
Who would expect a full house of young (under 45 years old) lawyers from around the globe to eagerly (and punctually) arrive at the Peace Palace in The Hague, on 27 May 2023, one of those rare bright sunny days, to hear from and exchange views with a couple of speakers on the topic of International Criminal Institutions And Their Role In Combatting Crimes Against Humanity? This was to be the last event (other than the Gala later that evening, another memorable experience) of the four-day International Association of Young Lawyers (AIJA) Half-Year Conference.
The panel discussion was organized by the AIJA Human Rights Committee. My co-panelist was Catherine Marchi-Uhel, the head of the UN International, impartial, and independent Mechanism regarding Syria (IIIM), who was also at one time a Pre-Trial Judge at the ECCC. I had the opportunity and privilege to appear before Her Honor and file countless legal submissions. Perhaps most notable was one that led the Pre-Trial Chamber to hold that the extended version of joint criminal enterprise (JCE III) was not part of customary international – a decision that was upheld by the Trial Chamber and Supreme Court Chamber – despite what other international(ized) tribunals claimed. Moderating the panel discussion were Silvia van Schaik and Judith de Boer.
The discussion was lively. Naturally, my views were from the defence perspective. Unsurprisingly, I was blunt. I pointed out the challenges faced by the defence, the procedural unevenness and unpredictability of the interpretation and application of the rules, and the overall difficulties for the accused to uniformly enjoy the same level of justice and procedural fairness. This is, I explained, in part because of the hybrid nature of the procedure and the disparate legal backgrounds of the judges who often tend to interpret and apply the rules of procedure and evidence through their domestic prism. This parochial lens can lead to a lack of consistency – something which in my experience can be negatively consequential for the accused and exceptionally frustrating for the defence.
Ms. Marchi-Uhel – who, incidentally, conceptualized the IIIM’s structure and organized its functions from scratch – brilliantly explained how the evidence and data collected by the IIIM is being used by domestic prosecutors trying cases under national jurisdiction. The issue of collecting open-source material was raised, noting the difficulties in ensuring that the material is reliable and authentic, and the ongoing push to have a sort of central hub or clearinghouse for the collection of such evidence from other ongoing situation. Currently, there is a similar mechanism for the crimes committed against the Rohingya in Myanmar, and who knows whether other such mechanisms are on the horizon. For more on open-source material and the initiative to have a centralized clearinghouse, see here.
The Q&A was engaging, with questions focusing on the ongoing Russo-Ukrainian war and the push to establish what I call a boutique tribunal for the crime of aggression. Much of what I said on this and the difficulties in defending a Russian accused in the current landscape, can be found here and here.
Although most in the audience were from a commercial background, their enthusiasm, attentiveness, and perceptiveness – not to mention their warmth after the event and at the Gala – was most impressive. Were I not over the age limit (though still young at heart) I would join the AIJA. That not being an option, perhaps I’ll get an opportunity to participate in some future event.
The AIJA is the biggest worldwide association of young (under 45 years old) lawyers with more than 10,000 members coming from Europe, but also from the Middle East and the American and Asian Continents.