With an opening gambit that potential Russian accused charged with atrocity crimes witnessed daily on the news and social media cannot get a fair trial because they’ve been already tried, judged, and convicted in the court of public opinion (as if this is not the norm for all suspects and accused before international and even national criminal tribunals), I was asked by a colleague my views. Read on.
Convictions from courts of public opinion or from the now fashionable Peoples Courts are the least of my worries when I represent any suspect or accused. Ditto were I to represent a Russian officer – presumably of high rank, since the International Criminal Court (ICC) or other international criminal tribunal will be disinclined to go after foot-soldiers – alleged to have committed crimes in the ongoing Russo-Ukrainian war.
Judges are human like the rest of us and are just as likely to being influenced by what they see and hear on TV. Donning the judicial robe does not shield them from forming preconceived opinions, nor does it endow them with wisdom, logic, fairness, detachment, and impartiality. Judges can be as partial, as petty, and as predisposed as the rest of us. But for the most part, and I mean the very most part, judges conscientiously make concerted efforts to set aside their beliefs or opinions, and scrupulously endeavor, even struggle, to be fair, balanced, and open-minded.
Judges expect the prosecution to meet its burden, to play by the rules, to seek justice as opposed to blindly pursuing a conviction, irrespective of the quality of the evidence; a tall order rarely fully filled. Thus, to argue as a forgone conclusion that because the court of public opinion has rendered convictions based on what is found in the press and social media, judges at the ICC or other international tribunals are incapable of being fair and impartial, is to condemn the entire judiciary and to effectively claim that all judgments emanating from international tribunals are fraudulent and illegitimate.
Does this mean that because international judges are by and large fair and impartial, that defending Russian suspects and accused, especially while the war is raging on, is not without significant challenges? Of course not. To the contrary, the challenges are significant and seemingly insurmountable. Hence my advice to think carefully before committing to representing a Russian. The going will be tough, frustrating, fairly overwhelming, and objectively wanting in affording suspects and accused all of the fair trial rights specified by the ICCPR and guaranteed by the applicable statute.
Whether prosecuting or defending, the essence of a trial is about keeping bad information out and getting good information in. Simplistic as it sounds, that’s it. What is anything but simplistic, however, is knowing how and having the capacity to challenge evidence that is not authentic, reliable, or relevant, and conversely, to have evidence admitted that meets these criteria. You may recall from an earlier post, co-authored with Noah Al-Malt on Defending in the age of open source digital user-generated evidence, it all comes down to foundations: predicate evidence that is essential in showing that the material evidence is authentic, reliable, accurate, trustworthy, and relevant.
By now you might be asking what does this have to do with defending Russians (or anyone else for that matter) on mass atrocity charges during an ongoing conflict? Everything. Challenging the admission of or weight accorded to evidence because it is unauthentic or unreliable, or seeking to have evidence admitted (assuming it can and is found) assumes that there are sufficient facilities and resources made available to the defence to properly investigate, secure, examine, and test the evidence. My experience tells me that these will be very expensive cases to diligently prepare for trial and try.
Unless there is a deep pocket funding for the defence, resources to carry out proper investigations and to test the authenticity and reliability of certain evidence (here I am referring not only to open source digital user-generated evidence, but also physical evidence, particularly of the military type), are unlikely to be sufficiently available to the defence – certainly not to the extent made available to the prosecution, but also not anywhere near resembling the often touted, but rarely seen, notion of equality of arms.
But even if resources were not an issue, there are other obstacles that make it improbable that the defence will be able to conduct a proper investigation in the middle of a war zone.
Putting together a proper team is essential. But how feasible will it be in finding reliable investigators to gather evidence, track down leads, meet with witnesses, take statements, and convince witnesses to give evidence. That is going to be one of the major challenges.
Finding a qualified trilingual (English, Ukrainian, Russian) Ukrainian investigator who knows the lay of the land may not be difficult. But can you imagine him or her knocking on doors, going to shelters where witnesses may be residing, or to the neighboring countries where they have sought safety and peace, or rummaging in the rubble seeking to find evidence?
Setting aside issues of trust, confidentiality, diligence, and objectivity (issues inherently relevant when employing investigators who are close to the events in question), how likely is it to find someone who will risk their own safety, risk endangering and humiliating their family, or risk becoming an outcast and branded a traitor?
Finding trilingual Russian investigators may not be too difficult, but who would talk to them and how safe would it be for them to investigate in Ukraine and (and potentially in Russia). Investigators from elsewhere are not likely to fare any better. If they’re not fluent in Ukrainian and Russian, interpreters will be needed, and they will be just as likely to suffer the same risks as Ukrainian and Russian investigators.
Let’s face it, anyone working for the defence will be considered to be working for the benefit of a perceived guilty accused – to get him or her off. Intellectually, victims and those impacted by the ravages of war may (and it is a big may) understand the need to provide the accused with their fundamental fair trial rights. But human nature being what it is, and considering the enormous and sustained suffering of the Ukrainians, expecting them to rise above it all and provide what they would consider as giving aid and comfort to the enemy in the name of fairness, justice, and human rights – all of which was denied to them – is to naively assume for the implausible.
Now you might say, hold off, is not the prosecution collecting evidence objectively and impartially, both incriminating and exculpatory? Well, I have yet to see such an investigation – especially when perceptions and public outcry point to the guilt of one side. And why would a competent, experienced, diligent defence counsel rely on the good intentions of the investigators marshalled from near and far to investigate atrocities committed by Russians against Ukrainians. Intending no aspersions, forgive me if I am skeptical of this motley group of investigators with their disparate ways of thinking, training, approaches, and professional cultures and experiences. Ditto for the prosecuting lawyers who may also be on the ground or parachuting in on occasion. And ditto for most of the civil society groups and NGOs gathering evidence.
Expect also that governments are either collecting evidence or have at their disposal information that is normally not available to even the legion of investigators gathering evidence for the prosecution. Occasionally, such evidence will be made available to the prosecution under conditions that it is not shared with the judges or the defence without getting prior permission. Much of the time, such information will be used as a lead to gather other information. Nothing wrong with that, but if the original evidence is tainted or gathered through questionable means, and if this is not disclosed to the defence, challenging the reliability of the evidence being made available (the fruit of the original material) may be frustrated. As for the defence asking governments to assist in providing information, my experience has been that at best you get an answer such as we neither confirm nor deny that we have any such information, and at worst an unequivocal and irreversible no. Easy for governments to claim national security. Much of the same can also be expected from international organizations and NGOs. They too may be inclined to help the prosecution, but when it comes to defence the answer is invariably: no.
So, not being able to recruit essential team members, not being able to search for evidence, not having access to certain evidence, not being able to test the evidence, potentially not having access to critical experts due to a lack of funding, and not having the cooperation of states, puts the defence in a pickle. Even Russia, it can be expected, will not to come to the aid of one of its own unless highly connected. And even then, forget about getting access to daily reports from the bottom/ground going up and orders going from the top down, intelligence reports, internal directives, etc.
How to be diligent when being diligent is not possible due to circumstances beyond the defence’s control? And what of the accused and his or her rights?
Your mission, should you choose to accept it, as the refrain goes from Mission Impossible, is to make effort necessary and reasonable and possible to ensure that your client’s fair trial rights are met, and when not due to circumstances as already described, to diligently attempt to make a public and transparent record that shows, among other things, the shortcomings of the trial, the charade it may have turned in to, the efforts made by the prosecution to gloss over and minimize the impact of the shortcomings (such as the defence not being able to properly investigate), the disparity in resources and attendant asymmetrical treatment resulting in gross inequality of arms, and the judges’ tortuous logic in justifying any claims of fairness based on the highest international standards.
Put differently, your mission is to discredit the proceedings – from the collection of evidence to the confirmation of the charges, to the trial proceedings, to the rendering of the judgment. This can only be done by making every conceivable submission – in writing and in open court – to show how such proceedings are Kafkaesque. Essentially the record should show that when push comes to shove, in the name of justice and accountability, prosecutors and judges, courts and civil society and international organizations – and academics and the international community at large – are conveniently willing to dispense with the very same safeguards and standards they promote and demand that they demand of illiberal democracies and authoritarian regimes.
Inspiration can be drawn from the late maître Jacque Verges, renowned for introducing rupture strategy – attacking the state and its methods during colonial times as an explanation and justification of an accused’s actions – as a defence. While such a strategy would not work today, the principle of attacking the system or using the circumstances to show that the system as is flawed (even if not due to any nefarious conduct by the prosecution or judges) is not only an acceptable rupture strategy defence, but one that must be employed in order to be duly diligent – as mandated by the codes of professional conduct for defence counsel. (For more on defence counsel’s obligations in diligently providing a robust defence, see Michael G Karnavas, Codes of Conduct for Counsel in International Criminal Proceedings, Max Planck Encyclopedia of International Law (2020).
Realistically, the chances of prevailing will be slim. That’s irrelevant. Substantive justice – even if deemed to have been achieved – without procedural justice, is deficient, for if the procedure is flawed, the results are meaningless. This is what defence counsel will need to show – should they accept an assignment to represent a Russian accused before an international(ized) tribunal or court.
Thank you, Michael, for a detailed and timely analysis. The challenges you highlight cannot be understated. One matter that I’ve been thinking about recently, from a defence perspective, is this: you mention the very real difficulties that the defence traditionally encounters when asking for (potentially exculpatory) information from governments, international organisations and NGOs. But what about requests for assistance to the Russian government itself? Assuming, as you do, one would be representing a high-ranking Russian officer, or a fairly high-level politician, how much cooperation could one reasonably expect to receive from Russian state authorities? On the one hand, superficially, it might be assumed that the Kremlin would be keen to provide as much exonerating material to the defence as it possesses. On the other hand, experience has taught us that a government that has declared that the ICC has no jurisdiction in a given case, or at all, or that proceedings are otherwise a shame, may consider it politically and diplomatically expedient to simply not recognise what is going on in The Hague and not engage. It’s not easy to predict what would happen in a real case, but my guess is that the Russians would adopt the latter approach.
Important issue. No doubt.
I do agree, that conducting proper investigation, is extremally difficult for the defense. When the system is built or rely on adversary method, where each side build its own strategy and evidences, decent, impartial, fair judges and systems can’t help too much many times (let alone concerning international tribunals and correctly mentioned in the post).
Yet, and with all due respect:
On one hand, you write, that judges are like all of us (biased by nature as every human beings). On the other, you describe them as struggling sometimes, to put aside their capricious personal partiality. So, they are not like any other human being (if they struggle, and they don’t typically). Why would one human being, Western one let alone, struggle for reaching justice and truth? (as admitted by you). Putin is the aggressor here, and that’s it. Why having second thought?
So, even according to you, they are not as all of us.
And they are not at all like us, because of the simple truth:
They have personal identity or convictions or persuasions (like all of us) but, also professional identity. In order to succeed in their job or career, they must stick to their professional identity, surly more than relying on their personal one. That’s it. Like every other human being, they want to succeed in their work or career. To succeed, means to ignore (easily most of the time) their personal identity, and be focused on the professional one. Suppose (just for the sake of the methodology):
That in criminal case, we have the accused person. Suppose even Putin (hypothetically). The judge can be personally persuaded or not, that he is, one of the greatest dictators ever born. Would it matter (speaking of procedure and justice) if the prosecution would want to put on him the burden of proof ? Every judge would laugh. He wouldn’t let them, whatsoever ! Appropriate procedure will take over. Will prevail no doubt. What is the meaning of it finally:
That his professional identity, took over, his personal one. The system in fact, took over. That is how the system is built. That’s it.
Thanks
Very thoughtful, Michael