Oral arguments in Prlić et al. concluded this Tuesday before the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber – some 12 years since I began representing Dr. Jadranko Prlić. The Appeal Judgement is expected by November. When all is said and done, it will have taken over 13 years from the time the accused turned themselves over to the ICTY to the conclusion of the appeal proceedings.
What a journey! Lawyers, assistants, investigators, and interns have come and gone. Babies born, brothers, sisters, mothers, and fathers departed. Heart attacks suffered, kidneys replaced, weight gained, hair lost. Engagements, affairs, marriages, and divorces. And wrinkles, lots of wrinkles. No one spared.
Prlić et al. was a large case. But so are most of the mass atrocity cases before the international tribunals and courts. It’s the nature of the beast: large, complex, time-consuming, resource-draining, energy-robbing cases that require enormous commitment and, in no small measure, personal sacrifice. Forget about your domestic practice: gone, unless you have a big firm with partners and associates to mind the store and stock the shelves during long periods of absence. Hard enough to keep your head above the water when a case is in an active stage – such as the pre-trial stage where you are trying to get a handle on the case while also searching for witnesses and evidence – sometimes without a clear vision or aim.
And all the reading. You are either trying to find the needles in the haystack (usually full of boring and useless material) or trying to get on top of a topic or discipline which is completely foreign to your educational and professional background – such as military science, political economics, or demographics. It is not enough to just know about the events of the case, you must also learn the history of the country and perhaps region, the political, economic, and administrative structures, the people and their cultures, and, above all, the historical context of the events. Nothing happens and no one functions in a vacuum. Putting the case – and more specifically the client’s position, actions, and legal and factual responsibility – in context is perhaps the single most challenging aspect of defending an accused during the trial proceedings or representing a convicted person on appeal.
Over the years, there were times when I questioned why I put myself through all the trouble to find a clever, out-of-the-box legal argument, to go through 10 or 15 or more drafts to get the written submissions just right, or to rack my brain in trying to craft a cross-examination strategy, which, if properly executed, would yield some benefit in advancing the overall theory of the case.
Worse yet was the frustration at times in dealing with the Trial Chamber judges.
Frustration is an understatement. The appeal submissions are public, so I am not revealing anything that is not in the open. Preparing for the appellate oral arguments was to experience post-traumatic stress disorder (PTSD). I am sure I am not alone.
Having devoted the better part of 5 years in court trying this case, having put on 8 months of a defense case under the most stressful of circumstances (the judges had us on a stop-watch approach, often imposing ridiculous limitations on the time to conduct direct or cross-examination), and then seeing that it was all ignored by the Trial Chamber is disheartening. It is disheartening to think that this Trial Chamber of the ICTY – a tribunal designed to contribute to the protection of human rights – would disregard the humanistic values rooted in the fair trial rights of the accused. Yet, it did. Repeatedly.
Despite these challenges and sacrifices, I am thankful that I have had the opportunity to be part of this endeavor to create and foster a rational and fair international criminal law system, where the human rights of all – including the accused and convicted persons on appeal – are fully respected, however inconvenient.
As for Prlić et al., it is now up to the Appeals Chamber to safeguard the legal and moral integrity and legitimacy of the proceedings. All we asked for was a full and fair assessment of the facts the Trial Chamber inexplicably and unjustifiably ignored. A tall, tall order considering the magnitude of the case and the unprecedented scale of the Trial Chamber’s failure to consider all relevant evidence: to assess it and weigh it in its totality and in context.
The waiting goes on.