Sunday, February 23, 2014

Sacrificing the Rights of the Accused for the "Success" of International Criminal Justice

In going through some of my old papers, I came across a speech I delivered at a conference in The Hague in November 2000 titled, "Sacrificing the Rights of the Accused for the 'Success' of International Criminal Justice."  Re-reading it 14 years later, I was struck by how timely the speech is even today in light of the split in international criminal justice that has resulted from several high profile acquittals at the ICTY in recent years.

I believe the split in international criminal justice ultimately can be summarized by the words of the Rwandan Justice Minister whom I quoted in my speech in the year 2000:

"If one would weigh the potential injustice to one man against the injustice to millions of people, a strictly legal interpretation of the issues would not be one to make."

The sentiment in this one sentence captures the gulf in international criminal justice between those who believe that international courts should limit their decisions to strict application of the law to the evidence, and those who believe that the "greater good" of "justice for the victims" sometimes requires that judges find ways to convict defendants even if the Prosecution has failed to bring forward sufficient evidence of guilt.

I reprint below the text of my entire speech from November 2000:

Sacrificing the Rights of the Accused for the
“Success” of International Criminal Justice

By Luka S. Misetic
            As the international community comes closer to its goal of establishing a permanent international criminal court to try those accused of violations of international humanitarian law, it is important that we look to the experiences of the two ad hoc tribunals to determine whether we can learn anything that will help us to improve the international criminal justice system.  For several years, it has been the perspectives of the prosecutors and judges of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) that have been publicized in legal, political and media circles.  I am pleased to have this opportunity to provide a different perspective to this discussion of international criminal justice:  the viewpoint of the defence.
            The ultimate success of international criminal law, and more specifically the ICC, ICTY and ICTR, should be measured not by the number of convictions achieved by each institution, but rather by whether “justice” was served in the trials before these international bodies. The process by which a verdict is reached is just as important as the verdict itself.  While this is a proposition that is widely accepted in principle, it has been my experience that there is disagreement in practice as to what constitutes “due process of law” in the international context.  From the perspectives of many defence lawyers at the ICTY, outside considerations can often infringe upon the due process rights of the accused.
            In order to understand how outside pressures on the ad hoc tribunals can impact the rights of the accused, one must start by examining the origins of both tribunals.  The ICTY and ICTR were both created directly by resolution of the United Nations Security Council.  The ICTY, for example, was established under Chapter VII of the United Nations Charter as an “enforcement measure” to restore peace to the former Yugoslavia.  The Security Council had made a specific finding that violations of international humanitarian law had constituted a “threat to peace” in the region, and thus the Security Council under Chapter VII could address that threat to peace by creating the ICTY. 
            From this beginning it is clear that the ICTY was established by an executive (not legislative) organ and charged with a specific political purpose: to restore peace in the region.  This political purpose is made even more clear in the official name of the ICTY: “the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.”  [Emphasis added].  Note that the title does not proclaim to be the “International Tribunal for the Trial of Persons Accused of Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991.”  The ICTY’s official title reflects the desire of the Security Council and the international community at large to address and punish serious violations of international humanitarian law.
            The ad hoc nature of these two tribunals, and the political circumstances that led to their establishment, have led to many shortcomings when it comes to protection of due process rights for the accused as guaranteed in Statutes of the tribunals.  Both the Office of the Prosecutor and the Tribunals’ Judiciary feel the burden of their mandates, which are to “restore peace” to the former Yugoslavia and to “prosecute persons responsible” for war crimes.  The reality is that “restoration of peace” and successful “prosecutions of persons responsible” are measured by one thing: convictions.  It would be difficult indeed to convince members of the “international community,” including NATO states that risked the lives of their soldiers to apprehend many of the accused at the ICTY, that acquittals should be viewed as a success and would “restore peace” to the region.
            Other outside pressures can impact the ad hoc tribunals.  Both the ICTY and the ICTR must annually seek funding from the United Nations General Assembly.  As anyone familiar with the process of fundraising will know, increased funding is very much related to whether the project for which funding is sought will be successful. Again, it is difficult to imagine that the ICTY could successfully obtain a budget increase by convincing the General Assembly that it was successfully acquitting people brought before the tribunal.  Indeed, the opposite is true:  the arguments made in recent years to the General Assembly often focus on the “success” of the Tribunal in apprehending and convicting those accused by the Prosecutor of war crimes.  In addition, the two ad hoc tribunals bear the burden of being the precursors to the ICC.  The success or failure of the ICTY and ICTR could have a great impact on the establishment of the ICC.  Acquittals would not have the effect of creating momentum for the establishment of a permanent court.
            Finally, and perhaps most importantly, the nature of the ad hoc tribunals makes them susceptible to pressure from outside forces.  Because the tribunals do not have a police force, an intelligence service, or an ability to gain immediate and unfettered access to the territory they are investigating, the ICTY and ICTR are very much dependent upon the cooperation of governments and international institutions.  For example, the tribunals have no ability to make arrests, gather intelligence data, or secure a crime site for investigation.  Without the cooperation of NATO and countries from the region, the ICTY and ICTR would be unable to fulfill their mandates.
            These outside pressures have impacted the work of the ICTY and ICTR.  Fundamental rights of due process, such as the accused’s right to confront witnesses against him, the burden of proof beyond a reasonable doubt, the right to a speedy trial without delay, and the right to be free from unlawful arrest have all been stretched, if not violated, on at least one occasion.  In the Tadic case, the first case before either tribunal, the Trial Chamber allowed the Prosecution to call witnesses whose true identities were withheld not only from the public, but from the defendant and his attorneys.  This gross violation of due process rights was compounded when it was later discovered that the two anonymous witnesses against Tadic had lied about their identities to the Trial Chamber and in fact had been coached by the secret services of the Bosnian government.
In the Kordic trial, public criticism of the slow pace of most trials at the ICTY led the Trial Chamber to allow the prosecution to script its questions with its witnesses on direct examination.  Furthermore, the prosecution was allowed to lead its witnesses by asking a series of “yes or no” questions.  In the case I tried before the ICTY, Prosecutor v. Furundzija, most of the testimony in the case (including that of accusing witness) was held in closed session and outside of public scrutiny.  This, in my view, violated Mr. Furundzija’s right to a public trial.  To this day, none of the testimony that is relevant to Mr. Furundzija’s guilt or innocence is available to the public.
The case of Stevan Todorovic provides a clear example of the political realities that face the ICTY.  Todorovic stood accused by the ICTY of serious violations of international humanitarian law, including crimes against humanity.  He remained a fugitive, however, evading arrest by NATO forces stationed in Bosnia by hiding out in neighboring Serbia.  NATO had no mandate to be present in Serbia or to make arrests on the territory of the Federal Republic of Yugoslavia.  Nevertheless, in September 1998, NATO announced that it had arrested Todorovic and was transferring him from Bosnia to The Hague for trial. 
            Todorovic’s defence counsel immediately moved to invalidate the arrest on the basis that Todorovic had been illegally kidnapped in Serbia by bounty hunters paid by NATO, then transferred to Bosnia where he was arrested by NATO forces.  The defence contended that this type of conduct by NATO was illegal under international law and tainted his arrest.  In a move that raised tensions between the Tribunal and NATO, the Trial Chamber in the case issued a subpoena to NATO and to the U.S. General who was in charge of the operation at the time, General Eric Shinseki.  The subpoena sought all information regarding the nature and circumstances of NATO’s arrest of Todorovic.
               The United States immediately objected, and used its leverage over the Tribunal to attempt to stop the subpoena.  The United States filed a statement with the Trial Chamber that made the threat explicitly clear:  the United States would stop making arrests unless the subpoena was withdrawn.  The statement was as follows:  "It should be of concern to all supporters of the tribunal's objectives that the resolution of these issues will affect the ability - and willingness - of S-For and other entities and States to detain PIFWCs [people indicted for war crimes], now and in the future."  A tribunal insider was quoted in the Guardian of London as saying that the Trial Chamber’s subpoena would “cut off the hand that feeds you.”  Once again, the rights of the accused to be free from unlawful arrest were being threatened by political concerns.   Approximately two months after the Trial Chamber’s subpoena, the Prosecutor’s Office announced that it had reached a plea bargain with Todorovic, thus eliminating the need to issue a subpoena to NATO and Gen. Shinseki.  Nevertheless, the Todorovic case provides an example of how the political circumstances of the ad hoc tribunals can have an impact on whether the rights of the accused will be enforced.
            Perhaps the clearest example of political pressure influencing the ad hoc tribunals is the Barayagwiza case before the ICTR.  In that case, the accused had been held for three years without charge.  Finally, defence counsel filed a motion seeking the release of the accused on the basis that his right to a speedy trial without delay had been violated.  The Appeals Chamber of the ICTR (which is the same Appeals Chamber for both ad hoc tribunals), after hearing the arguments, granted the defence motion and ordered that the accused be released.  In so doing, the Appeals Chamber held that “nothing short of the credibility of the tribunal is at stake, and to allow these proceedings to continue would amount to a travesty of justice.”  Because the Appeals Chamber is the highest authority at either tribunal, this decision was final and no appeal could be taken from the ruling of the Appeals Chamber.
            Immediately, however, politics intruded into the work of the Appeals Chamber.  The government of Rwanda, which sought Barayagwiza’s conviction, immediately protested and declared that it would no longer cooperate with the ICTR.  Indeed, Rwanda denied visas to all members of the Office of the Prosecutor, which made it impossible for the Prosecutor to conduct investigations in Rwanda or to prepare for trial.  In short, without Rwanda’s cooperation, the work of the ICTR would come to a halt.  A New York Times article from December 19, 1999 reflects the reaction of Rwanda and the mood that began to prevail in U.N. circles:

                 "If one would weigh the potential injustice to one man against the injustice to millions of people, a strictly legal interpretation of the issues would not be one to make," said Richard Sezibera, the Rwandan ambassador to the United States.
                 "If one wanted to make a comparison -- that is not explicitly accurate but indicative -- it would be like releasing Goebbels of Nazi Germany on a technicality," he added. "And that is not acceptable. It should not be acceptable to the world."

Due process rights are “technicalities” which should not impede the drive to convictions, according to the Rwandan ambassador. 
               A similar view was adopted by the Prosecutor herself, Carla Del Ponte.  Despite the fact that the decisions of the Appeals Chamber are final, Del Ponte brought a motion on the basis that the Prosecutor had “new evidence” which would cause the Appeals Chamber to reverse itself.  In reality, this was nothing more than an excuse so that the Appeals Chamber, in light of the political firestorm that had resulted, could reverse itself.  Del Ponte made no secret that this was her real motive, and she made this clear in her argument to the Appeals Chamber.  The Washington Post reported her comments as follows:

                "Whether we like it or not, we must come to terms with the reality that our ability to continue our investigations depends on Rwanda," she told the five-judge panel. Without the help of the country where the genocide occurred and so many witnesses reside, "we might as well open the doors to the prison."

               "It is my hope," she said in closing, "that Barayagwiza will not be the one to decide the fate of this tribunal after he decided on the Rwanda genocide in 1994."

Del Ponte thus made no secret of the fact that political considerations, and not necessarily the law and due process, required that the Appeals Chamber reverse itself.
            Surprisingly, this view was not only espoused by the Prosecutor, but by the Chief Judge of the ICTR herself.  In an article that appeared in the Washington Post on March 10, 2000, Judge Navanathem Pillay made perfectly clear the point that I too wish to make:  due process rights of the accused are often viewed as secondary to the political considerations surrounding the tribunals.  Judge Pillay is quoted as follows:
               "We are 52 years after Nuremberg, trying to apply rules of fair trial procedures that are expected of us in the year 2000," said Navanethem Pillay, the South African who serves as chief judge and president of the Arusha tribunal. But the refined nature of Western law, she said, can make a clumsy fit with the
               political reality that led to the tribunal. The court was created in November 1994 by the U.N. Security Council that had sat on its hands for six months rather than try to stop the slaughter.

               "No matter what an independent jurist you are, you have to take into account public opinion," Pillay said. "Can you imagine the uproar if the Oklahoma City suspect or the Unabomber was set free?"

Judge Pillay thus admits that “public opinion” influences the work of the ICTR, and that due process rights do not necessarily fit into the political purpose of the ICTR (and presumably the ICTY).    After hearing the arguments, the Appeals Chamber reversed itself and ordered that Barayagwiza continue to be held in custody for trial before the ICTR.  It seems that the political considerations discussed by Carla Del Ponte and Judge Pillay did take priority over the due process rights of Barayagwiza.

            The Todorovic and Barayagwiza cases provide perfect examples of the problems facing international tribunals in protecting and enforcing the rights of the accused at the international level.  While there is unanimous agreement on the principle that the rights of the accused, as enshrined in the International Covenant on Civil and Political Rights, should and must be respected, there is far less unanimity when it comes time to put into practice the rights that appear on paper.  The emerging system of international criminal justice will, in my opinion, only be a success when it is able to resolve issues like those raised in Todorovic and Barayagwiza by relying only on the law and the right to due process, without any reference to outside political concerns.