A French-based victory for a free press

From yesterday's Chronicle of Higher Education:

A French court has dismissed a criminal-libel charge brought against a journal editor over a negative book review and ordered the plaintiff to pay punitive damages. The editor, Joseph H.H. Weiler, a professor at New York University's School of Law, said he had been awarded €8,000 (about $11,000) as a result of the action brought against him by Karin N. Calvo-Goller, a senior lecturer at the Academic Center of Law & Business, in Israel.

Mr. Weiler is editor in chief of the European Journal of International Law; he also edits a related Web site, Global Law Books.

In 2007 he published on that Web site a short review of a book by Ms. Calvo-Goller. The reviewer was Thomas Weigend, a professor of law at the University of Cologne.

Here's the review that was at issue:


The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents.
By Karin N. Calvo-Goller. Leiden/Boston: Martinus Nijhoff Publishers, 2006. Pp. IX, 561. $155.00.
Reviewed by Professor Thomas Weigend, University of Cologne (Germany).

The International Criminal Court (ICC), product of a rare international consensus and yet subject to serious conflict between its advocates and its powerful adversaries, is moving fast toward trying its first defendants. The Court does not exactly set out into uncharted territory because it can rely on its Statute, on extensive Rules of Procedure and Evidence and on its judge-made Regulations; it can, moreover, take some guidance from the experience of ad hoc criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). And yet the Court’s proceedings are an experiment in international criminal justice, with many fundamental issues unresolved or left to future practice. That experiment is particularly challenging because the Court’s Statute contains elements from the adversarial as well as the “inquisitorial” procedural paradigms.

A book on ICC “Trial Proceedings” is thus timely and welcome. What the reader – and presumably the judges of the Court as well – would hope to receive is a principled analysis of the Court’s general procedural structure as well as suggestions for the possible resolution of some of the “hard questions” that have been left open by the drafters of the legal instruments pertaining to the Court’s operation. Regrettably, Karin Calvo-Goller’s book does not offer either. Instead, in the main part of her book she simply restates the contents of relevant parts of the ICC Statute and the Rules of Procedure and Evidence, augmented by references to the scant English-language literature available at the time of her writing. She meticulously covers all relevant topics: investigation, jurisdiction (including a very brief account of the applicable substantive law), international cooperation, trial procedure, appeals, and enforcement. This exercise in rehashing the existing legal set-up is particularly unproductive since a large part of the volume consists in a reprint of the ICC Statute and its Rules of Procedure and Evidence (the Court’s Regulations are consistently ignored).

The book’s main part on the procedural law of the ICC is preceded by a similarly structured account of the process before the ICTY and ICTR. From time to time, the author draws a connection from the ad hoc tribunals’ jurisprudence on procedural matters to parallel (or non-parallel) provisions of ICC law. But such analytical nuggets are all too rare. Unfortunately, the book is particularly disappointing with respect to procedural theory. Calvo-Goller realizes that the ICC’s procedural arrangements often represent a compromise between Anglo-American and Continental legal traditions. But her conceptual grasp of the “inquisitorial” systems seems insufficient for a critical analysis that might go beneath the surface. An author who maintains that, in an “inquisitorial” system, “the defendant is expected to cooperate with the prosecution” (p. 146 note 635) can hardly be expected to sensibly analyze, e.g., the implications of admitting hearsay evidence, written transcripts and statements of anonymous witnesses on a “mixed” process (cf. pp. 280-286). And a characterization of the criminal process as an “effort to provide a trail [sic] procedure that balances between prosecution of indicted persons, the rights of the victims and the rights of the accused to a fair trial” (p. 217) hardly provides an adequate basis for a sophisticated discourse on the strengths and weaknesses of ICC procedure law.

Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC. What is still missing is a book that might help to resolve these issues.