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Trying cases and testing courts: Building the International Rule of Law
At a time when war, terror and ethnic violence dominate the headlines, it is worth pointing to concrete evidence that -- one day -- the international rule of law may prevail. The world is witnessing two events that, in our opinion, may be on a par with the Nuremberg trials. The first is the trial of Slobodan Milosevic. The second is the creation of a permanent International Criminal Court (ICC), which will be in force when 60 countries will have ratified the Rome treaty. The 60th ratification is expected to happen this week at the United Nations on April 11,2002.
Both events confirm the emergence of an international criminal justice system to deal with the worst cases of genocide and war crimes - using courts rather than war to bring the perpetrators to justice. It is fitting, and healthy, that both the Milosevic trial and the ICC are stirring up some heated controversy. Much the same thing happened with the Nuremberg trials in the late 1940s - with some critics demanding "rough justice" for the Nazis and others complaining about show trials and "victors' justice."
We are defense attorneys - the ones who ensure that all who are accused, regardless of their public perception, receive a fair trial. To be precise, we fight to ensure that those charged with crimes have the right to a full and aggressive defense which means to hear and test the prosecution's evidence and, perhaps, to tell their story in their own way. We rely on the ability of jurists and juries to actually presume our clients to be innocent ? whatever the conventional wisdom, whatever the
majority view.
One of the architects of Nuremberg, US Supreme Court Justice Robert Jackson, stated our ideal of criminal justice succinctly in April 1945, when most people (including Winston Churchill) wanted summary execution of the Nazi leaders. He said:
"Courts try cases but cases also try courts ? You must put no man on trial before anything that is called a court ?. under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty?." (emphasis added)
Judges and prosecutors focus on trying the case. The role of the defense is not just to defend the accused but to ensure that "the case tries the court." This is precisely what Mr. Milosevic is doing by launching his frontal attack on the political and moral legitimacy of the International Criminal Tribunal for the former Yugoslavia (ICTY). However much people disagree with his view, it is vital that he has the opportunity to challenge the court and present his story if he so desires.
Make no mistake about it, the ICTY is being "tried" by the Milosevic case. It will meet the test only by ensuring that its proceedings are perceived by the world as fair and impartial. By doing this is case after case, it will be embraced by the world as a true hall of justice. In our view, the "worst case" is not the acquittal of Milosevic but - rather - a series of easy victories that undermine the strength and legitimacy of the system.
In this high-tech age, we believe passionately that criminal justice is not a mechanical or "engineered" process. Rather, true justice emerges from a very human, often painful process. The process of debate, controversy and confrontation between different versions of the story surrounding a crime.
Debate and controversy also surround the other big events - the creation of the International Criminal Court (ICC). The United States, in particular the Pentagon, objects to the court and is charging - before a single case has been heard - that this court will inevitably be used for political purposes, mainly against US military personnel. Happily, more that 60 other countries, including all of the NATO allies of the United States hold a very different opinion. Their support for the ICC is
unflinching. Canada is a proud leader of this broad coalition of like-minded countries.
The ICC can become a vitally important global institution. The policy challenge is to ensure that it is independent, impartial and that it rigorously respects due process and fair trial procedure. This is the goal of many lawyers in the international defense community including the International Criminal Defense Attorneys Association, based in Montreal
and the National Association of Criminal Defense Lawyers, based in Washington D.C.
Our members have defended cases before the ICTY and worked hard to introduce fair-trial guarantees into the rules governing the ICC. We believe the ICC and other international courts can be perceived as providers of true justice and not as kangaroo courts. They can do this by meeting three tests.
The first test is that fair trial procedure be enshrined in law. Many agree that the ICC meets this test. Accused persons are presumed innocent. They have the right to counsel of choice and the right to assignment of counsel for indigent defendants. They have the right to remain silent without adverse inference. The prosecution in these cases always has the burden of proof and guilt must be proven by the highest legal standard, that is, by proof beyond a reasonable doubt. Procedural safeguards are also in place. The accused have the right to examine witnesses and to see documentary and physical evidence before the trial. They may not be tried in absentia and they have the right to appeal an adverse decision. None of the international criminal tribunals sanctioned by the United Nation permit the death penalty, as opposed to the war time criminal tribunals sanctioned by the United States.
The second test is that defense lawyers be given adequate resources - so that paper guarantees can be translated into true "equality of arms" in court. It is essential that the three pillars of criminal justice: the judiciary, the defense and the prosecution, each be equally organized, funded and valued. Neglecting one pillar in favor of another will seriously weaken the whole system.
Unfortunately, the ICC has not yet met this test. Like the ICTY and ICTR, the governing statute provides for an independent judiciary and prosecutor but does not guarantee a strong, independent legal profession. Lawyers
from around the world are working hard to remedy this architectural defect. We know that a strong defense pillar is required to ensure that the process is balanced, fair and that convictions are not being rubber stamped.
The third test is that each trial be conducted fairly through the combined efforts of judges, prosecutors and the defense. As Justice Jackson suggested, this test must be met case by case. It is always there.
The very existence of the International Criminal Court and the ad hoc criminal tribunals which have and will address events in Yugoslavia, Rwanda, Sierra Leone, Cambodia, East Timor and, perhaps, Afghanistan throws light on tragic human events that need to be aired in a dignified, restrained, orderly and fair manner. These tribunals will serve as the blueprints for struggling countries whose judicial systems are rising out of despotic neglect. Those who value the protection of human rights need to engage in the process of establishing a fair and viable International Criminal Court where procedural rules guarantee that the world will perceive the judicial process as fair and even handed.
War and terror threaten world stability. We are naturally tempted to use criminal justice as a weapon. But the rule of law is not the same as war. Summary convictions and executions may be needed to deal with enemies on the field of battle, but not for criminal suspects in a court of law. Giving them the right to a fair trial and a vigorous defense defines the "international rule of law."
Elise Groulx, Attorney and President of
the International Criminal Defense Attorneys Association (ICDAA)
| The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL’s 10,000-plus direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling more than 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system. |
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