On 29 November 2013 the ADC-ICTY held its first and only legacy conference … in The Hague.
For over a year, significant efforts were made to get funding for a set of ADC-ICTY legacy conferences to be staged in the affected republics of the former Yugoslavia. Requests for financial assistance were sent to countless embassies and academic institutions. Only the U.S. Embassy in Belgrade and the Law Faculty of the Erasmus University of Rotterdam responded; the former offering financial assistance for the publication of a text on the conference, and the latter providing financial assistance to cover the cost of hosting the conference in The Hague. There would be no road show, no Q&A from the folks most impacted by the ICTY, no opportunity for the lawyers of the damned to be heard in situ. Just this one chance. And, not because of any real encouragement and support from the ICTY (not when one considers this institution’s boundless self-indulgent self-promotion, much to the exclusion of the Defence), but despite the lack of it.
What the ADC-ICTY Legacy Conference lacked in excess and tinsel, it more than made up in substance. This may be the true essence of the Defence legacy at the ICTY: the understanding of and appreciation for the defence lawyers is wanting, even after 20 years of toiling away trying to ensure the fair trial rights of the accused, of enhancing the legitimacy of this tribunal by its participation in the trials and appeals, and of robustly defending the accused who, for all intents and purposes, were convicted in the court of public opinion even before any evidence was ever heard. Perhaps this is why the ADC-ICTY – despite numerous efforts over the years – has been unable to strip the ICTY lobby of the welcoming banner, perniciously labeling the accused while suggesting a guilt determinative pedigree: Bringing war criminals to justice, bringing justice to victims. So much for even the appearance of a presumption of innocence.
The ADC-ICTY Legacy Conference delivered as expected. It not only highlighted some of the impressive achievements of the ICTY, but also exposed some of its weaknesses. The presentations and ensuing Q&A sessions underscored some of the most prevalent shortcomings, such as: the disparate application of law and procedure, the constant fiddling with the rules of procedure for the sake of expeditiousness while eroding the fundamental rights of the Accused, the appointment of unqualified judges and the resulting unevenness in the proceedings when the quality of procedural justice depends on the makeup of the bench. Also discussed were the reasons for forming the ADC-ICTY, such as the grossly inadequate resources allocated to the Defence, the actual inequality of arms, the negative image imputed to the Defence, the lack of a voice on matters concerning the rights of the accused and the rights of the Defence, and so on.
The level of discussion was high, yet moving; critical, yet constructive; serious, yet humorous. That no real solutions emerged was to be expected. The conference was more about taking away lessons learned, identifying persistent concerns, and provoking thought relevant for other tribunals, most notably the ICC. The conference was also about the tangible value of the ADC-ICTY as an association dedicated to the Defence. A lesson the ICC List Counsel should take to heart. Pure fantasy to think that an organ of the ICC, beholden to the Assembly of State Parties (not to mention the risk-averse personalities that such institutions attract), will ruffle feathers, let alone fight for the outsiders – that independent bunch of lawyers on the ICC List of Counsel.
The conference laid to rest any doubts about the utility of having all defence counsel practicing before the ICTY being compulsory members of ADC-ICTY. Objectively examining its accomplishments, it is hard not to think of the ADC-ICTY as the vanguard of the associations (or Bar) in international criminal justice. Easy to take for granted today the modalities put in place by the ICTY Registry, enabling the Defence, as a whole, to have a voice in policies under consideration, such as the payment scheme, resource allocations, travel, post-conviction relief matters, and more recently, issues related to MICT.
The judges who spoke and commented were as circumspect with the ICTY as they were with the Defence as advocates. While acknowledging some of the prevailing challenges and inequities faced by the defence lawyers, they offered tangible advice and the perspective from the Bench, which is often overlooked or unappreciated by defence lawyers in the heat of courtroom battle. Instructive.
Overall, the ADC-ICTY Legacy Conference can be summed up by U.S. Supreme Court Justice Louis Brandeis’ famous observation, quoted in the prepared remarks of Defence Counsel Suzana Tomanovic: sunlight is the best disinfectant. Modest as it was, the ADC-ICTY Legacy Conference was able to shine a bit of sunlight into the ICTY corridors and courtrooms. Perhaps this is also part, a substantive part, of the ADC-ICTY legacy: the awakening within the ICTY that its legacy is not the sum total of its convictions, or the extent of its jurisprudence, but also the manner in which it functioned with all its faults and misadventures – the ADC-ICTY not being one of them.