International Criminal Tribunals

Do They Deliver Truth? Can They Lead to Reconciliation?

With hands-on experience of international criminal law, Richard J. Harvey asks important questions about tribunals, fair trials, reconciliation and ‘justice’

I. Introduction

As Radovan Karadzić heads for The Hague, the effectiveness of ad hoc tribunals remains in question. International criminal justice should never be confused with international criminal law. In the anti-apartheid film A Dry White Season, Marlon Brando plays a lawyer who says: ‘Justice and law could be described as distant cousins; in South Africa they’re not even on speaking terms.’ However, when the new South Africa set about the process of national reconciliation, it did not set up an ad hoc tribunal to seek out and punish those responsible for the appalling reign of terror that was the apartheid regime.

Instead it set up a Truth and Reconciliation Commission (TRC) which recognised from its inception that atrocities had been committed on all sides and that, if the process of building the ‘Rainbow Nation’ were to stand a chance of success, then ‘truth’ had to be understood in a wider context than the forensic truth of a criminal trial, while ‘reconciliation’ had to mean more than granting amnesty (in its amnesiac sense of forgetting, if not forgiving).

One of the great architects, not only of the TRC but of South Africa’s constitution and bill of rights, is Justice Albie Sachs, who today sits on South Africa’s Constitutional Court. He subdivides the concept of truth into four categories:

a. Microscopic truth. The truth about which lawyers argue; the facts that have to be proved beyond reasonable doubt.

b. Logical truth: ‘The generalised truth of propositions, the logic inherent in certain statements arrived at by deductive and inferential processes […] Much of the law is concerned with finding the connections between microscopic truth and logical truth, that is setting microscopic truth in a logical framework.’

c. Experiential truth, derived from Gandhi: ‘The capacity to stand objectively outside yourself, and to look at your subjective experience in a truly unprejudiced way. Such experiential truth is deep and profound. Yet it embarrasses us in courts of law, we try to exclude it, we see it as subjective, irrelevant. We claim that all we want is the objective truth, what we call “the facts”’

d. Dialogical truth, which: ‘“assumes and thrives on the notion of a community of many voices and multiple perspectives,’ and accepts that: ‘there is no uniquely correct way of describing how the gross violations of human rights took place, there is no single narrator who can claim to have a definitive perspective that must be the right one’.

The TRC adopted this dialogical concept, embodied in the African philosophy of ubuntu: ‘a person is a person through other persons’. It expresses the need to recognise the inherent humanity in all people, regardless of their previous actions. As Sachs says, the act of publicly speaking about the suffering that resulted from one’s crimes is an act of ubuntu. The process of reconciliation in South Africa demanded that everyone – both the victims and the beneficiaries of apartheid – recognise the essential humanity in one another

II. Ad Hoc Tribunals Generally

In Eliot’s phrase: ‘[H]uman kind / Cannot bear very much reality.’ Yugoslavia did not get a truth commission; Rwanda has not had a reconciliation commission. Perhaps because too much truth, of the experiential, Gandhian kind or of the dialogical, ubuntu kind, would derail all attempts to harmonise future relations between the former constituents of Yugoslavia or might unleash a fresh frenzy of bloodletting in Rwanda.

Or perhaps human kind, as represented by the United Nations, has too large a share of its own guilt to expiate for its impotence and indifference in having turned blind eyes to machetes and machine guns in strategically uninteresting pockets of Africa and Eastern Europe. Does it embarrass us to witness the profundity of experiential truth; can we only stand the limited reality of the courtroom?

Former International Criminal Tribunal for the former Yugoslavia (ICTY) President Judge Antonio Cassese has said: ‘Justice […] is essential to the restoration of peaceful and normal relations between people who have had to live under a reign of terror. It breaks the cycle of violence, hatred and extra-judicial retribution. Thus Peace and Justice go hand-inhand”. After two long trials in The Hague, I have to ask whether any ad hoc court could ever be expected to deliver the kind of justice and peace that could lead to reconciliation.

The UN Security Council set up both the ICTY and International Criminal Tribunal for Rwanda (ICTR), asserting that: ‘the prosecution of persons responsible for serious violations of international humanitarian law would […] contribute to the restoration and maintenance of peace,” and would “contribute to ensuring that such violations are halted and effectively redressed’.

Cassese has written that: ‘The role of the [ICTY] cannot be over emphasized. Far from being a vehicle for revenge, it is a tool for promoting reconciliation and restoring true peace.’ The principal claims made for international tribunals are that they: (1) promote long-term peace and stability by replacing private vengeance with the rule of law; (2) create a historical record for the education of future generations; and (3) provide closure for injured individuals and communities.

We can challenge Cassese’s conclusion and ask whether the role of these tribunals can indeed be over-emphasised. Have the ICTY and ICTR in fact contributed to restoring and maintaining peace and halting and effectively redressing violations of international humanitarian law? Have they promoted reconciliation? Have they created, or should they even be claiming to create an official historical record? And are they providing closure or rather are they re-traumatising victims and their communities? In sum, do they run the risk of watering down further the already weak tonic marketed under the brand: ‘international criminal justice’, such that every tribunal should carry a health warning on its label?

I have no personal axe to grind here. My experience has been better than that of most defence counsel. The two trials in which I have participated in The Hague resulted in acquittals of two out of three defendants in each case. Since only 10 per cent (11 out of 114 who have stood trial) have been acquitted, our 60 per cent rate stands in marked contrast to the rest. The judges in front of whom I have appeared have been notable for their erudition, courtesy and grasp of law and facts. To put it politely, this has not always been the experience of other colleagues in Arusha or The Hague.

II.1 Restoring and Maintaining Peace

Fifteen years after the horrors in Rwanda and almost a decade after the end of the conflict in Kosovo, relative peace has been restored and maintained within the areas of jurisdiction of the respective tribunals. However, the ongoing nightmare of the DRC, teeming with arms and armies from within and from neighbours without, including Rwanda, serves as a humbling reminder of the limitations of international humanitarian law. Recent rumblings in Kosovo remind us that if individuals are not held accountable for the appalling crimes perpetrated in the former Yugoslavia, then whole ethnic and religious groups will be branded as criminal. History shows that clinging to feelings of ‘collective responsibility’ easily degenerates into resentment, hatred and frustration and inevitably leads to further violence and new crimes.

As the ICTY and ICTR begin to wind down, it would be churlish not to acknowledge that relative peace prevails. A Serbian war crimes court has been established by the Serbian Parliament to try those accused of war crimes within Serbia, Bosnia and Croatia between 1992 and 1995. In Rwanda, the Gacaca Courts were set up in 2002 to administer traditional restorative justice and deal with the massive backlog in war crimes cases. Reliable and up-to-date figures are hard to ascertain and international observers veer from extreme enthusiasm to disillusioned pessimism in assessing their prospects for success. In both regions, where systems of justice were destroyed by war, these developments offer an important potential contribution to restoring and maintaining peace.

II.2 Promoting Reconciliation

A. Justice vs. History

The ICTY and ICTR in general follow Albie Sachs’s ‘microscopic’ quest for truth. They prosecute individuals for individual crimes. They call victims and witnesses to testify. They use forensic scientific analysis and they profess to apply international fair trial standards including proof beyond reasonable doubt. In these respects they differ little from national courts.

Tribunals tend to get into trouble, however, when they stray from microscopic or forensic truth. This happens most obviously where judges are seduced by the momentous historic nature of the events with which they are dealing into playing the role of amateur historians. Trial judgments are rarely good places to start looking for accurate historical records. Both the trials of Charles I and of the Regicides tell us a great deal about the popular prejudices of the times. Both aim to set the historical record straight for posterity. But all posterity can truly read there is the record of justice twice stretched on the rack to produce opposing political results. Professor David Paciocco at the University of Ottawa has warned of the special dangers arising in trials dealing with the historic events in Rwanda:

‘To begin with, there is an inherent risk of prejudgment. International criminal trials invariably turn on the interpretation of historical events that are already believed to be understood. If the decisions of a tribunal do not conform to those expectations, the credibility of the tribunal can be compromised. Yet if a tribunal allows such expectations to influence outcomes, the law itself is compromised. Indeed, it is defeated and undermined.’

History and justice come into starkest conflict in the field of ‘expert’ testimony. The Office of the Prosecutor (OTP) in both jurisdictions seeks to get around problems in investigating past abuses by calling human rights researchers, historians, sociologists and others who claim to have reliable ‘evidence’. Such witnesses are often less than impartial: they have reputations and theses to defend; their accounts are often selective and anecdotal, relying on hearsay.

Different judges have taken different approaches to such expertise. In our first ICTY case, reports and live testimony from Human Rights Watch (HRW) were admitted. In our second ICTY case, however, the Tribunal robustly refused to allow the prosecution to put HRW reports in evidence or to call their authors on the grounds that these reports did not assist their forensic fact-finding. On the record to date, however, it is too much to hope that other tribunals will follow this more restrictive approach.

There is a sense of ‘damned if you do, damned if you don’t’ about the approach of tribunals to historical issues. If they focus too much on the individual, in trials such as those of Slobodan Milosevic or the Vichy official Maurice Papon then, as one commentator has written: ‘War crimes tribunals skew the historical picture, absolving the broader mass of silent, willing executioners’.

On the other side, the attempt to produce a complete historical record may be at odds with the principle of individual culpability. As Jenia Iontcheva Turner has written: ‘Evidence of mass complicity, foreign involvement, or even the true origins of the conflict may not be relevant to these charges and may even be prejudicial’. In some cases, unchallenged witnesses are called, not because the testimony is in dispute and not even because it relates directly to the accused on trial. Atrocity after atrocity is paraded in a way that risks tainting the judicial process, precisely because horrific things happened for which nobody has been or will be made amenable. In the trial of Charles Taylor, Courtenay Griffiths QC has charged that the prosecutor has led evidence unlinked to his client for the sole purpose of tearing at the Tribunal’s heartstrings.

B. Politically Skewed Prosecutions

ICTY former prosecutor Carla Del Ponte’s irrepressible biases have been evident from her public pronouncements. When the conduct of prosecutions, whether in The Hague, Arusha or elsewhere, is subject to political influence, the entire system of justice is threatened.

When Milosevic first came to trial, he asserted vociferously that he was a victim of victor’s justice. He demanded that the OTP disprove his allegation by prosecuting former members of the Kosovan Liberation Army (KLA). OTP officials were duly dispatched to Pristina to demand the transfer to The Hague of Fatmir Limaj and his two co-accused. Until that time, prosecutors in Kosovo had been contemplating charging them in Pristina but saw no reason to transfer the case to The Hague.

It is true that the mere appearance of one-sided justice potentially undermines prospects for reconciliation. However, Prosecutor Del Ponte was wrong to give in to Milosevic so cravenly. If there was a case to answer against Limaj (who was subsequently acquitted before the ICTY) and if UNMIK was satisfied it could do the job adequately in Pristina, then his transfer to The Hague cannot have been to serve justice but instead to satisfy a purely political agenda. Carla Del Ponte came in for criticism in Arusha too, where the ICTR has become a byword for victors’ justice. After his retirement, ICTR Judge Jakov Ostrovsky said:

‘In one of her public statements, Carla del Ponte said that the prosecution intends also to deal with Tutsi crimes against Hutu... but no such cases have yet been submitted for the court's consideration. Not surprisingly, Hutu refugees see the international tribunal as a kind of a “trial by victors”.’

The approach adopted by some members in Del Ponte’s ICTY office has also muddied the historical record. In the Limaj case, one afternoon our prosecutor called a Serb police officer, asking the Tribunal to rely on him as a truth-teller. That same morning, however, a different prosecutor had accused that same witness of lying when he testified for the defence in the Milosevic case. The Limaj prosecutor told the Trial Chamber he hadn’t known the witness had been in court the same morning and he wasn’t aware of any conflict in his office’s attitudes towards the witness. This speaks to an OTP that is at best blind or indifferent to certain of its own shortcomings.

In summary, we have to acknowledge that the balance between justice and history is extremely delicate. As a professional historian, Richard Evans, Cambridge Professor of Modern History, is troubled by the ‘judicialisation of history’ in which complex social conditions get reduced to legal categories of ‘victim’, ‘perpetrator’ and ‘bystander’, obstructing rather than aiding historical understanding. As a defence lawyer, David Paciocco reaches the pithy conclusion that: ‘History and justice cannot be written at the same time, with the same pen, without distorting both’.

II.3 Victims and ‘Closure’

One claim made for the tribunals is that they provide ‘closure’ for injured individuals and communities; what the French historian, Emmanuel Le Roy Ladurie has called ‘an enormous national psychodrama, psychotherapy on a national scale’. Any such grandiose claim for the ICTY would be frankly fatuous.

Experience indicates that many victims and their families have found testifying to be a bewildering ordeal and that reliving events from a decade or earlier has sometimes been more traumatic than cathartic. Many citizens of Derry, after testifying before the Bloody Sunday Tribunal, also reported a sense of re-victimisation, as if they were being themselves blamed in some degree for the massacre committed by members of the British Army’s parachute regiment.

‘Closure’ is a suspect term, certainly when applied to a judicial process. The most that can be reasonably claimed – itself no small achievement – is that in the absence of any reliable mechanism for securing fair trials within the territory where gross violations of international humanitarian law have occurred, the creation of ad hoc tribunals has created a breathing space to allow the gradual restructuring of domestic justice systems. Key political and military figures have been removed from the stage to allow new actors to step forward. The possibility for a fresh start has thus been created.

III. Ad Hoc Tribunals and the Right to Fair Trial

International human rights law lays down certain requirements for a trial to qualify as ‘fair’. Among these are: the presumption of innocence and a number of rights broadly summed up as ‘equality of arms’ on the notion that neither side in a criminal trial should enjoy an unfair advantage.

III. 1 (In)Equality of Arms

If the rights of the defendant are to be respected, the role of the defence lawyer must be respected. Academic literature has largely overlooked the experiences of the defence in international criminal trials. However, the history of the defence function before the ICTY and ICTR shows that defence lawyers were never originally perceived as integral to the process of delivering international criminal justice. Counsel for the accused have had to battle constantly against being treated with suspicion and hostility. This atmosphere pervades both the most serious and the most apparently trivial aspects.

In the early years of the ICTY, defence lawyers were barred from the Tribunal canteen, where judges ate lunch alongside prosecutors.
The tribunals submit annual reports to the UN. Reports go from the Judges, from the Registry and from the Office of the Prosecutor. However, when the president of the Association of Defence Counsel at the ICTY asked for his report to be included he was told this was not part of the function. He submitted his report; no acknowledgement was received from New York.
At the ICTR, when two Rwandan Government sponsored agencies claimed without evidence that defence investigators were intimidating witnesses, the Tribunal suspended 14 investigators and set up a joint commission of inquiry with the Rwandan Government. This was abandoned after the Rwandan Government demanded that the remit of the inquiry be expanded to investigate UN appointees to the ICTR. The investigators were reinstated without apology either for the attacks on their character or for the disruption to the defence.
The right of access to clients is substantially undermined when our legally qualified legal assistants are not permitted to see defendants unless accompanied by trial counsel, on the grounds that the former do not enjoy lawyer/client privilege. This imposes unjustifiable restrictions on the right of defence.

Despite these and other disincentives to undertaking the representation of defendants before the ad hoc tribunals, it is worth recording the surprisingly large number of highly qualified and experienced practitioners who have left more lucrative practices, particularly in North America and Western Europe, to work at the ICTY and ICTR. They have mainly been motivated by concern for fair trial procedures and the right to representation of the most unpopular defendants, rather than out of financial self interest (quite the reverse) or out of political sympathy with their clients.

III. 2 Procedural Defects

A. Disclosure/Discovery

The requirement that an accused person have adequate time and facilities to prepare his defence goes together with his right to know the nature and extent of the case against him. Generally speaking, before a criminal trial begins in the United States or the United Kingdom, the defence will have been served with all the statements of every prospective witness, together with a complete set of each exhibit on which the prosecution will seek to rely. In complex trials, this material will be provided months in advance and prosecutors are not permitted to spring new evidence on the defence on the eve of, or during the trial itself. Where evidence becomes available late in the day, the defence is given time to analyse it and conduct follow-up investigations if necessary.

In The Hague it is routine for pre-trial documentation to be excessively redacted. Redactions are justified to protect the identities of certain witnesses but experience shows these redactions go to absurd lengths. The greatest problems occur during trial itself. Although the OTP has been preparing these cases for several years, documents are routinely given to the defence the night before the witness is due to testify; not just one or two documents but whole reams at a time. And we are expected to just get on with it and not inconvenience the Trial Chamber by requesting adjournments. Failure to provide translations of documents into the language of the defendant or his counsel presents further problems, making it difficult, if not impossible, to take timely instructions.

It is hard to resist the implication that the comparatively well-staffed OTP frequently and purposefully delays release of documents in order to disadvantage the defence. By its nature, this allegation is almost impossible to prove but I have yet to meet a defence lawyer who would disagree with it.

B. What is ‘Evidence’?

To know the case you have to meet, you need to know what the Trial Chamber will consider to be evidence. In jury trials in North America and the UK this task is simplified because judges routinely rule on the admissibility of evidence, excluding what is prejudicial and non-probative and pronouncing on whether or not a statement is hearsay.

Tribunal rules of procedure lean towards inclusion, rather than exclusion, with judges regularly agreeing to let in documents and oral testimony and decide later what, if any, weight to give them. In the end, with no guidance from the Chamber it is hard to know what will actually be considered evidence in the case.

Another problem cited by defence lawyers in both tribunals is the tendency of judges to ‘re-credit’ discredited witnesses. Standard cross-examination techniques tend to attack a witness’s reliability by pointing to prior inconsistent statements in contrast with the testimony given in court. This technique of ‘discrediting’ witnesses frequently receives short shrift from civil code judges who all too readily re-credit a witness who claims, for example, that his original statement wasn’t under oath so he didn’t take it so seriously.

C. The ‘Completion Strategy’ and Rule 92bis, 92ter and 92quater.

Both tribunals are required to wind up business by the end of the decade. This has led to them adopting procedures to speed up trials. Rule 92bis of the ICTY permits a Trial Chamber to dispense with the attendance of a witness in person and instead admit evidence in the form of a written statement, when it goes to proof of a matter other than the acts and conduct of the accused.

Under Rule 92ter a witness’s statement may be admitted, provided he/she is available for cross-examination and Rule 92quater permits the Trial Chamber to admit the unsworn statement of a witness who is no longer available by reason of death or incapacity.

Both tribunals increasingly rely on written evidence obtained originally in the form of unsworn statements which are converted, sometimes many years later, by the mere addition of the witness’s certification. Civil code judges are used to receiving and relying on statements recorded before examining magistrates who conduct thorough and impartial investigations. However, unsworn statements that reach the tribunals are taken by investigators who frequently ignore their own rules of procedure, put words into the mouths of witnesses and are far from objective in their investigations. They are not akin to examining magistrates but instead are creatures of the Prosecutor.

Defence lawyers are increasingly concerned that these procedures are being used to circumvent the right of cross-examination. To slip written evidence of this dubious calibre into the record risks undermining the quality of testimony and subverts the rights of the accused. There is a simple solution: to make video- or audio-recordings of the statementtaking process and make these available to the defence upon authorisation by the Trial Chamber. The OTP refuses to adopt this course.

IV. What Price International Criminal Law? Some Tentative Conclusions and Recommendations

If the price we have to pay for an international criminal law system results in the perversion of international fair trial standards, then the US Government would have been right in refusing to participate in the International Criminal Court. The jurisprudence of the ad hoc tribunals will be adopted and adapted by the ICC. It is that concern that has led many of us to enter the tribunal arena and to make the demand for the most exacting fair trial standards. The history of Britain and Ireland has shown that the right to fair trial faces its greatest challenge when the media portray the defendant as a monster. Unless we demand fairness from the system, the worst consequences result for society in general, not just the ‘monster’ on trial: detention without charge or trial; legalised torture; return of the death penalty; extraordinary rendition.

International criminal law is almost certainly here to stay, notwithstanding the US Government’s concerns about the ICC, which have less to do with fair trial standards than with overweening hegemonic hubris. Despite many criticisms of the ICTY and ICTR, there is, of course, no perfect system of international criminal justice. However, it is important to draw lessons from the experiences of a number of defence lawyers and it is time to suggest approaches that should be adopted in the quest for a greater degree of justice. I believe judges and tribunals should:

Resist as far as possible the temptation to trespass on the terrain of the historian and sociologist;
Adopt a more evenly balanced attitude to the advocates who appear before them, in particular applying the principles that:

A prosecutor is no more worthy of trust and respect because he is employed by the same employer as the judge;
Defence lawyers and their legal teams are not to be confused or equated with their clients;

Guard against any appearance of ‘consumer-oriented justice’, especially the prosecutorial practice of horse-trading defendants to appease critical governmental authorities;
Take cognisance of the potential for the political manipulation of evidence by parties outside the control of the tribunal;
Condemn unequivocally any attempt by parties to urge that any part of their decisions be influenced by political considerations;
Control more rigorously the prosecutorial practice of failing to disclose materials in a timely and appropriate fashion;
Exclude statements that have not been obtained fairly and objectively (by use of video- or audio-recordings which should be preserved and made available to the defence upon authorisation by the Trial Chamber).

Is there a continuing basis for creating further such tribunals in future? Perhaps the most dubious use of this system is the so-called Hariri Tribunal, the Special Tribunal for Lebanon. In that case, a single attack on a single human being (a former prime minister), resulted in the deaths of 22 other individuals in February 2005. This is the first time that the UN has created an international criminal court to try a crime committed against a specific person. However appalling the crime and however important the mission of bringing justice to the Lebanon, it appears highly questionable whether this is the right way to go about it.

Hands-on experience of international criminal law leaves me a constructive critic, rather than an opponent, of its practice. Like many, I see pitfalls and problems ahead for the ICC, not the least of which is the appearance of ‘white man’s justice’ as it heads for the heart of Africa.

I started out by referring to ubuntu and to the outstanding achievements of a number of African jurists. Truth and reconciliation are elusive concepts at best. Critics of the South African TRC say it has claimed too much success and failed to acknowledge its limitations. But the attraction of ubuntu is not that it claims to offer a better system of justice; it is that it offers a different understanding of what justice means to the community at large.

If lawyers have any role to play in promoting reconciliation for societies torn by gross violations of international humanitarian law, we have to start with a little humility, acknowledging that Western European and North American concepts of justice are not one-size-fits-all. At best, international criminal law has so far succeeded only partially in delivering truth. Courts of law risk deluding themselves and losing the respect of the communities they claim to serve if they claim tribunals can create inter-ethnic and intra-national reconciliation. We need both Albie Sachs’s forensic truth to do justice to individuals as well as ubuntu to enable nations and communities to rebuild themselves in mutual trust. Ubuntu is not delivered from on high by robed judges; it comes from the grassroots, from each of us recognising that each person is a person through other persons.

Richard Harvey is a barrister at Garden Court Chambers and a member of the Haldane executive committee

This article can be found in the print edition of Socialist Lawyer number 50, September 2008.