[The English] have a horror of abstract thought, they feel no need for any philosophy or systematic ‘world-view’. Nor is this because they are ‘practical’, as they are so fond of claiming for themselves. One has only to look at their methods of town planning and water supply, their obstinate clinging to everything that is out of date and a nuisance, a spelling system that defies analysis, and a system of weights and measures that is intelligible only to the compilers of arithmetic books, to see how little they care about mere efficiency. But they have a certain power of acting without taking thought.
George Orwell, The Lion and the Unicorn (1940)Deutsch sein heißt, eine Sache um ihrer selbst willen zu tun.Footnote 1
Richard WagnerMon expérience est que souvent le droit comparé est utilisé pour confirmer une solution que l'on avait déjà trouvée.Footnote 2
Antonio Cassese, in Mireille Delmas-Marty and Antonio Cassese (eds.),Crimes Internationaux et Juridictions Internationales (2002), 1401. Introduction
International criminal justice is, as far as legal phenomena go, a relatively recent additionFootnote 3 to the mechanisms of reaction to crime – which is not a thing that can be said for the crimes it deals with. The idea of justice in the criminal context developed differently in different cultures over long periods. What may appear to be a non-negotiable part of one system can be a non-issue in another. Fostering understanding between cultures is first and foremost a question of language in a deeper, richer sense. Unless the linguistic and cultural influence on scientific thought and practice is given the necessary attention as a primary determinant of scientific or academic dialogue, a gap will remain between different legal cultures, despite the best intentions of the partners to any comparative dialogue. Nowhere is this gap of mutual understanding greater than between the so-called common-law and continental (or civil)-law systems, and to differing degrees at that. The author is a German judge-turned-academic teaching English, comparative, and international criminal law at a university in the United Kingdom; this paper is a first step in an investigation and it is based on his experiences with the particular dialogue between the English variety of common law and the German system, but, of course, the topic needs to be studied on a much wider range, including other major common-law jurisdictions such as the United States, for example.
German law is one of the continental jurisdictions least understood by English lawyers, who mostly look to France when comparing continental systems. More often than not, that comparison will focus on procedural issues rather than on substantive law principles. Given that the process of harmonization of laws within the European Union has also taken hold of the criminal law and mutual understanding is becoming ever more important if we are to proceed on the path to mutual recognition as the new guiding principle of co-operation after the Treaty of Lisbon, some might say that it is time that the common-law community was provided with adequate tools enabling them to comprehend the continental criminal law beyond mere policy issues and generalist compilations, and, more to the point, to become acquainted with their underlying epistemology. Mirjan Damaska has described the problem famously as follows:
[L]aymen dislike being bound by technical criteria, not only because they do not always understand them, but also because such criteria may dictate results at odds with their ideas about the appropriate solution of the case – ideas likely to be generated by feelings about substantive justice. If external pressures nevertheless impose a degree of legalism on coordinate structures, the kinship of these structures with pragmatic legalism is far closer than their kinship with logical legalism. This is because the legalist of the pragmatic persuasion and the layman attached to substantive justice demand close attention to concrete particulars. To both, le bon Dieu est dans le détail. On the other hand, the regulation that appeals to logical legalists is alien to laymen. It displays insensitivity to the singularity of human drama, and its capacity to assure principled decision making leaves laymen unimpressed. They are likely to prefer warm confusion to cool consistency.Footnote 4
German criminal procedural law, for example, takes rather different approaches to many of the problems of procedural law from those of the common-law family of countries like the United Kingdom, the United States, Canada, New Zealand, Australia, etc. It also differs markedly from the system that is most often used in anglophone writing as a civil-law comparison: the French law. German criminal law is a code-based and so-called ‘inquisitorial’ – better: ‘judge-led’ – procedural model. The influence of academic writing on its development has been far greater than in the common law, as George Fletcher correctly observed when analysing the task of constructing a terminology in English (or other languages) that adequately describes and represents the generally accepted dominant German model of the tripartite structureFootnote 5 of criminal offences: ‘This task has not been easy to do in English, largely because academics lack the kind of authority that they enjoy in many cultures of Western Europe and the Far East.’Footnote 6
To stay with this point – the offence definition and the related level of conceptual difference – the English dualist concept, for example, can be summarized in the notorious equation memorized by every first-year law student: ‘Offence = (actus reus + mens rea) – defences.’ This naturally entails the question of where one subtracts the defences from and what that means for the offender's liability, for example, in the context of secondary participation where one party may have a mens rea defence but not her accomplice, etc. Is insanity really a question of mens rea or does it belong to a different category of a personal, subjective, mental-state-related context that would merit a separate classification? In the ensuing sections, these issues shall first be clarified mainly in the example of one major Continental jurisdiction, that of Germany, followed by a look at the increased complexity of the topic in the arena of international criminal law. This can, by its very nature, only be a mere snapshot of the wide panoply of legal systems on the Continent and elsewhere, but it shall suffice to highlight some salient points in the debate about the common and civil law, which the international criminal justice community in particular may have overlooked for too long and which may be in need of addressing at root level in future research.
It bears mentioning as an aside in this context that is primarily focused on the Anglo-German dialogue that the traditional focus on the dichotomy between common and civil law does not even begin to reach the level of systemic difference that both systems exhibit vis-à-vis Islamic legal thought. Islamic Shari'ah is a separate category that does not fit easily into the division between common and civil law. It is often neglected in comparative law research, which is questionable, to say the least, because it is seen as a divine or divinely inspired source of law, demanding obedience in all spheres of life by more than one and a half billion people on this planet. This is notwithstanding the fact that most Islamic states do not apply pure Shari'ah in the criminal-law field, but rely on codes that may be based to differing degrees on previous colonial principles and indigenous attitudes, which may be an indicator that there is actually no state practice within the meaning of Article 38 of the Statute of the International Court of Justice (on which, more below). The Shari'ah's way of arguing and the sources of reasoning as accepted by legal scholars and the leading (clerical) jurists especially in the criminal law are somewhat reminiscent of scholastic deductions combined with the doctrine of precedent, but lacking what Wael B. Hallaq calls a ‘single umbrella category equal in scope and taxonomical groupings to the modern notion of criminal or penal law’.Footnote 7 The absence in traditional Shari'ah of any written criminal law apart from the few legally relevant verses contained in the Qur'an and the Prophet's Practice likens it more to the common-law tradition of inductive reasoning. In more recent times,Footnote 8 many of the Islamic countries would also at some point or another have been under the influence of colonial powers and modern state-sponsoredFootnote 9 law often proclaims the Shari'ah as the supreme law of the land, although not necessarily to its full extent in the realm of criminal law.Footnote 10 However, traditional Shari'ah will inevitably have an influence on how Islamic governments adapt their criminal justice systems because traditional Islam strictly speaking does not allow a government to neglect the divine command or the practice of the Prophet in any area of public life.Footnote 11
2. Some examples
The differences in legal culture and history can be drastic. A few examples may be mentioned to clarify this point. The German system, for example, has gone through a development of serious human-rights abuses from the times of the witch trials to the Nazi era and the political trials during the GDR regime – an experience that has left deep scars on the German communal conscience and has strongly influenced the way most German lawyers think about procedural safeguards for defendants and about civil liberties in general.Footnote 12 The United Kingdom, for example, also has had dark periods, but not nearly to a comparably severe degree in this respect. Has this difference had an impact on how the average Englishman today perceives the justice system of England and Wales? Does it show in the way the English, laypersons and professionals alike, talk about their legal institutions? Is the mode of talking an expression of a deeper cultural affinity for certain problem-solving models within the ambit of criminal justice? Maybe the relative ease with which the UK law uses its ubiquitous CCTV surveillance and legal instruments such as reverse burdens of proof to the detriment of the defendant, and strict-liability offences, as opposed to the general and principled condemnation any such approach would receive in Germany, has to do with that human-rights history. This may appear at first blush to be counterintuitive, because Jeremy Paxman, for example, has used the slogan ‘I know my rights’ as one of the catchphrases most tellingly defining Englishness,Footnote 13 yet the emphasis put on different interests may not be shared across Europe: for a German, it is almost inconceivable how one can acquiesce to video cameras in almost every public spaceFootnote 14 but become incensed at the idea of having to carry an ID card – something the Germans have done for many years without the face of Big Brother looming on the horizon. The Germans have traditionally had a reputation as being an efficient, albeit authority-minded, mechanical, methodical, and subservient, people, more interested in a smooth and efficient running of the different little wheels and cogs in the great machine that is the body politic than in ideas of natural justice and individual rights. That this reputation runs afoul of the impressive history of moral and legal philosophy in Germany, tied to names such as Hegel, Kant, or Feuerbach, and its influence on legal systems all over the world is another matter.
A second example is that Germany has not used jurors since 1924. There are lay judges in some courts but no laymen-only courts such as the English magistrates’ courts; however, depending on the case and the numbers required for a majority, lay judges can outvote the professional judges on issues of fact and law, unlike in the Crown Court at appellate level in England.Footnote 15 The trial procedure is not party-driven, but judge-led, entailing a drastic difference in the roles of prosecution, defence, and judge. The position of the defendant herself in practice is fundamentally different in that she is not merely a quasi-piece of evidence, but a fully equal party: she may address the court, make motions, and question witnesses directly, even if represented by counsel; she does not give evidence when making a statement, is not required to incriminate herself in any way, and thus, consequently, cannot perjure herself (the so-called (in-)famous ‘right to lie’). The prosecution can directly appeal acquittals as well as too-lenient and too-harsh sentences. There is no rule against the introduction of hearsay evidence, and so on.
Cases of mistake of fact, as yet another example, are (controversially) called ‘failure-of-proof’ defences in English law: the expression is based on the prosecution's failure to prove an essential element of an offence. It becomes immediately evident that this is a procedure-driven terminology referring to the trial situation. German doctrine also treats these scenarios as the absence of a necessary element of an offence, but describes them in material, substantive and dogmatic terms: a Tatbestandsirrtum is not a defence based on the absence of prosecutorial proof at trial; it is merely the lack of an essential element related to the person and, more specifically, the mental state of the offender as such. I personally had a similar experience at an international symposium when I was explaining an issue related to the lack of an offence element and an English colleague of mine in the discussion said that that would be an issue ‘on which the prosecution would not have to lead any evidence’. The conceptual distinction between an element of an offence and a defence was succinctly captured at the international level by the Čelebići Appeals Judgement of 2001, when the judges wrote – clearly employing common-law procedural epistemology – about the question of whether a defence of diminished responsibility existed under the ICTY's law:
As stated earlier, both Landžo and the Trial Chamber appear to have assumed the existence of such a defence in international law by reason of Rule 67(A)(ii).969. That sub-Rule is in the following terms:
As early as reasonably practicable and in any event prior to the commencement of the trial:
[. . .] the defence shall notify the Prosecutor of its intent to offer:
(a) the defence of alibi; [. . .];
(b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.
The Rule is not happily phrased.
It is a common misuse of the word to describe an alibi as a ‘defence’. If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged. That is not a defence in its true sense at all. By raising that issue, the defendant does no more than require the Prosecution to eliminate the reasonable possibility that the alibi is true.
On the other hand, if the defendant raises the issue of lack of mental capacity, he is challenging the presumption of sanity by a plea of insanity. That is a defence in the true sense, in that the defendant bears the onus of establishing it – that, more probably than not, at the time of the offence he was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of his act or, if he did know it, that he did not know that what he was doing was wrong.Footnote 16
While the result is the same in substanceFootnote 17 – that is, absence of mens rea or another offence element or the presence of a defence – the way of describing the phenomenon is highly significant of the different linguistic and cultural approaches to thinking about and practising law. George Fletcher is right when he states:
The particular attachment of Anglo-American legal culture to the concept of ‘fairness’ derives from the emphasis in the common law on procedural regularity as a value in itself, a value worth respecting apart from justice in the individual case. Our notions of fairness and fair play draw heavily on the analogies from competitive sports and games, which pervade idiomatic English. . . . Relying on a sporting ethics to design the contours of criminal trials would strike lawyers from other parts of the world as a distortion of justiceFootnote [18]. . . .
This characteristicFootnote [19] of common law thinking derives in part from the jury system. The basic rule guiding the competence of the jury is that lay people should decide those questions on which reasonable people might differ. If reasonable jurors would not disagree,Footnote [20] then the judge should direct a verdict. Thus reasonableness becomes the standard for demarcating the realm where the expertise and official power come to an end.Footnote 21
This procedure-based approach relating to the judge-and-jury model in the epistemology of the conversation about criminal justice, and maybe law in general, is also reflected in the terminology of English appellate courts when they have to address errors of law by the trial judge, if the judge sat without a jury or made a decision in which the jury did not play a part. The judge is then often said to have ‘misdirected himself’, as he would otherwise have been held to have ‘misdirected the jury’ in his summing-up, for example.Footnote 22 Similar talk based on the judge-and-jury model can be found in the language of the Appeals Chamber of the ICTY in the Jelisić case (see below). A civil-law court would merely state that the lower court misapplied or erred about the law.
3. Lost in translation? The case of German law
The simple fact of the matter is that there is, for example, no one work on German criminal procedure in English available at this time,Footnote 23 neither for the substantive analysis of the law nor for the linguistic and methodological background. The standard work in the latter area was and still is a short monograph in German by Gustav Radbruch from 1947,Footnote 24Der Geist des englischen Rechts. The more recent and thus up-to-date monographic academic-level literature available in English on the German procedural system at present exists mainly of more or less brief overview sections in three comparative collectionsFootnote 25 and a comparative case study.Footnote 26 The German Federal Ministry of Justice has published the fifth edition (2009) of a 67-page statistical overview by Jörg-Martin Jehle on its website.Footnote 27 The Canadian law website of LareauFootnote 28 has links to German criminal-law works, which also shows the fragmented and often dated nature of the literature available in foreign languages on the German system. There are a limited number of articles and essays in UK, US, and other international journals that contain comparative aspects related to the German criminal law; as can be easily deduced from their relative paucity and the page numbers and the nature of the above-mentioned works, an in-depth, analytically coherent, and monolithic exposition of the German system is conspicuously missing, both for the legal as well as for the linguistic–cultural part.
What is needed is an analytical, coherent, and systematic presentation of the academic methodology and the judicial and legislative policy approaches to the criminal process in German legal culture, as well as their linguistic and cultural influence on academic thought and practice to familiarize the common lawyers with the academic and judicial methodology and overall policy of German legal thinking in the field of criminal procedural law, as well as with the cultural emphasis on and the shape of procedural general principles and protections, and extract patterns of talking about law as a cultural phenomenon.Footnote 29 German criminal law is heavily doctrine-driven, much more so than is the case under the approach taken, for example, by English criminal law, or, for that matter, the criminal law of many common-law systems. While it is true that parliamentary law-making has gained a lot of ground, especially in recent decades, common-law systems have traditionally relied on judge-based development on a case-by-case basis. Because their law had to be tailored for use by laypeople as fact-finders in the criminal process, be they jurors or lay magistrates, a high emphasis was put on remaining as close as possible to what judges like to call ‘common sense’, making the approach akin to that described by Damaska as that of a pragmatic legalist or layman. The following quote from a well-known English case on the effects of voluntary intoxication on the mens rea of the accused in so-called basic intent offences, DPP v. Majewski, is a good example of this attitude:
A number of distinguished academic writers support this contention on the ground of logic. As I understand it, the argument runs like this. Intention, whether special or basic (or whatever fancy name you choose to give it), is still intention. If voluntary intoxication by drink or drugs can, as it admittedly can, negative the special or specific intention necessary for the commission of crimes such as murder and theft, how can you justify in strict logic the view that it cannot negative a basic intention, e g the intention to commit offences such as assault and unlawful wounding? The answer is that in strict logic this view cannot be justified. But this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic. There is no case in the 19th century when the courts were relaxing the harshness of the law in relation to the effect of drunkenness on criminal liability in which the courts ever went so far as to suggest that drunkenness, short of drunkenness producing insanity, could ever exculpate a man from any offence other than one which required some special or specific intent to be proved.Footnote 30
A similar argument with a view to the importance of procedural rules was made at the international level by the Australian judge David Hunt, who had previously been the Chief Judge at Common Law at the Supreme Court of New South Wales, at the International Criminal Tribunal for the Former Yugoslavia in the case against Milan Milutinović Footnote 31 and others, when he said in relation to the prosecution's contention that he no longer had jurisdiction to decide on the request of the accused: ‘The Rules of Procedure and Evidence were intended to be the servants and not the masters of the Tribunal's procedures.’Footnote 32
In contrast, although German law has widely subscribed to the use of historical and teleological interpretation, which includes the application of public-policy arguments like the one used by the court in the Majewski case, such a barefaced rejection of the appeal of logic would be an alien thought to any German judge, let alone academic. Despite the fact that the development of German criminal law, too, has increasingly come under the influence of judicial reasoning about legal principles, there is still a discernible impact of and reliance on academic writing, mainly based on the pervasive German legal commentary culture. German academics and practitioners have over the centuries produced large and intricate commentaries on the different codified laws and handbooks on practice and procedure. Only the latter can be equated with common-law publications such as Archbold or Stone's Justice Manual in England. Commentaries, some of them with several volumes, on specific codes written by respected academics, seasoned judges, and practitioners through many editions do not only digest the development of literature and jurisprudence, but they also analyse them and criticize the arguments put forward by the writers and judges and, if they happen to disagree with them, set out their own view of how things should be done – something hardly ever found, for example, in the leading English manual on criminal procedure, Archbold. It is no rarity, either, to find a court changing its long-standing jurisprudence on a certain topic because the logic behind the arguments of renowned academic writers made in such commentaries or in journal articles convinces the judges that their previous views were wrong.
The fact that German law is to a large extent based on the more or less strict application of logic and well-developed methods of interpretation is also a function of the German academics’ (and actually also the judges’) attitude to the judicial process: they do not see academia as the mere handmaiden of the judges, but as their guiding light. To their minds, judicial practice should, in principle, follow abstract reasoning rather than adhere to a casuistic approach that favours justice in the individual case over systemic coherence to the major and overarching legal principles across the board.Footnote 33 The German approach, to use a simplistic description, is thus deductive in nature, as opposed to the more inductive one of the common law,Footnote 34 and it runs counter to the inclination of laymen, who may be ‘likely to prefer warm confusion to cool consistency’.Footnote 35 The function and view of the trial and its effect on legal reasoning in the sphere of substantive law are markedly different. This begins with the nature and structure of the German criminal process. German criminal proceedings are, by their nature, not a contest between parties, but an objective, judge-led inquiry into the material truth of the facts underlying a criminal charge. Equality of arms is not a principle that would apply to a similar extent and in the same nature as it does in adversarial systems. From the German point of view, the prosecution, on the one hand, has no individual rights of fair trial; it has powers and duties, with the consequence that the prosecution cannot argue a violation of the right to equality of arms because the system is not adversarial, but the court itself is under a duty to find the truth.Footnote 36 The defence, on the other hand, has no duties, only rights, yet it may suffer if it does not exercise them properly, as is the case under the well-known common-law ‘save-it-or-waive-it’ principle relating to grounds of appeal, which, however, in an intriguing converse development of transplantation of individual legal cultural facets, appears to find more and more favour with German courts, too, especially in connection with section 238 II StPO.Footnote 37 The defence is seen as being, by definition, inferior in power and facilities to the prosecution, so, from a German point of view, equality of arms is a principle that protects the defence, but not the prosecution. Any idea of changing the law, for example, by introducing probative burdens of proof on the defence or reading down the requirements the prosecution has to prove (see, e.g., the recent Sexual Offences Act 2003 with regard to requiring proof of absence of reasonable belief in consent as opposed to the honest belief standard (probably) still applicable to all other offences under DPP v. Morgan Footnote 38) in order to make it easier for the prosecution to bring its case, would have no equivalent in German doctrine, and indeed would be seen as constitutionally questionable. Difficulties of the prosecution to prove its case cannot lead to an abridgment of the defence's position by interpreting down the threshold of existing offence requirements, as they can in England.
These examples show that some of the fundamental cultural parameters defining the criminal process as a whole differ drastically between the German and the English systems, the latter being, after all, the parent system of all common-law countries. As already mentioned above, these cultural differences express themselves in the way laypeople and professionals talk about the law, and the language in turn influences the theoretical approaches to academic thinking about and practising law – something that was picked up early in the twentieth century by Gustav Radbruch.
4. Radbruch resurrected
Gustav Radbruch (1878–1949),Footnote 39 the eminent German jurist and legal philosopher, had the following to say in 1947 about the English approach to law and its underlying methodology in Der Geist des englischen Rechts:Footnote 40
It is not in the nature of the English mind to violate the facts by reason, it seeks reason in things, to it reason is in the ‘rerum natura’. This English fact-mindedness does not cherish founding decisions on the expectation of things to come, it allows them to materialise first in order to decide once they have arrived. It trusts neither the imagination nor the calculation of future events, the real situation is always different anyway; it rather waits until the situation brings the decision, forces it. It feels no obligation towards the elegance of the clear contour in order to avoid an unsightly zigzag course . . . its strength is being able to correct and adapt itself to the new situation.Footnote 41
Maitland, the great English legal historian, speaks in the same sense of ‘stumbling forward in our empirical fashion, blundering into wisdom.Footnote [42]
In the same fashion, Macaulay says of the English mode of legislation ‘neglect of the symmetrical and adept order; never abolition of an anomaly merely because of its having been an anomaly; no innovation unless a grievance was immediately felt, and then innovation only insofar as necessary for the removal of that grievance.Footnote [43]
This is why most English lawyers are against codifications, against the consolidation of entire areas of law in comprehensive codes, and for a method of finding law that creates new law only based on an individual case and then only for that case and similar ones.Footnote 44
Radbruch also points out that even where such codifications happen, they quickly become overgrown with a layer of case law like ‘a thatched roof by moss’ that quickly pushes the direct applicability of the letter of the law aside.Footnote 45 As far as the linguistic approach of English law was concerned, Radbruch observed:
Even the English terminology with respect to the law is original and singular. While in the main continental languages the word for ‘Law’ comes from that which is straight and on the right side, from the right and the just (Recht, droit, diritto), in English it is deduced from the [positive legal order]: ‘the law’.Footnote 46
Radbruch's writing about the spirit of English law provides a starting point but is, of course, obsolete in some of the observational details because some of the areas referred to have undergone reform since 1947. However, his main thesis seems to have lost nothing of its potency. André Klip has opined:
English would be the obvious choice for a European legal language. This is problematic insofar as the continental (and thus non-English) criminal law holds a wider sway in Europe as a whole and has more commonalities than the anglophone legal systems . . .. Yet the experiences with English legal terminology in international criminal courts have shown that given balanced substantive rules, a new and sui generis system can emerge and find its own balance. Therefore it should be feasible for English as a common European legal language to shed its national provenance.Footnote 47
The precondition of ‘balanced substantive rules’ is the real sticking point, as what is balanced is often determined not by the letter of a law, but by its interpretation and thus by the methodology applied by the legal scientists, which, in turn, uses linguistic and epistemological tools. What Radbruch said all those years ago is thus likely to remain a pertinent comment.
5. A few heretical ideas
As was indicated above, this contribution is a mere introduction to the research that may have to be undertaken to get to the root of the misunderstandings that often plague the joint practice of civil and common lawyers. The well-known dichotomies ‘adversarial–inquisitorial/judge-led’, ‘inductive–deductive’ may thus be in need of being broken down further. The following, perhaps provocative, hypotheses, related specifically to the German/English approach in the criminal-law context but to differing degrees applicable to many Continental and common-law jurisdictions, are awaiting verification or falsification:
• The systematic presentation of a foreign legal system in the technical terminology of the target language of another country invariably involves a linguistic and cultural-comparative challenge.
• From a German point of view, English legal culture still has a long way to go before a genuine stage of general coherent codification is reached, if that is desired at all,Footnote 48 despite the trend of the last 20–30 years of increasing the legislation density in many areas. An attempt in the 1980s to codify the entire criminal law failed because of the prevalent traditional attitude of many of the most influential English lawyers and government officials. The Law Commission has recently been revivifying the attempt at codification, but merely in individual bills and not as an overall Code. The same can be said for the procedural law.
• Legal methodology as understood in Germany is identical in the work of the judges and of academics, as judges are more thoroughly academically trained in academic legal science than most of their English counterparts. There is thus no dichotomy between the two in Germany and the amount and depth of academic treatment of a case by the courts, especially the highest courts, is thus not substantially different from that applied by academics.
• Thus, German academic and judicial methods are not in any meaningful way distinct; there is no friction in communication between academia and practice in Germany. Conversely, ‘legal science’ – the clumsy translation of Rechtswissenschaft – is frowned upon and belittled in modern English legal academia as a mechanical and practice-oriented, applied-research variety of legal discourse, presently at odds with the socio-legal and policy-oriented research focus of the majority of English legal academia, as well as contrary to the piecemeal approach favoured by the judiciary.
• A change in attitude may be required in England as one of the paragons of the common-law world, and it can only come about by a reassessment of the value of academic methodology and its desired influence on proactive rather than reactive law-making. Comparative research in the international justice context requires knowledge and understanding primarily of the law as applied by the practitioners, and only secondarily of the policies and socio-legal context behind it. In the Anglo-German dialogue, for example, this translates into an increased dedication of resources by English academics and lawyers to understanding the German system, not the other way around because that direction on the road of mutual understanding has been travelled by many German academics for many years, as exemplified by such institutions as the Max-Planck-Institute for Foreign and International Criminal Law in Freiburg – something that has no equivalent in England. There are voices in England that call for a more co-ordinated approach, and the German model may be a useful catalyst for that process.
6. The added problem of sources of international law
So far, we have been moving mainly in the area of bilateral comparative research. The problem of mere comparative differences becomes more complex in the multilateral comparison field underlying international criminal justice. This has a lot to do with Article 38 of the Statute of the International Court of Justice (ICJ) that deals with what are the sources of international law impacting on that court. That article reads in its relevant parts:
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;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
It is understood that these principles apply to the various ad hoc tribunals as well, and in a restricted manner to the ICC, namely if a matter is not regulated by the Statute, the Rules of Procedure and Evidence (RPE), or Regulations. And, much as with the ad hocs, the lacunae exist in vital areas of the general principles of substantive and procedural law. As I have tried to point out in previous research,Footnote 49 the linguistic and epistemological cultural debate between common and civil law is now joined by a third discussant – one that is their progeny to some extent under Article 38(1)(c) but which by now has become an independent adult offspring: public international law. Public international law, with its extensive reliance, in the sphere of criminal law, on customary law as the result of state practice accompanied by opinio juris, takes a wealth of other factors into account that tend to clash with the fair-trial and minimum-criminalization-driven approaches of both domestic systems: state practice and international comity. Those two are in an innate tension with the former, not least because the influence of politics in their remit is, on average, much more direct than in the more legalistically guided conflict between common and civil law.
Closely linked to this field is that of the personnel who are in charge of applying the law: the judges. It is common knowledge that there are still pockets of serious translation errors in the dialogue of the systems within the tribunals and courts, which leads Rupert Skilbeck to note that ‘Lawyers and judges can learn a great deal from each others’ systems if they do so with an understanding that it may take more than a moment to fully understand the intricacies that make it function’.Footnote 50
ResearchFootnote 51 has also shown that it would appear that not all of those who make it to the bench are actually properly qualified to undertake the task of engaging in the interpretative endeavour of marrying the different approaches into a coherent whole.Footnote 52 This has mainly to do with their previous professional activities, which do not always encompass in-depth familiarity with criminal trials, but also with other issues, such as their command of languages. These systemic problems are overlaid by practical and pragmatic influences, such as, for example, the methodologically problematic result-driven use of comparative methodology alluded to by Antonio Cassese in the quote above or the more logistical obstacles addressed by the German former ICTY judge, Wolfgang Schomburg:
Before continuing, I would like to apologize for restricting my following comments to German law and jurisprudence. Unfortunately, the workload does not allow for in-depth comparative research. However, the quoted regulations and case law may serve as an example for many similar systems. Moreover, up until today nobody has successfully claimed that this approach violates the fundamental rights to be informed and to be heard.Footnote 53
As I have tried to explain elsewhere in connection with Judge Schomburg's candid admission:
[r]esearch related to the ICTY and a further study for the Sierra Leone Special Court tend to show that there are serious problems regarding the foundations for the establishment of international criminal law principles. The courts appear to take a rather nonchalant approach at building a general part of international criminal law. This may to some extent be caused by the selection, abilities and attitude of the judges. The judicial methodology often does not stand up to close scrutiny and one may wonder whether sometimes the judges do not operate in the knowledge that the law is after all what they say it is. The approach does not always comply with the principles which have been developing since the Lotus case. It may violate the principle of legality, even with the rather broad ambit this principle has traditionally found on the international level. That the legal systems of countries in the Islamic world and Asia rarely figure in the Tribunals’ research adds to the concern. If one takes the fact seriously that international customary law is the product of state practice or general principles of law, then one cannot merely rely on linguistically easily accessible sources. If the time pressure born of the completion strategy and staff reductions is an additional exacerbating inhibitor to the judges doing a proper job, then it is to be deplored, even bearing in mind the fact that both Tribunals take up about 15% of the related UN budget.Footnote 54
A good example of what rushed comparative research can do is provided by the Jelisić case. Jelisić had pleaded guilty to a number of counts of crimes against humanity, but not to genocide. The Trial Chamber found him not guilty of genocide upon his motion for an acquittal under Rule 98 bis and decided that matter on the full standard of proof beyond reasonable doubt. On the appeal of the Prosecutor, the Appeals Chamber reversed this decision. The common-law attitude to Rule 98 bis, despite protestations to the contrary in the judgement, impacted on the majority's evaluation on the issue of whether a court with judges as the only fact-finders should apply a reasonable-jury test. The majority view clearly bears the imprint of the common-law judge-and-jury model, where it is not the conviction of the judge that counts, but that of the jurors, with the consequence that a judge can therefore only take a case away from a jury if no reasonable jury could convict on the basis of the evidence. This division does not apply in a judge-only scenarioFootnote 55 and the accused is entitled to be acquitted and released from custody immediately once the judges have come to the conclusion that the evidence of the prosecution, after hearing all the prosecution has to offer, is insufficient to convince them of his guilt. One might legitimately ask the question as to whether the majority would have applied the same reasoning if, in the absence of a partial guilty plea as the one entered by Jelisić, it had been a question of lack of proof that he was present at all at the scene of the crimes. The argument put forward in the partial dissenting opinion by Judge ShahabuddeenFootnote 56 that a full reasonable-doubt standard under Rule 98 bis would mean that a chamber could appear to be biased if it decided that the prosecution case was sufficient fails to understand the difference between the two scenarios. Especially in an adversarial context such as the one applying at the ICTY, the court will typically only have heard or seen the prosecution's evidence, because the defence, apart from the discovery provisions, is under no general obligation to show its hand before the end of the prosecution case. The decision to reject a motion and to continue the trial is thus not based on a contradictory evaluation of all the evidence, but merely on the one-sided presentation by the prosecution, fully taking into account that the court may, of course, change its mind after hearing the defence evidence. The reverse does, however, simply not follow. The only judge who understood this was Judge Pocar in his dissenting opinion, which merits verbatim reproduction:
It should be noted that the conclusion reached by the majority of the Appeals Chamber is certainly suited to a system in which cases are eventually sent to a jury or to a trier of fact other than the judge who evaluates the evidence at that stage. In such a system, if a judge finds that, while he himself cannot be satisfied of the guilt of the accused, a different trier of fact could come to a conclusion of guilt, he cannot stop the proceedings. Should he apply a higher standard of evaluation of the evidence, he would try the facts himself, instead of leaving the task of doing so to the jury.
In this International Tribunal however, there is no jury; the judges are the final arbiters of the evidence. There is no point in leaving open the possibility that another trier of fact could come to a different conclusion if the Trial Chamber itself is convinced of its own assessment of the case. Therefore, if at the close of the prosecution case, the judges themselves are convinced that the evidence is insufficient, then the Chamber must acquit. Such an approach is not only consistent with the text of Rule 98bis(B), which obliges the Chamber to acquit if it finds that the evidence is insufficient to sustain a conviction. It also preserves the fundamental rights of the accused, who is entitled not only to be presumed innocent during the trial, but also not to undergo a trial when his innocence has already been established. Further, the principle of judicial economy is also preserved, in that proceedings are not unnecessarily prolonged: for what is the point in continuing the proceedings if the same judges have already reached the conclusion that they will ultimately adopt at a later stage?Footnote 57
Judge Pocar was able to see behind the tempting simple solution that commended itself on the clearly common-law-based phenotype of the motion for acquittal and proceeded instead to compare the genotypes of the common-law and Continental understandings of the role of the trier of fact and its impact on the position of the defendant. The majority of the Appeals Chamber was either not able or unwilling to do so, despite its protestations to the contrary and despite Judge Shahabuddeen's attempt to use the English case-law references about ‘reasonable trier of fact’ – language used by appellate courts vis-à-vis magistrates sitting without a juryFootnote 58 – to justify the majority approach; it needs stressing that he did not use one single reference to civil-law sources, but only used common-law references from a very limited range of jurisdictions. Compare this to the vastly superior research exercise undergone by the Trial Chamber in Kunarac with regard to the definition of rape.Footnote 59
7. Conclusion: is there more than whinging?
First things first, but not necessarily in that order.
Doctor WhoCommon – and maybe hardened public international – lawyers will be likely to smirk condescendingly or pityingly at best at what they may see as the whining and complaining engaged in above; some will maybe see it as more than a civil lawyer's pitiful attempt at self-catharsis by publication and feel offended, professionally or personally. Be that as it may, as my former colleague at Durham, Paul Wragg, has pithily put it, ‘free speech is not valued if only valued speech is free’.Footnote 60 What must be avoided at the international level is the impression that everyone is already talking to everybody in a fully equal and sophisticated comparative conversation. They may not be doing so. What this paper has tried to do is to impress on the players in the system, academics and practitioners alike, that we may actually have to start talking at a much more basic level to each other than we have thought necessary so far and move beyond the eternal mantras about and the lip-service to the necessity of mutual understanding of different legal concepts to actually comparing their genotypes, and not merely the phenotypes. Only in this manner will we be able to arrive at a successful amalgam of principles and rules that will recognize the special needs of complex affairs such as international trials and move beyond the constant bickering between proponents of different legal systems about the superior qualities of their own. As things stand, one is too often minded to view the operation as being conducted under the legal maxim ‘if it walks like a duck and quacks like a duck . . .’.Footnote 61
