Category Archives: STL

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 Dream Factory Strikes Again: the Special Tribunal for Lebanon recognizes International Criminal Corporate Liability

From the Tribunal that brought you an international customary law of terrorism and trials in absentia, a new dream has come true: international criminal corporate liability…

Last week, the Special Tribunal for Lebanon made public a January decision in relation to the initiation of contempt proceedings for the publication, among other things, of alleged witnesses.

There isn’t much point in revisiting here the idea itself that judges are free to include issues of contempt into the rules of procedure and evidence, on the basis of “inherent powers”, even when it is not in the Statute. That ship has apparently sailed since the ICTY, even if it is noteworthy that both the MICT and the ICC include such issues in the statute rather than the rules, which would tend to show that this might not be such an “inherent power” after all. I discuss this issue at more length here.

In fact, while a strong defender of a strict interpretation of the principle of legality, I agree with Judge Baragwanath that it is not an issue in the particular instance because, however shoddy their legal foundations may be, contempt prosecutions have been around for a while now in international criminal proceedings and therefore no defendant can reasonably claim that it was not foreseeable that such proceedings would possibly be initiated for conduct such as the one under consideration here.

I won’t delve either on the discussion on the compatibility of the contempt provisions with freedom of the press. As a argue here, international judges misapply, in my view, the proportionality test that is required by human rights case law, when a balance needs to be struck in the curtailing of some rights. Judge Baragwanath’s reasoning, which is done in the abstract, essentially implies that the application of rule 60bis can NEVER violate the freedom of the press because “the media must comply with the law” (decision, §16). However, the proportionality test should be applied on a case by case basis and there cannot be a blanket seal of approval for any provision.

No, what really deserves attention is this new revolution proposed by the STL: the recognition that legal persons can be the target of contempt proceedings. In other words, the STL has now recognized corporate liability in international criminal law. As Judge Baragwanath acknowledges in the decision, this is a first in contempt proceedings, so it required some explanation on his part. Continue reading

A comment on why the STL Appeals Chamber should not have rendered its decision on applicable law

Over at EJIL Talk!, Marko Milanovic has posted some first comments on the decision issued by the Appeals Chamber of the Special Tribunal for Lebanon on the applicable law. He points out some interesting issues dealt with by the Chamber in relation to the definition of terrorism, or the modes of liability.

I haven’t read the decision yet, but I made a comment on the procedure itself that has sparked an interesting debate in relation to the opportunity of having such a decision in the first place. You can read the debate in the comments section of Marko’s post, but here are my arguments laid down in a more constructed fashion.

The Appeals Chamber was seized by the Pre-Trial Judge for it to render an interlocutory decision on a number of issues relating to the interpretation of the Statute. It should be pointed out from the outset that this procedure is not provided for by the Statute itself. It is provided for by the Rules of Procedure and Evidence, which are drafted by the Judges themselves. According to Rule 68(G):

The Pre-Trial Judge may submit to the Appeals Chamber any  preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to examine and rule on the indictment.

The procedure is laid down in Rule 176bis, which provides that:

(A) The Appeals Chamber shall issue an interlocutory decision on any question raised by the Pre-Trial Judge under Rule 68(G), without prejudging the rights of any accused.
(B) Before rendering its decision, the Appeals Chamber shall hear the Prosecutor and the Head of Defence Office in public session.
(C) The accused has the right to request the reconsideration of the interlocutory decision under paragraph A, pursuant to Rule 140 without the need for leave from the presiding Judge. The request for reconsideration shall be submitted to the Appeals Chamber no later than thirty days after disclosure by the Prosecutor to the Defence of all material and statements referred to in Rule 110(A)(i).

I have a problem with this procedure on several levels which I’ll briefly expose now:

  • Whatever the merits of the procedure itself, from a purely textual point of view, I have a problem with the Judges giving themselves powers that the Statute itself does not give them. For me the whole procedure is ultra vires. In relation to this, I’m surprised that the Judges were given the power to draft the RPE themselves, after the many problems that arose in the ad hoc tribunals in relation to that (ex post facto justification of debatable evidentiary rules, creation of the new offense of contempt, etc.). The ICC rightly chose a different path and I believe it should always be the case Judges not be empowered to draft their own rules. In this sense, I contest the language of the document itself. It cannot be a “decision”, and the AC does not “determine” anything. It is at best a consultative procedure and can in no way be authoritative.
  • Second of all, from an institutional point of view, I find this is a perversion of the system, which leapfrogs the normal judicial process. Normally, an issue is dealt with after it has gone through the several steps of the proceedings, and reaches (or not) the Appeals Chamber based on the arguments of the parties and the reasoning of the other judges. By going straight to the AC at this early stage, it does not leave room for judicial dissent and limits the scope of opposition, even if an accused can indeed appeal some of the findings. In relation to this, the argument of expeditiousness is misleading. If we follow this logic, why bother with a two-tier jurisdiction at all and not ask the AC what it thinks on everything, to avoid too lengthy a trial? Which brings me to another point: the reasoning just assumes that the AC is always right. But that is not the case. Sometimes, I think it is better for a healthy debate to arise between lower-tiered judges for the case-law to settled, like at the ICC, rather than having the AC bully its opinion from the outset. The whole procedure seems to be a be a little too autocratic.
  • From a functional point of view I think it is just not the role of the Appeals Chamber to do what it did. Indeed, I agree that the Statute is a mess and needs clarification, but that does not necessarily mean that the AC should be given the advisory power to deal with that. One commentator on EJIL Talk!, Guillermo Otalora Lozano, referred to other practice by other Courts, both national and international. I quote him in extenso:

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.

This is certainly true, but I fail to see the relevancy in the current case. The Courts in Guillermo’s examples are specifically set up for this purpose. And none of them are seized on the interpretation of the law, but rather on its constitutionality, or more generally its conformity with some other norm. I’m no comparative law expert, but I’m unaware of any system where a lower-court would actually go to a higher chamber to ask it to help it for the interpretation of a law (except the ECJ question préjudicielle, but this is very particular and was specifically set up for the interpretation of EU law). The AC is not a constitutional court, it is a criminal appeals chamber. And that is irrelevant of the fact of it being a civil law or a common law approach.
As for the comparison with other international institutions, it is, in my humble opinion, equally beside the point. They certainly have advisory jurisdiction, but as institutions as a whole towards the outside. The AC is an international court in and of itself. The AC is one chamber within the STL with a specific role in that institution. In any case, in link with my first point, if the drafters wanted the AC to be a consultative body, it should have said so in the Statute. It is not for the judges to self-appoint themselves.

I think a common mistake that is made in relation to international tribunals is to forget about functional specificity. We expect them to do everything and are therefore not surprised anymore when they go beyond their function. It is obvious with the ICC, which is expected to be a human rights court, a reparations court and a forum for victims as well as a criminal court. I think such insistence on trying to stuff so many functions in one institution is a recipe for that institute to fail in all its functions, and, most notably in its core one, that of being a criminal tribunal. But I suppose that is another debate…

Breaking news: Prosecutor of Special Tribunal for Lebanon issues indictments

month later than had been originally expected in December, and according to an announcement on the website of the Special Tribunal for Lebanon:
The Registrar of the Special Tribunal for Lebanon, Herman von Hebel, can confirm that the Prosecutor of the tribunal has submitted an indictment and supporting materials to the Pre-Trial Judge. The documents, which relate to the assassination of Rafiq Hariri and others, were handed to the Registry at 16:35PM (local time) on Monday 17th January 2011. They will now be reviewed by the Pre-Trial Judge, Daniel Fransen. The contents of the indictment remain confidential at this stage.
According to the BBC, and as as reported by Bill Schabas in December, Hezbollah leaders are expected to be named in them. We’ll have to wait for the pre-trial judge to issue arrest warrants and for them to be unsealed to get confirmation. 

Politically, this is an interesting development, given that the STL is at the center of a typical Peace vs. Justice debate, as mentioned by the International Jurist last week, the indictments being seen as divisive and threatening an already fragile political situation in the country. Even Hariri’s son has asked for the Tribunal to back off. Despite this, “The Prosecutor and his team will continue to vigorously pursue his mandate with respect to both continued investigative activity and the prosecution of this case.” (statement here) and the UNSG reiterated his support for the tribunal last week.

Legally, I’ll have other opportunities to blog about this, but this tribunal has always seemed to me like an ill-thought enterprise from the start, with a poorly defined material jurisdiction (national crimes of terrorism, with only a reference to the national criminal code) and “factual” jurisdiction, for lack of a better word (the Hariri assassination and other crimes which are related to it, whatever that means). Also, what should be interesting, and what we should keep in mind is that the Tribunal is the first to allow trials in absentia, in the civil law tradition. So we don’t really need any arrests for trials to go forward. As I’ve had the opportunity of saying before, I am, on balance, in favor of such trials. Let’s have a live example to test the theory. Until I get a chance to share my own thoughts further on the tribunal, the STL has been kind enough to prepare a FAQ document on indictments for the general public.

More at a later stage when the Prosecutor issues a videotaped statement tomorrow.

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”.