{"id":4578,"date":"2023-03-28T04:31:54","date_gmt":"2023-03-28T02:31:54","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=4578"},"modified":"2023-03-28T04:32:13","modified_gmt":"2023-03-28T02:32:13","slug":"defending-russian-suspects","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2023\/03\/28\/defending-russian-suspects\/","title":{"rendered":"Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion"},"content":{"rendered":"
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\"\"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\u2019ve 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.<\/p>\n

Convictions from courts of public opinion or from the now fashionable Peoples Courts<\/em><\/a> are the least of my worries when I represent any suspect or accused. Ditto were I to represent a Russian officer \u2013 presumably of high rank, since the International Criminal Court (ICC) or other international criminal tribunal will be disinclined to go after foot-soldiers \u2013 alleged to have committed crimes in the ongoing Russo-Ukrainian war.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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\u2019s 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<\/em><\/a>,<\/em> it all comes down to foundations: predicate evidence that is essential in showing that the material evidence is authentic, reliable, accurate, trustworthy, and relevant.<\/p>\n

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.<\/p>\n

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 \u2013 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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?<\/p>\n

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?<\/p>\n

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\u2019re 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.<\/p>\n

Let\u2019s face it, anyone working for the defence will be considered to be working for the benefit of a perceived guilty accused \u2013 to get him or her off<\/em>. 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 \u2013 all of which was denied to them \u2013 is to naively assume for the implausible.<\/p>\n

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 \u2013 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.<\/p>\n

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<\/em>, and at worst an unequivocal and irreversible no<\/em>. 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.<\/p>\n

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.\u00a0 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.<\/p>\n

How to be diligent when being diligent is not possible due to circumstances beyond the defence\u2019s control? And what of the accused and his or her rights?<\/p>\n

Your mission, should you choose to accept it<\/em>, as the refrain goes from Mission Impossible<\/em>, is to make effort necessary and reasonable and possible to ensure that your client\u2019s 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\u2019 tortuous logic in justifying any claims of fairness based on the highest international standards.<\/p>\n

Put differently, your mission is to discredit the proceedings \u2013 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 \u2013 in writing and in open court \u2013 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 \u2013 and academics and the international community at large \u2013 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.<\/p>\n

Inspiration can be drawn from the late ma\u00eetre Jacque Verges, renowned for introducing rupture strategy <\/em>\u2013 attacking the state and its methods during colonial times as an explanation and justification of an accused\u2019s actions \u2013 as a defence.\u00a0 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<\/em> defence, but one that must be employed in order to be duly diligent \u2013 as mandated by the codes of professional conduct for defence counsel. (For more on defence counsel\u2019s obligations in diligently providing a robust defence, s<\/em>ee<\/em> Michael G Karnavas, Codes of Conduct for Counsel in International Criminal Proceedings<\/em><\/a>, Max Planck Encyclopedia of International Law (2020).<\/p>\n

Realistically, the chances of prevailing will be slim. That\u2019s irrelevant. Substantive justice – even if deemed to have been achieved \u2013 without procedural justice, is deficient, for if the procedure is flawed, the results are meaningless. This is what defence counsel will need to show \u2013 should they\u00a0 accept an assignment to represent a Russian accused before an international(ized) tribunal or court.<\/p>\n

\"Don't<\/p>\n

\n","protected":false},"excerpt":{"rendered":"

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\u2019ve 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 … Continue reading “Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_s2mail":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[18,21],"tags":[4,7],"class_list":["post-4578","post","type-post","status-publish","format-standard","hentry","category-icc","category-international-criminal-law","tag-icc","tag-international-criminal-law"],"yoast_head":"\nDefending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion - michaelgkarnavas.net\/Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/michaelgkarnavas.net\/blog\/2023\/03\/28\/defending-russian-suspects\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion - michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"og:description\" content=\"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\u2019ve 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 … Continue reading "Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion"\" \/>\n<meta property=\"og:url\" content=\"https:\/\/michaelgkarnavas.net\/blog\/2023\/03\/28\/defending-russian-suspects\/\" \/>\n<meta property=\"og:site_name\" content=\"michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"article:published_time\" content=\"2023-03-28T02:31:54+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2023-03-28T02:32:13+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2023\/03\/PublicOpinion-288x300.jpg\" \/>\n<meta name=\"author\" content=\"Michael G. 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