On 25-27 October 2017, I was invited by The Royal Netherlands Academy of Arts and Sciences (KNAW) to give a presentation on the Position of the Defence and Adequate Facilities at the Academy Colloquium titled “International Criminal Justice and the Enforcement Deficit: In Search of Sui Generis Theories and Procedures.” The Colloquium was organized by Professor André Klip (Maastricht University) and Professor Steven Freeland (University of Western Sydney) and followed a one-day master class for PhD students on methodology of International Criminal Law and foundations of International Criminal Procedure. The Colloquium’s overarching topics were provocative, touching upon some of the most existential questions of international criminal justice and the purposes of establishing international(ized) criminal tribunals and courts: What is international criminal justice? Should it be built on national experience or is it something of its own nature? In answering these questions, the presenters were asked to think outside the box and to challenge or poke at orthodoxies and firmly held beliefs. The presentations were excellent; stimulating, interesting, and lively discussions.
For my presentation on the Position of the Defence and Adequate Facilities, the predicate for the debate (reflected in the preliminary program of the Colloquium) rested on four points:
- The procedural setting of domestic jurisdictions does not work for international criminal proceedings;
- The defense is burdensome, delaying victims’ justice and draining tribunal resources, etc.;
- The accused may not need the same set of procedural rights and safeguards as in domestic trials; and
- A new “right” approach should perhaps consider the “demands” of international crimes.
The provocative nature of the debate points – subjective, pro-prosecution, victims-centric – echoes the narratives often heard about the slow pace of justice at the international(ized) criminal tribunals and courts that: (a) the defense is unnecessarily dragging out the proceedings and wasting time and resources; and (b) the defense is not fully engaged in the all-inclusive goals of these judicial institutions (fostering peace and reconciliation and respect for the rule of law / human rights, providing an authoritative historical record of the crimes, and giving victims a forum to tell their stories and achieve a sense of closure, etc.)
Take, for instance, legal scholar Jenia Iontcheva Turner, who argues that international(ized) criminal tribunals and courts should adopt modalities to prevent defense counsel from engaging in tactics that risk “muddling the [historical] record,” “opening doors for revisionist accounts,” or “preventing future generations from ever coming to know the true facts of the crimes committed.”1 Jenia Iontcheva Turner, Legal Ethics in International Criminal Defense, 10 Chi. J. Int’l L. (2010) 697-703, 713. Or, consider the International Criminal Tribunal for the former Yugoslavia (ICTY) disciplinary case of In the Matter of Mr. Toma Fila, where the Disciplinary Panel found that defense counsel have a positive obligation to protect the reputation of the tribunal, which extends to counsel’s conduct outside the tribunal.2 See In the Matter of Mr Toma Fila, DP-2-13, Decision of the Disciplinary Panel in the Matter of Mr. Toma Fila, 23 October 2012, para. 70. See also In the Matter of Mr Toma Fila, IT-13-93-Misc. 1, Decision on Appeals to the Disciplinary Board, 8 July 2013.
These views hardly represent the role of the defense, which, for all intents and purposes, is no different in international(ized) criminal tribunals and courts than it is in national courts. Defense counsel have no obligation to advance any aspirational goals that the founders of the international(ized) criminal tribunals and courts may espouse, save for when it is necessary to advance their client’s case. Defense counsel cannot be expected to filter their representation of their clients (their theories, strategies, and tactics) through the lens of moral conscience or push their client’s representation aside to pursue a higher calling such as historical truth or victims’ justice. Put differently, defence counsel have an obligation to serve justice by promoting their client’s interests. Professional ethics demand that defense counsel employ all available tools and options to ensure that their clients are afforded all the benefits of a robust defense, limited only by the rules of procedure and evidence and any proscribed conduct set out in the applicable codes of professional conduct.
Seemingly, the question that arises from the predicate of the debate as presented by Professors Klip and Freeland is the proverbial elephant in the room when discussing judicial efficiency and economy (less time-consuming and resource-draining proceedings that result in more indictments, charges, and convictions) at the international(ized) criminal tribunals and courts:
Whether criminal proceedings can be designed to maximize the desired results – indictment of suspects and conviction of the accused – in a quicker, less cumbersome, less expressive manner than the past and ongoing international(ized) criminal tribunals and courts?
That suspects and accused are entitled to a defense is not in question in any discussions related to judicial efficiency. It is generally accepted that if the proceedings and the results of the proceedings are to have any semblance of legitimacy, suspects and accused must be afforded a defense. Article 14 of the International Covenant on Civil and Political Rights expresses, in the most elementary form, what such a defense entails.
So, the right to a defense is not in play. What is in play is how much of a defense is necessary? Put differently, is it necessary to afford the accused the same rights at the international(ized) criminal tribunals and courts as guaranteed to them in their national jurisdictions? Put yet another way, considering that victims are entitled to justice, should the fair trial rights of the accused not be diluted to the degree necessary to ensure maximum justice to the victims and to achieve the extra-judicial goals of these tribunals and courts?
Simply because trials at the international(ized) criminal tribunals and courts tend to be lengthy, and simply because there is an occasional acquittal or a dismissal of charges, does not mean that the prosecution (and by extension the victims), are disadvantaged, and that the proceedings are tilted in favor of the accused.
If anything, the opposite is the norm. By the time the defense gets into the picture, the prosecution has been working the case for months, if not years. The resources afforded to the defense hardly match those provided to the prosecution. This disparity is especially acute at the early stages of the proceedings leading up to the confirmation of charges at the International Criminal Court (ICC). As I recently noted in my Commentary to Registry’s Concept Paper on Review of the International Criminal Court Legal Aid System, at this stage of the proceedings, the defense for an indigent person under investigation is not afforded a full complement of a team to effectively mount a proper defense. And when a case proceeds beyond the confirmation of charges, the disparity in resources between the prosecution and the defense becomes more pronounced.
From the inception of International Criminal Law at the International Military Tribunal at Nuremberg (IMT), the playing field has hardly been level. While Robert H. Jackson, Associate Justice of the United States (US) Supreme Court and Chief Counsel for the Prosecution in the Nuremberg trials, is often quoted for his memorable lines about affording the defendants “the judgment of the law” and not passing on a “poisoned chalice,” few question some of his inappropriate and unethical behavior prior to and during the trial proceedings.
For instance, Telford Taylor (an Assistant to Chief Counsel Jackson who later became the Chief Counsel for the Prosecution for the remaining trials at Nuremberg when Jackson resigned) in The Anatomy of Nuremberg Trials: A Personal Memoir recounted how Jackson was meeting with the judges prior to trial, giving his opinion on the defense case and sharing his concerns that the prosecution should be selecting counsel for the accused and summoning witnesses for the defense.3 Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 133–34 (Little, Brown & Co. 1992). Taylor also recounted an incident when Jackson became infuriated because the defense was taking too much time to print documents for the trial, which, in Jackson’s view, were all irrelevant and contained propaganda. Criticizing the judges for failing to understand the political matters behind the case and letting the defendants attack their countries’ policies, Jackson visited US Judge Francis Biddle and Judge John J. Parker (alternate US Judge at the IMT), threatening to resign unless the judges adopted the prosecution’s proposals. Taylor’s quote from Judge Biddle’s memoir provides a vivid illustration:
Bob Jackson came to see [Judge] Parker and me after lunch…in a very wild and uncontrolled mood…. He threatens to resign – this is not new; talks about refusing any printing of documents which he does not approve (irrespective, apparently, of what we order!); says [Judge] Lawrence always rules against the Americans (this is absurd)…. Bob still contends that the defendants are engaged in active propaganda and the Tribunal is falling into disrepute…. Parker and I tried to cool him off, said we’d help to prevent unnecessary printing and agreed that Lawrence is too easy-going.4 Id., at 359.
This sort of conduct by Jackson to game the process is hardly consistent with his oratory, and certainly reveals the lack of a fair and level playing field.
While the ICTY may have gotten it right in formulating a hybrid procedure, it has projected (flaunted) a pro-prosecution, conviction-oriented aura, reflected in the banners it displays in the lobby of the Tribunal and other promotional material. Rather than adopting a motto akin to what other august judicial institutions have, such as “Equal Justice Under Law” engraved on the façade of the US Supreme Court building, visitors (and accused) are greeted with banners stating: “Bringing war criminals to justice, and justice to victims.” Not exactly the sort of motto that would instill confidence in the accused that they could expect a fair shake at this tribunal.
Some have argued that the French-modeled civil law system with an investigating judge conducting investigations for the parties may be more efficient and more appropriate in achieving fairer results. There was a time when I thought so too. However, from my experience at the Extraordinary Chambers in the Courts of Cambodia (ECCC), some investigating judges did not conduct fair and impartial investigations. If anything, they set out to merely validate what the prosecution had drafted in the “introductory submission,” the charging document at the ECCC. Judge Marcel Lemonde went so far as to instruct his investigators to “find more inculpatory evidence than exculpatory evidence.”5 See Case of NUON Chea et al., 002/9-10-2009-ECCC/PTC(01), Ieng Sary’s Application to Disqualify Co-Investigating Judge Lemonde and Request for a Public Hearing, 9 October 2009, Annex containing Chief of Intelligence and Analysis Unit Mr. Wayne Bastin’s statement. The trial proceedings at the ECCC did not prove to be much better.6 See Bringing Domestic Cases into Compliance with International Standards based on my presentation at the 2012 ECCC legacy conference, describing some of the deficiencies, such as conducting unrecorded interviews with witnesses, or conducting “staged” interviews, where pre- prepared questions and answers were read by the witness into a recording device.
The ICC has also proved to be a disappointment. It surely will continue to disappoint – especially now that the sordid truth is trickling in about the first Prosecutor, Luis Moreno Ocampo and the current Prosecutor Fatou Bensouda’s false denials about her contacts with Ocampo; a scandal that has rocked the ICC, dubbed, Ocampogate. See my posts here, here, here, and here.
The Rome Statute and the ICC Rules of Procedure and Evidence are a product of diplomatic negotiations. Where the drafters of these founding documents got it wrong was adopting a procedure susceptible to the predilections of the Presiding Judge of the Trial Chamber. In the intent to establish a sui generis procedure, flexible and neutral enough to accommodate the fancies of the drafters from various legal systems, the drafters created a procedure that turns the ICC trial proceedings into an unpredictable pendulum, with trials being conducted under the classical judge-controlled civil law procedure to the laissez-faire common law procedure to anything in between.
To illustrate this point, Article 64(3)(a) of the Rome Statute provides that, upon assignment, the Trial Chamber must “[c]onfer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings.” Article 64(8)(b) permits the Presiding Judge to direct the conduct of the proceedings, giving him or her wide discretion to adopt trial procedures based on his or her legal culture, experiences, and biases. Rule 140(1) of the ICC Rules of Procedure and Evidence provides that if the Presiding Judge does not give directions under Article 64(8), the parties “shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber.” If the parties do not agree, “the Presiding Judge shall issue directions.” Effectively, Article 64 and Rule 140 give the Trial Chamber authority to adopt whichever procedure it sees fit. This disparity in trial practices based on the Trial Chamber’s predilections can be seen, for example, when comparing the approaches adopted in the Lubanga and Ruto and Sang cases.
Variability, unpredictability, and unreliability are not the hallmarks of a mature judicial institution – not if the institution wishes the public at large to recognize it as fair and unbiased, and to accept its decisions and results.
Is there really a level playing field?
There are plenty of examples (as I showed during my presentation) that reveal just how difficult it is for a suspect or an accused to fully enjoy their guaranteed fair trial rights. In the court of public opinion, from the moment someone is deemed a suspect, the person is presumed guilty. This belief is reinforced when the charges are confirmed.
As much as we may expect judges to be intellectually honest in conducting the proceedings and assessing the evidence, it hardly reflects reality. We expect judges “to hav[e] little visceral reasonable doubt, but possess perfect intellectual reasonable doubt – a paradigmatic box into which the evidence either did or did not fit” (as my friend and colleague Alan Yatvin described a judge, before whom he regularly appeared in non-jury trials).
However, I dare say, Judge Frederik Harhoff’s humanitarian/victim-centric, burden-shifting sentiments (you may recall he was dismissed as an ICTY judge for demonstrating an unacceptable appearance of bias in favor of conviction) are shared by many judges. These judges are agenda-driven. While not always obvious, their anti-accused bias is expressed in their day-to-day decisions throughout the proceedings. Often, these (and other provincially-minded and stubbornly chauvinistic) judges try to make the statutory provisions and rules of procedure and evidence fit into their own legal tradition to justify a desired result, as opposed to applying the provisions or rules as intended.
The problem, in part, rests with the fact that many of the judges are simply not suitable for these international(ized) criminal tribunals and courts. I am not the first to point this out.7 See Michael Bohlander, The International Criminal Judiciary – Problems of Judicial Selection, Independence and Ethics, in International Criminal Justice, A Critical Analysis of Institutions and Procedures 325, 326 (Michael Bohlander ed., 2007). Judge Bohlander conducted a survey of ICTY/ICTR Judges, wherein he found that eight out of 25 Judges (almost one-third) of the Judges at the ICTY and the common ICTR Appeals Chamber had no prior criminal experience. Id., pp. 332-54. But aside from selecting better judges, there are other measures that should be taken, such as drafting (1) guidelines for judges who may be unfamiliar with the adopted procedures; (2) benchbooks containing a uniform, predictable, and precise step-by-step approach on how to conduct the proceedings; and (3) commentaries to the rules of procedure and evidence, describing the legislative history and the intended purpose of the rule or provision to assist in its application; and conducting mandatory judicial trainings for those who are joining the judiciary at the international(ized) criminal tribunals and courts.
There is no reason to be concerned that the international criminal proceedings are time-consuming, resource-draining, and do not always bring the desired result of victims’ justice. Diluting the rights of the accused is not the solution, and any attempts to do so will undermine the credibility of these judicial institutions. Victims will always be to some extent dissatisfied since not every perpetrator will be prosecuted and not every crime will be charged. Also, the fact that an accused occasionally is acquitted does not mean that the procedure failed the victim to the benefit of the accused. Invariably, accused are acquitted when the prosecution fails to prove the charges, which can be due to a variety of reasons, not least of which is incompetence.
Setting aside the debate as to which of the two systems may be more suitable for war crimes cases, it is my take that fewer problems would emerge if the courts consistently apply the adopted procedure. As imperfect as the common law and civil law may be, they at least have a rich history of practice and jurisprudence established over centuries. Granted, it is easier to uniformly follow well-established procedures than to improvise, recalibrate, and cobble together different practices with little or no appreciation as to their interpretation and application. However, considering the large scale of war crimes cases, adjustments are necessary, and often will require looking for solutions from different procedural systems.
A consistent procedure is a must for an international(ized) criminal tribunal or court if it wishes the public and the accused to perceive the process to be fair and have confidence in the outcomes of trials. This is especially important for international criminal proceedings, where invariably there are certain political elements at play.
Whatever procedure is selected for international criminal justice, it must ensure that the accused is afforded a robust defense, meaning that the defense is on equal footing with the prosecution as to the means of presenting its case. In other words, the defense should have some semblance of equal arms with the prosecution when it comes to investigating the case, filing all relevant and necessary submissions, securing all relevant and necessary witnesses (including expert witnesses), and trying the case with a qualified and adequate staff that is properly remunerated. Depending on the complexity and magnitude of the case, the human and financial resources allocated to the defense must comparatively match the prosecution’s in light of each side’s respective functions and responsibilities.
|↑1||Jenia Iontcheva Turner, Legal Ethics in International Criminal Defense, 10 Chi. J. Int’l L. (2010) 697-703, 713.|
|↑2||See In the Matter of Mr Toma Fila, DP-2-13, Decision of the Disciplinary Panel in the Matter of Mr. Toma Fila, 23 October 2012, para. 70. See also In the Matter of Mr Toma Fila, IT-13-93-Misc. 1, Decision on Appeals to the Disciplinary Board, 8 July 2013.|
|↑3||Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 133–34 (Little, Brown & Co. 1992).|
|↑4||Id., at 359.|
|↑5||See Case of NUON Chea et al., 002/9-10-2009-ECCC/PTC(01), Ieng Sary’s Application to Disqualify Co-Investigating Judge Lemonde and Request for a Public Hearing, 9 October 2009, Annex containing Chief of Intelligence and Analysis Unit Mr. Wayne Bastin’s statement.|
|↑6||See Bringing Domestic Cases into Compliance with International Standards based on my presentation at the 2012 ECCC legacy conference, describing some of the deficiencies, such as conducting unrecorded interviews with witnesses, or conducting “staged” interviews, where pre- prepared questions and answers were read by the witness into a recording device.|
|↑7||See Michael Bohlander, The International Criminal Judiciary – Problems of Judicial Selection, Independence and Ethics, in International Criminal Justice, A Critical Analysis of Institutions and Procedures 325, 326 (Michael Bohlander ed., 2007). Judge Bohlander conducted a survey of ICTY/ICTR Judges, wherein he found that eight out of 25 Judges (almost one-third) of the Judges at the ICTY and the common ICTR Appeals Chamber had no prior criminal experience. Id., pp. 332-54.|