Since the case of Karin Calvo-Goller v. Joseph Weiler has been heard by the Paris Court (Tribunal de Grande Instance), any points I raise would not be considered as concerning a case sub-judice.
Several academics, including editors of academic journals, have sent letters of indignation/support to the EJIL Free Speech Campaign against Dr Calvo-Goller (my wife). I carefully read the letters, as well as the letters and insults that were sent to Dr Calvo-Goller at the Academic College of Law where she teaches. As a former student of New York University (MCJ - 1974), and since Dr Calvo-Goller has no intention to limit my freedom of expression or anyone else's, I wish to express my personal opinion. I stress that this is my opinion and mine alone.
The insults against Dr Calvo-Goller posted on the web by members of the academic community, not to mention the insulting e-mails to Dr Calvo-Goller's place of work, bring to mind the darkest periods of humanity.
In 2006, Dr Calvo-Goller published a book entitled The Trial Proceedings of the International Criminal Court, ICTY and ICTR Precedents. Pr Weiler asked Pr Weigend to review the book. In 2007, Pr Weiler published Pr Weigend's review on the Global Law Books website. In June 2007, Dr Calvo-Goller read the review and found the review libellous. She requested that Pr Weiler remove the review from the Global Law Books website.
Pr Weiler refused to remove the review and proposed that Dr Karin Calvo-Goller add a comment to Pr Weigend's review. If approved by the editor, the comment would be posted alongside the review.
It could have taken weeks or more before Dr Calvo-Goller's comment would be approved or rejected. Under French law, the time period to file a complaint is three months from the day of publication. Pr Weigend's review was published on 3 April, 2007. She had no other choice left.
Dr Calvo-Goller therefore sent another request to Pr Weiler, asking him to remove the review temporarily, until the matter could be sorted out:
"In order to stop the continuation of the damage caused and that may be caused by the statements in Prof. Weigend's review on my book to my professional reputation, I ask you for the time being, to remove this review from Global Law Book site. I look forward to be informed of Prof. Weigend's position relating to my letter dated June 12, 2007".
Pr Weiler replied: "
DR CALVO-GOLLER HAD A REPUTATION TO PROTECT
Dr Calvo-Goller has published the same number of books in French and in English (not including her recent book which will be published in French), and she has published more articles in French than in English. She wrote only one article in Hebrew. Due to dozens of radio interviews on issues of international law and conferences/lectures in France, she is better known in France than in any English speaking country. Dr Calvo-Goller is also a French national.
I ask the distinguished professors of law who chose to blame Dr Calvo-Goller for her decision: Do you not teach that everyone has full and equal access to the courts of law? It seems that in your view, this right is denied when it comes to a complaint of defamation lodged by a scholar against a professor/editor. Although having practiced in a common law and a civil law system, I have never heard of a provision denying access to court for reasons pertaining to the sphere of the dispute, or the profession or status of the parties.
Anyone who is in or related to the academic sphere, knows that decisions made in this context, are not always based solely on academic reasons, but may involve other motives which in most instances, cannot be known by the person concerned.
To maintain that a dispute involving academic freedom has no place in a court of law, implies that there are areas where defamation law is inapplicable. Further, this contention fails to take the right of the victim into account. To judge by the e-mails received by Dr Calvo-Goller, there are many victims out there, but being that their professional future is in danger, they have concluded that they have no options – and chose to remain silent.
Even after the trial in the Paris Court, and after having followed the various steps of the proceedings closely, I still do not see how the application of libel laws could limit academic freedom or freedom of expression. Libellous statements are not part of, but rather an abuse of these freedoms. In fact, this is not the first trial between same parties.
THE OUT-OF-COURT TRIAL AGAINST DR CALVO-GOLLER
Pr Weiler asked for letters of indignation/support on the EJIL web site and in the EJIL Journal. Indeed, he put "indignation" before "support". In his letter dated 14 June 2007, he stated :
"I think that your reputation would suffer even more if you emerged as someone who tried to suppress a critical book review of the kind published by Globalllawbooks.org. That is my advice to you as a friend".
Pr Weiler saw fit to publish on the EJIL web site the letters that Dr Calvo-Goller sent to him, without her authorisation, letters aimed at preventing "… the effect a bad review might have on one's professional reputation as an academic", as mentioned in Pr Weiler's letter of 14 June 2007.
I assume Pr Weiler is capable of finding e-mail addresses of editors and professors in order to organize his defence, but he instead chose to ask for letters of indignation/support against Dr Calvo-Goller in a public manner, from the entire academic world. He submitted 45 Letters of Support from the Academic Community and 54 letters from Editors of Academic Journals to the Court.
These are some of the results of the out-of-court trial:
"Dr. Calvo-Goller's out-sized and litigious ego", "Dr Calvo-Goller is an enemy of freedom", "an enemy of the academic world", "an enemy of free speech", "it would be difficult to resist the wish that every conceivable professional misfortune comes your way", "Don Quixote", "Idiot and a fascistic jerk", "What a jackass!", "barbaric tactics", "She should be barred from submission of any academic work to any other peer-reviewed academic publication forum"; $155 for Ms. Calvo-Goller's book, it's helpful to know what you're getting", "Karin Calvo-Goller is a horrible author, and nothing she writes is worth anything", "Another reason to hate the French", "How did this lunatic earn a doctorate?", "The lack of bathing, the smelly little basset hounds", "We love watching people implode", "You are thin skinned and hysterical.. find a competent psychiatrist'', "You lack the spirit of true scholarship.. pitiful you", etc…
There is very little "academic" in this exercise. However, there were some exceptions, where the issues were discussed rationally and on the merits, whether for or against Dr Calvo-Goller.
THE BOOK FOR REVIEW AND THE SELECTION OF THE REVIEWER
It is not clear who gave Pr Weiler a copy of Dr Calvo-Goller's book. Global Law Books is not on the publisher's list (Martinus Nijhoff) of recipients of review copies. At the hearing in the Paris Court, Pr Weiler stated that he does not know who gave him Dr Calvo-Goller's book, nor does he know whether it was the publisher or someone else. Pr Weiler also stated that he did not keep the envelope in which the book was received, and that he prefers books sent by publishers.
What is certain is that the publisher did not send Dr Calvo-Goller's book to Pr Weiler or to Global Law Books for a review. Martinus Nijhoff did not know Pr Weiler or Global Law Books.
The data available on the internet site of Global Law Books on 7 June 2010, indicates that there were hundreds of books waiting to be reviewed at the relevant time:
- 50 books published before and in 2004
- 56 books published in 2005
- 64 books published in 2006
- 87 books published in 2007
According to Global Law Book's criteria for selecting reviewers:
"Reviewer will demonstrate through the experience listed on their C.V. and a very brief explanation of their professional background, the academic or professional credential necessary to perform a critical analysis of the text to be reviewed".
In June 2007, we tried to find out whether Pr Weigend, who reviewed Dr Calvo-Goller's book, fulfils the criteria to write such a review. According to the website of the University of Cologne's Faculty of Law, accessed in June 2007, Pr Weigend is a professor of Criminal Law and the Director of the Institute of Foreign and International Criminal Law. Pr Weigend's publications were available under his CV. However, the list of books and articles listed at that time, did not include any publication on international criminal procedure, which is the subject of Dr Calvo-Goller's book.
Six months after the claim was filed in Paris (July 2007), I again visited the website of the Faculty of Law of the University of Cologne, but Pr Weigend's CV, including the list of publications, had been removed. Since 2007 and until the day of the hearing in the Paris Court on 20 January 2011, Pr Weigend's CV and/or list of publications, was not available on the internet site of that university.
A list of Pr Weigend's publications was submitted to the Court by Pr Weiler. According to this list, Pr Weigend wrote an article in 2004 entitled "Harmonization of General Principles of Criminal Law. The Statute and Jurisprudence of the ICTY, ICTR and ICC: An Overview", in Association Internationale de Droit Pénal (ed.), International Criminal Law: Quo Vadis? (Nouvelles Etudes Pénales vol. 19), 2004, pp. 319-335.
However, the "General Principles of Criminal Law" are the heart of substantive international criminal law, not international criminal procedure.According to Pr Weigend's publications listed on the website of the Deutsche National Bibliothek and as submitted to the Court by Dr Calvo-Goller, Pr Weigend published an article, a year after his review of her book, also on substantive criminal law: "Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges", 6 Journal of Criminal Justice (2008), 471, 487.
Consequently, as evidenced by the lists of publications submitted by Pr Weiler and Dr Calvo-Goller to the Court, Pr Weigend did not publish anything on international criminal procedure. Pr Weigend's publications focus on German criminal law, German criminal procedure, and comparative criminal procedure.
In 2007, there were some two dozen well-known scholars on international criminal procedure, some of which have published extensively on the subject. Dr Calvo-Goller's book is on international criminal procedure, and it is still not clear to me, even after the Court hearing, why Pr Weiler would choose to ask Pr Weigend to review the book, instead of a scholar fluent in the field. In order to "perform a critical analysis of the text to be reviewed", knowledge on the subject is required. Teaching in related fields may not be sufficient unless the reviewer demonstrates that he published, and consequently did some research, or has professional experience, in the field of the text to be reviewed.
THE STATEMENTS MADE IN THE REVIEW
According to Pr Weigend's review
"…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".
To a scholar, such a statement can mean that the author did not do any research; that he or she simply repeated sections provided in an instrument; that the work lacks analysis, or all of the above. Going over the 342 pages of the text of Dr Calvo-Goller's book trying to find at least some justification for this statement, I could not find one page that did not add something to the basic texts: whether by comparing texts, stressing the lack of clarity of a given text, pointing to discrepancies between texts, critiquing the procedural rules, demonstrating difficulties in application or interpretation, or showing the improvements made in the basic texts of the ICC in relation to those of the ICTY and ICTR.
Dr Calvo-Goller referred to 47 books, 294 articles and 22 reports. Is this scant? In relation to which standard? In addition to the secondary literature cited, Dr Calvo-Goller referred to 172 judicial decisions, and 61 judgments. Obviously, a reference is not included in a text out of the blue – it serves to emphasize or clarify a point or a difficulty, provide means of interpretation or add to the subject matter. Nonetheless, Pr Weigend wrote what he did and stood by what he wrote in his review.
In the review Pr Weigend wrote on Dr Calvo-Goller's book, he held that
"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)".
In note 635 (page 146), in the context of the inquisitorial system, Dr Calvo-Goller wrote as follows:
"Though not being under an obligation to do so, the defendant is expected to cooperate with the prosecution. For examples of the consequences of cooperation or non-cooperation with the Prosecutor on the sentence in the context of the ad hoc Tribunals, see above at 109".
In an inquisitorial systems such as the French system for instance, the defendant is expected to cooperate with the investigation, or bear the consequences for lack of cooperation. In the case of the ICC, the ICTR and the ICTY, the investigation is conducted by the Prosecutor.
The Rules of Procedure and Evidence of the ICTY and of the ICTR, explicitly provide that the cooperation or the lack of cooperation of the defendant with the Prosecutor are taken into account in the determination of the sentence (Article 101, B - ii of the ICTY; Article 101 B-ii of the ICTR). Apparently, Pr Weigend was not aware of the judgments on this issue cited in Dr Calvo-Goller's book (Blaskic – March 3, 2000, §§ 773-775; Erdemovic, November 29, 1996, §§ 100-101; Erdemovic, March 5, 1998, pp. 17-18; Kambanda, September 4, 1998, §§ 46-47).
Even if Dr Calvo-Goller was mistaken on the issue of cooperation with the prosecution (which she was not), Pr Weigend's statement that such an author "…can hardly be expected to sensibly analyze…the implications of admitting hearsay evidence, written transcripts and statements of anonymous witnesses on a "mixed" process", is unfounded. Pr Weigend offered no reason why Dr Calvo-Goller could not "sensibly analyze" these points. In fact, she criticized the total anonymity of witnesses and proposed ways of protecting the witness while allowing the defence counsel, and not the accused, to know the identity of the witness.
Further, and unless Pr Weigend's review was meant to be ironic, it contains a number of contradictions. On the one hand, Pr Weigend states that Dr Calvo-Goller "simply restates the content of the relevant parts" of the various instruments, and he finds that the
On the other hand, Pr Weigend concludes that: "Karin Calvo-Goller has undoubtedly invested much time and effort into this book". With all due respect, for what did she invest time and effort into this book? To restate and to rehash? Knowing Dr Calvo-Goller's pace of work, a few months would have been enough if her book was limited to restating and rehashing existing texts. It took her three years to conduct her research, which included attending hearings at the ICTY in the Hague, to understand firsthand the difficulties encountered by defence attorneys in that specific context, and another two years to write the book.
Further, how can a book which according to Pr Weigend does no more than restate and rehash existing texts "serve as a first systematic introduction to the procedural issues confronting the ICC", as stated in his review?
Pr Weigend's review is 39 lines short. He may have wanted "to receive ... a principled analysis of the Court's general procedural structure", but Dr Calvo-Goller did not claim to have written a book on this subject. The title of her book leaves no room for doubt: The Proceedings the International Criminal Court, ICTY and ICTR Precedents.
In my view, Pr Weiler should not have published Pr Weigend's review in the first place. I do not know what academic interest he served by publishing this specific review.
. He stated that this would prevent him from being a judge in the U.S., even if sentenced to a fine. I do not know if this is so under US law.
He asked for a judgement on the merits of the case even if the Court would find that it has no jurisdiction.
I conclude with a comment made on the web by someone who had the courage to go against the stream:
"…I also think that the review written by Thomas Weigend should never have been accepted for publication by the editors. The review is less than a page long, and the criticism is thus necessarily highly superficial. There's just no way you can do justice to a book in this way.
(Criminal Law Forum (2006) 17:355–359), who is even more of an expert on the topic than Weigend, you see that it is just a matter of opinion. Ambos refers to the book as a 'well written and excellently researched study,' and 'an invaluable tool for defence lawyers, as well as representatives of the victims.' And he concludes his review by saying that the book 'can be highly recommended.' Ambos' positive review is not available for free on the internet, so anyone who 'googles' the book, and this is how we all find our reviews nowadays, will only find the negative review of Weigend.
Of course, everybody is entitled to his opinion. But the freedom of expression should not be interpreted as a right to mistreat a book, which probably took years to write. Mind you, I have not read the book myself, so I am not defending the book. Instead, I am calling for some sense of decency of the book reviewer in general.
So I hope that, instead of using the incident to make fun of Karin Calvo-Goller, as most people seem to do at the moment, we might also use this incident to look at what we expect of a good book reviewer."
The Court will render its decision on March 3, 2011.
Under French Law, "diffamation" is not a crime as reported, it is a "délit" (misdemeanor). This type of misdemeanor is irrelevant when requesting a visa just like a parking ticket.What Pr. Weiler risks is a fine.
Doctor in Law of International Organisations and Economic Relations (Panthéon-Sorbonne), Master of Comparative Jurisprudence (N.Y.U. – 1974), Member of the International Court of Arbitration of the International Chamber of Commerce (1997-2006), Former (actual honorary) member of the Paris Bar (1972-2000), Member of the Bar of Israel
For extracts of Pr TIGAR's review on Dr Calvo-Goller's book
For extracts of Pr AMBOS's review on Dr Calvo-Goller's book