify expansive (some say progressive) interpretations of the applicable law. Also, I think that a rule such as that of subsequent practice of States (article 31(3)(b), VCLT) would often not be compatible with the non-retroactivity of criminal law. 
Second of all, and more technically, I put forward 2 series of arguments against the application of the VCLT to the Rome Statute.
The first one relates to the clear existence in Statute (compared to other international criminal tribunals so far) of lex specialis rules of interpretation, in terms of in dubio pro reo, strict intepretation and the prohibition of analogy (article 22). This therefore would exclude the lex generalis rules of the Vienna Convention. 
The second argument is a bit different. I think that the “nature” of a document depends not on the document itself, in an absolute and abstract way, but on the entity applying it and the entities it is applied to. In other words, the Rome Statute might sometimes be considered as a treaty and sometimes not. When it is applied by the judges of the ICC, it is an internal application of the Statute and it is therefore not applied qua treaty, but rather as internal rules of the organization. On the other hand, if two States were to engage in a dispute on the interpretation of the Rome Statute (for example in relation to duties to cooperation or duties to surrender accused), then the Rome Statute would apply qua treaty between them, and the VCLT would arguably be a valid point of reference.
This second approach, of the possible dual nature of an international document, is not unheard of. For example, the question arose in the the Kosovo Advisory Opinion, which I think completely fumbled the question of whether the constitutional framework was relevant international law for the dispute. The ICJ said that it was, based on the fact that it was formally an UNMIK Regulation, adopted pursuant to powers granted by the UNSC. I must admit I initially agreedwith the ICJ, but on further reflection I do believe that because in that context it was meant to be an internal legal document not aiming at having international legal effect, it was not relevant international law at all (see my LJIL article for further discussion on this point).
To clarify, I don’t suggest that my proposal removes by magic any difficulty in interpreting the Rome Statute. There will always be cases of ambiguity, real of perceived, that will probably require a balance of interests between different possible interpretations. I just want to reintroduce one interest that is somewhat often forgotten in these debates: that of the accused and more generally, the application of the principle of legality. These interests should come first in the discussion, not last as is often the case. For example, in the above mentioned STL Appeals Chamber decision, there is a lengthy discussion of all the different rules of interpretation contained in the VCLT, and only at the very end is it mentioned that, if nothing else works to solve an ambiguity, then the interpretation most favourable to the accused should be adopted. This, for me, is the wrong logic. The first rules to go to are the ones which favor the defendant.
Applied to Kevin and Dapo’s conversation, this doesn’t mean that I would necessarily disagree with them, just that I would approach things differently.
For me, Dapo’s excellent interpretation needs to pass an additional test, that of being foreseeable by the defendant. I’m also not sure it is not in violation of the prohibition of expansion by analogy.
As for Kevin’s points about the importance of State consent, I think that it is not always a good starting point. Indeed, I don’t care what States wanted. If they drafted an ambiguous provision, the interpretation most favorable to the accused must be adopted, even if the travaux préparatoires indicate that the other interpretation was favored. Drafters should do their homework. If they plan to send someone to jail for a considerable period of time based on the Statute, the least they can do is make this crystal clear in the wording of the provisions. On the other hand, in the specific case of chemical weapons, if there is wide public knowledge of States wanting to exclude from the Statute, then it can be relevant in going to show that prosecution specifically for such conduct was not foreseeable.
All in all, given the regular violations of the principle of legality in international criminal case law, my proposal therefore aims, beyond a change in the applicable rules of interpretation, at a change in the state of mind of those applying those rules, be they judges or academics.