'Statute? What Statute?'--Norm Hierarchy and Judicial Law-Making in International Criminal Law at the Example of the Special Tribunal for Lebanon

Abstract

Since 1945, international criminal justice has been one continuous construction site, an expression of the attitude of international stakeholders and policy makers that favours temporary solutions to contemporary problems. Even with the creation of the ICC that has not really changed. The history of international criminal procedure until the advent of the ICC has substantially been one of cobbling together building blocks from different traditions in order to create a new sui generis system based on extrapolations from Article 38(1) of the Statute of the ICJ and the history of Nuremberg, Tokyo, and the other post-war military tribunals. This eclectic approach has unfortunately been combined with a plethora of regulatory lacunae left to the judges of the tribunals by the international (for want of a better word:) law-making bodies, a criticism that applies to the ICC as well, albeit clearly to a lesser degree. The ‘sui generis’ system seems nonetheless to have had mainly adversarial overtones.1 Even in cases where the statute of a tribunal, such as the Special Tribunal for Lebanon (STL), provides for the adaptation of a civil law model,2 the court’s judges in their rule-making power have, as will be shown below, blindsided the drafters of the Statute and introduced a way for the court to revert to what is in essence an adversarial model. Interesting as the developments in international criminal law may appear if viewed as a ‘legal laboratory’, the fact remains that courts, which deal with putting people away for many years for horrendous crimes, must first of all strive for legal certainty. This paper will argue that the current unprincipled state of affairs is unsatisfactory, and that a move to a system is necessary which protects the defence and keeps the prosecution in check by, among other things, ensuring sanctions for premature assurances3 of trial-readiness—an issue brought into sharp relief at the STL in the controversy about joining the case of a fifth accused at the 11th hour to that of the four first accused when the trial was weeks away, when their case had been developing for far over a year and the identity of the fifth accused had been known all along as well.