Pascal Chenivesse & Christopher J Piranio. Cambridge Review of International Affairs. Volume 24, Issue 3. September 2011.
Following the Second World War, evolving notions of human rights have been met by evolving understandings of rights that should be afforded the accused in judicial processes. The following considers this evolution in proceedings stretching from Nuremberg to The Hague, as a struggle between forces that have given birth to each successive stage in international criminal justice, as well as of forces that have grounded rights of defence as advancing the cause of justice itself. Indeed, while notions of ‘right to fair trial’ and ‘equality of arms’ suffer from conflicted understandings over what consists in justice, and from conflicting interests over what powers should be afforded parties in the judicial process, this article suggests that the primacy afforded rights of the accused reflects, most evidently in the International Criminal Court, the growing acceptance of liberal democratic notions that justice is most clearly founded not on the treatment of victims, but on the treatment afforded those who mistreat others.
Deeply engrained in the public consciousness of peoples at least rhetorically, if not emotively, are certain protections that consist in judicial fairness. And a growing understanding among diverse peoples is the general notion that our commitment to justice is most evident in the treatment we afford those who mistreat us. The principles of fair trial are as familiar as they are fundamental, as articulated from the age of reason to the present:
nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. (Amendment V of The Bill of Rights of the United States Constitution 1791)
Every individual shall be entitled to equal protection of the law….No one may be deprived of his freedom except for reasons and conditions previously laid down by law….Every individual shall have the right…to an appeal to competent national organs against acts of violating his fundamental rights…be presumed innocent until proved guilty…to defence, including the right to be defended by counsel of his choice…be tried within a reasonable time by an impartial court or tribunal. (Articles 3, 6 and 7 of the African [Banjul] Charter on Human and Peoples’ Rights 1981 adopted/1986 enforced)
Yet however central these ideas may be to international human rights and humanitarian covenants, institutions and culture, such understandings have developed over a tortuous path to a plateau that’s anything but certain.
This article considers the assumption of the rather utopian quest to strike a reasonable balance between rights of the accused and rights of victims in the process of prosecuting the worst crimes known to humanity. In the course of this legal and historical analysis, it will be suggested that the rights afforded the accused relative to victims, and prosecution, is as much a species of the social forces at play in the consensus we realize in founding each successive international court, as is our common, gradual understanding across cultures of what consists in justice itself. This is clear when we consider the forces, political and intellectual, which have given birth to and shape to the international community’s commitment to ‘right to fair trial’ and associated principles like ‘equality of arms’.
International Standards of ‘Right to Fair Trial’
The principle, or rather legal aspiration, of ‘right to fair trial’ first became flesh in international criminal law over the course of proceedings in Nuremberg (Nürnberg) where it was held in one of the tribunals that ‘prosecutors and judges involved in a trial lacking the fundamental guarantees of fairness could be held responsible for crimes against humanity’ (Schabas, 501). Since then, it has been reinforced by the United Nations (UN) as ‘axiomatic’, in the words of a report of UN Secretary-General Boutros Boutros-Ghali, ‘that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings’. But the road from Nuremberg to The Hague has been fraught with numerous, and on occasion rather considerable, challenges over the balance of rights and protections that should be afforded parties in international judicial processes; challenges we now find in a never-ending seesaw over rights and protections afforded defence, prosecution and uniquely victims before the International Criminal Court (ICC) and its sister tribunals, each court bearing a peculiar commitment to and understanding of that principle.
Indeed both the central importance and highly contentious quality of this principle is evident in the founding instrument of the ICC, the ‘Rome Statute’, whose drafters underscored a commitment to due process by incorporating standards from other international bodies. These standards include Common Article 3(d) of the 1949 Geneva Conventions, which prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’. Article 11 of the Universal Declaration of Human Rights further directs that ‘[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence’. And article 11 guarantees the principle of nullum crimen sine lege, that ‘[n]o one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.’
These standards have since been endorsed and elaborated by the United Nations, notably in the aforementioned report of the UN Secretary-General which cited article 14 of the 1966 International Covenant on Civil and Political Rights (ICCPR) as one of the primary expressions of ‘fair trial’ principles for international criminal tribunals. Pursuant to article 14, ‘[a]ll persons shall be equal before’ the law and all persons shall ‘be presumed innocent until proved guilty’. Moreover, in the determination of any criminal charge, ‘everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’ and everyone shall be entitled to several ‘minimum guarantees, in full equality’. These include, inter alia, the rights to be informed ‘promptly and in detail in a language in which he understands of the nature and cause of the charge against him’, to ‘have adequate time and facilities for the preparation of his defence’, and to ‘be tried without undue delay’. Article 14 further directs that everyone has the right to ‘be tried in his presence, and to defend himself in person or through legal assistance of his own choosing’, and ‘to have legal assistance assigned to him’ and without payment where the interests of justice so require. Similarly he shall enjoy ‘the free assistance of an interpreter if he cannot understand or speak the language used in court’. Defence shall also be entitled ‘[t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’. Where a person may not ‘be compelled to testify against himself or to confess guilt’, a person ‘convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’, and shall have a right to compensation where a miscarriage of justice has taken place. Critically the principle of double jeopardy, of non (ne) bis in idem, is guaranteed in that ‘[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’.
But while these together comprise the veritable gold standard of rights of defence and other notions of fair trial, a wide variation of commitment to its principles can be found among tribunals stretching from Nuremberg to The Hague owing to the peculiar social, political and cultural forces that have given rise to each. As more nations have come to endorse each attempt at bringing to book history’s worst offenders, each attempt has invited greater challenges to central notions like ‘equality of arms’. Specifically it seems any peculiar commitment to and articulation of ‘right to fair trial’ displays an assumption of such liberal democratic notions—given the hegemony of liberal democratic states in international legal processes, quite arguably—as much as reflects the challenges of incorporating ever larger numbers of diverse peoples within the international legal fold. Thus, a commitment to ‘right to fair trial’ is considered, on this view, with respect to the consensus underlying each body that gives life to its principles. But also central to this view are the motivations of state actors whose consent gives rise to juridical experiment like Nuremberg and The Hague; actors as much interested in, perhaps, protecting themselves from international prosecution, as interested in, at least, appearing reasonable to international concerns over rights and justice.
In any case these issues come to a head within the framework of the ICC. Yet it remains to be seen whether stasis has been reached over conflicting notions of ‘fair trial’ and related notions or whether the scales of justice will again tilt in favour of prosecution, if not of victims. As such it remains to be seen whether the Quixotic experiment that is the ICC is a reflection of a growing understanding and commitment to human rights and international justice, or is rather a war by proxy among members of the human rights community who pine for justice for victims, and state leaders who fear undo incursions over state sovereignty and their very person.
The First International Criminal Jurisdictions, a Limited Consensus Over ‘Right to Fair Trial’
Rights of Defence before the Nuremberg and Tokyo Tribunals
An evolving consensus over ‘right to fair trial’ began, at least in the international case, with the efforts of Allied forces to see the fascist leaders of Germany and Japan tried before a court of international law. However, almost from their inception, the tribunals were fraught with severe jurisprudential concerns flowing from the public pressure to bring to expedient end this last chapter of the Second World War, and from the challenges of trying persons for the first time under international criminal standards. The inevitable consequence was few protections offered the accused, despite some rhetoric and provisions to the contrary. At the same time these tribunals represent a monumental attempt at holding persons to international rather than national scrutiny, which, despite their difficulties, first brought to international scrutiny questions of rights and duties owed to victims and victimizers.
This is clear when we consider the tribunals in detail. The Charter of the International Military Tribunal at Nuremberg (Nuremberg Charter, 1945) established the first principles of international criminal justice in the trial of Nazi leaders, months before the Charter of the International Military Tribunal for the Far East (Tokyo Charter, 1946) provided the same in the trial of leaders of the Empire of Japan. Article 6 of the Nuremberg Charter importantly specified individual liability for a trilogy of international crimes—namely ‘crimes against peace’, ‘war crimes’ and ‘crimes against humanity’—whilst article 7 innovatively directed that ‘[t]he official position of defendants, whether as Head of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment’. Yet one of the most significant lessons to be drawn from the tribunals was the novel notion ‘that criminal responsibility does not necessarily depend on national legal statutes’ (Tomuschat). At the same time, other respects the tribunals were far from revolutionary and indeed retrograde in their arguable practice of retroactive application of law. By seemingly applying ex post facto laws that violate the well founded principle of nullum crimen sine lege, they indulged in what may be regarded as some sort of ‘victor’s justice’.
However despite this, the Nuremberg Trials offered many guarantees for the accused, sometimes backed by passionate plea. Robert Jackson’s opening words for the prosecution were indicative of the concern for defence, where he forcefully stated ‘[we] must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well’. Nevertheless protections for defence remained problematic owing to a lax or ambivalent commitment to its principles or to an incompetent administration of its provisions. As Salvatore Zappalà suggests,
defendants had to suffer many problems in the implementation of those provisions and in the concrete administration of the rules of evidence. In this respect it was claimed that the rules generally granted a fair trial but their administration did not. This assessment, however, seems a trifle too generous: it is here submitted that the provisions governing the activities of the post-World War II international tribunals had many flaws and the unfairness of these trials was not merely due to a bad implementation of the rules. (Zappalà, 1321)
On the other hand, article 16 of the Nuremberg Charter enumerated several valuable guarantees, among which that an indictment shall indicate the details of charges brought against accused persons. Additional guarantees included rights of the accused to question witnesses and tender evidence during trial, to have access to a legal representative of his choosing, to have access to all relevant documents of trial in a language that he understands, and to have sufficient time to prepare his defence. To this day these rights comprise the basic charter of rights for defence, a notable achievement given that the charters for Nuremberg and Tokyo were drafted before adoption of the first international covenants for human rights (including the Universal Declaration of Human Rights 1948).
But other safeguards were far below contemporary international standards. In particular the Nuremberg Charter allowed trials of the accused in absentia without specifying whether review of judgments were possible, and whilst denying altogether the right of appeal for convicted persons. As well, the question of disclosure of evidence was left ambiguous. Pursuant to article 19 of the Nuremberg Charter, ‘[t]he Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value’. As such it may well seem that a ‘non-technical procedure’ does not advance rights to a fair trial, as technical aspects of a procedure typically provide parties with substantial guarantees. Furthermore, article 21 provided that
[t]he Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various Allied countries for the investigation of war crimes, and the records and findings of military or other Tribunals of any of the United Nations.
Potentially, ‘facts of common knowledge’ may be vast and indefinite, making scrutiny of putative ‘facts’ as much necessary as was lacking in the tribunal. And though government documents were subject to judicial review, it seems few safeguards were provided against a stamp of legitimacy of the content of such documents that may be far from objective and impartial, especially during wartime.
Quite simply it seems that the imbalance of rights afforded parties in this process are explained, in large part, by the tribunals’ place in history as the formal end to the worst conflict known to humanity. Indeed it well seems that the weak protections afforded the accused are a consequence of the rather few victorious nations whose consent gave rise to the tribunals’ authority, and by a war weary public among such nations who sought an expeditious, if not vindictive, end to this most horrific episode. On the other hand, the tribunals opened the possibility of fairly trying persons against a body of international law, and lay the foundation for debate about the appropriate balance between administration of justice and rights of the accused. In the view of some commentators, their contribution to international criminal law is not diminished by ‘the victor’s justice critique that their limited jurisdiction inevitably attracted’ (Kreß, 143). Whether the retroactive application of law they seemed to embody, and atrocities of Allied powers they failed to prosecute, constituted a fatally missed opportunity, their flaws inevitably gave way to a revolution in thinking and institution-building over international criminal justice.
Rights of Defence before the UN Ad Hoc Tribunals
Following Nuremberg and Tokyo, all attempts at creating an international criminal court failed until establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY 1993) and International Criminal Tribunal for Rwanda (ICTR 1994). The creation of such ‘ad hoc’ tribunals—whilst armed conflict continued to rage in Central Africa and the Balkans—allayed fears that international justice is a victor’s justice aimed at vengeance and rather encouraged a view of international judicial institutions as a precious means in which to restore peace. By displaying a lack of discrimination between victors and vanquished, the ad hoc tribunals constituted a major advance from Nuremberg and Tokyo in the wide jurisdiction they enjoyed over nationals of all parties in each conflict (see Kreß, 143).
The relative gains in legitimacy and relative protections afforded the accused we find in the ICTY and ICTR reflect their founding not by the victors of conflict, but by the international community, through the UN Security Council, amidst a culture of human rights that has widely taken root since inception of the first tribunals in Nuremberg and Tokyo. This, our ‘human rights culture’, in the words of Richard Rorty, now lends authority to many principles many considered contentious before the Second World War, and central among which, rights of defence that have since been codified by the ICCPR (adopted by the UN General Assembly in 1966 and entered into force in 1976) and European Convention on Human Rights (drafted in 1950 by the Council of Europe and entered into force in 1953). Although these instruments are only compulsory for state parties to the conventions, many of their principles have reached a status of international law and custom, if not enjoy a more widespread and personal level of morality (see Zappalà, 1327-1328).
Specifically we can see the pervasiveness of our ‘human rights culture’ in a number of safeguards now promised the accused. Procedures in absentia are notably excluded from the tribunals, which in the estimation of some is a radical departure from international courts that typically consider this procedure not contrary to the rights of a fair trial under certain conditions (Tavernier, 3-22). As well, article 21 of the ICTY Statute and article 20 of the ICTR Statute (and article 17 of the Statute of the Special Tribunal for Sierra Leone) are manifestly inspired by article 14 of the ICCPR, which embrace the central principles of ‘right to fair trial’, namely the right to a ‘fair and public hearing’ and to be ‘presumed innocent until proved guilty’. Similarly, article 21 of the ICTY Statute provides several minimum guarantees such as the right to be ‘informed promptly and in detail’ of the charge against him, ‘to have adequate time and facilities for the preparation of his defence’ to be ‘tried without undue delay’, to ‘legal assistance of his own choosing’ and ‘to have legal assistance assigned’ without payment where the interest of justice so require, and the right to examine and cross-examine witnesses. And perhaps most critically we can see statutes of the ICTY and ICTR introducing and defining for the first time in an international criminal context, rights to appellate and review proceedings (articles 25-26 of the ICTY Statute, articles 24-25 of the ICTR Statute).
Accused persons under the ICTY may choose to defend themselves, a choice assumed by defendants Slobodan Miloševic and Vojislav Šešelj. However, provisions for legal assistance have constituted a particular and substantial evolution in thinking about international criminal justice. This assistance may be authorized for free where the accused is without means to pay, and where the interests of justice so require. Here it seems necessary to specify that ‘equality of arms’ does not imply ‘equality of resources’. In general, equality of arms implies that each party must have a reasonable opportunity to present its case under conditions which do not place it at a substantial disadvantage vis-à-vis its opponent. However, the ICTY and the ICTR have progressively increased the financial means offered to indigent parties, with the Special Tribunal for Sierra Leone striving to ensure an ‘equality of resources’ between defence and prosecution, and with the Registry of each court providing defence teams with co-counsel, investigators and interpreters. The impact of these provisions on rights to fair trial are obvious, with a majority of suspects in international criminal proceedings availing themselves to legal aid, evidence of both the high cost of defence and difficulty of courts in determining the financial means of suspects (see Zappalà, 1332).
On the other side of the ledger, such safeguards have been met by provisions that impinge on protections for the accused. Consider protections for victims and witnesses under article 22 of the ICTY Statute, that ‘[s]uch protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity’, which has limited rights of defence to access critical files. Consider, as well, the lack of time allowed counsel to prepare a defence, a recurrent problem for defence teams recounted by Xavier de Roux who intervened for the accused before the ICTY (de Roux, 125). Prosecution may prepare its case over several years and use similar evidence against several accused persons, given the connectedness between cases, whereas defence teams begin work after surrender of the accused. Nevertheless, cooperation between defence and prosecution over time-limits for disclosure of motions has lessened this problem. Other problems have arisen over the issue of anonymous witnesses (Klip, 267-295; Leigh, 235-238; Zappalà, 1334-1335) and disclosure of exculpatory evidence by the Prosecutor (Zappalà, 1333-1334). Even the power of ICTY judges has been controversial, such as to amend or modify the Rules of Procedure and Evidence, which may lead to confusion between judicial and legislative powers and may introduce an arbitrary element to proceedings, or give the impression that the rules of procedure are ‘tailor-made’ (de Roux, 121). Other commentators believe this prerogative has not generated inequality, but rather has allowed judges to progressively develop a ‘code of criminal procedure’ that has improved the fairness of proceedings overall (Ascensio, 133).
In general, provisions of the ad hoc tribunals have not only struck a new balance between rights of defence and administration of justice, but between adversarial and inquisitorial approaches to criminal justice (see generally Cassese, 366-377). Although the legitimacy of such tribunals has been hotly debated—concerning modalities of their creation or suspicions of retroactive justice, typically by suspects seeking impunity for their crimes—they have significantly reinforced rights of defence and have lent credibility, thereby, to the possibility of fairness in international criminal proceedings. This is most obvious in the ICTY’s Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (2002-2003), which, in submitting defence counsel to certain deontological rules, whilst offering protections for victims and witnesses, has led international justice to a new era, an era concerned as much about restorative as retributive justice (see, for example, rules 44-46 of the ICTY Rules of Procedure and Evidence).
The Permanent International Criminal Court, Toward a Global Consensus over ‘Right to Fair Trial’
The ad hoc tribunals served and continue to serve as a valuable source of inspiration for the founders of a permanent international criminal court. In the substantial protections offered the accused and unique protections offered victims and witnesses, they remain a lodestar for the permanent court as it wends its way in its own jurisprudence, and as it inspires the direction of justice systems in developing contexts.
But the challenges of reaching equilibrium over what we may regard as a justifiable balance of protections is ever-present. This is particularly so for the permanent court in the widest degree of independence, consensus and jurisdiction to which it aspires, qualities that take us well beyond the orbit of the four principle states allied against the war (Nuremberg and Tokyo Tribunals), or of the UN Security Council’s promotion of peace and justice in the former Yugoslavia and Rwanda (ICTY and ICTR). Where the early courts sought a particular level of support over a limited mandate, that is to say, the permanent court seeks a level of autonomy unique among international bodies and what may simply be regarded as a universal level of assent, jurisdiction and application. But this aspiration to universality also invites considerable, if not insurmountable, challenges of legitimacy in the view of defendants, victims, witnesses and state actors who are subject to its proceedings, a ‘legitimacy deficit’ that may make reaching equilibrium over ‘equality of arms’ an imperative (as much as a challenge) for the young court.
At present, however, these qualities have led it to reinforce substantial rights for defence. Consider the powers of prosecution. It may seem counterintuitive, but expansive powers granted to the ICC Prosecutor have been met by extensive safeguards for defence, leaving it a matter of debate as to whether defence fares better under this scheme over others. Where prosecutors for the ICTY and ICTR are responsible for the conduct of investigations and prosecutions, they are denied power of choice over situations they intend to investigate. The situation is particularly vivid regarding the STL. Yet the berth granted the ICC Prosecutor is novel in its breadth. He or she can initiate an investigation against crimes committed in any member state—or even in states that are not parties to the Statute, such as Sudan, upon deference to the UN Security Council—on the basis of information received from individuals or organizations. This implies a kind of ‘selection’ of most relevant situations and a consequential risk of politicization, or appearance of such, in its actions; a risk underscored by the often vociferous reaction following its issuance of arrest warrants, notably evident in the warrant of Sudan’s Omar Hassan Ahmad Al Bashir.
Sudan best exemplifies the Court’s legitimacy deficit. Specifically it shows its legitimacy lies, in large part, in chambers’ commitment to principles of due process. In any case can we see the Rome Statute and other supporting instruments of the Court significantly enshrining rights of defence, with article 67 being central in this regard. Where some consider article 67 to have ‘hierarchically superior status within the Statute’ such that ‘the Court may be required to declare provisions within the Statute inoperative because they conflict with Article 67’ (Schabas, 867), rights of defence are protected at each stage of proceedings, and by a number of provisions beyond the rather vague and general, which promise an appropriate level of protection for defence. A close examination of such provisions is telling.
The Principle of Legality and Presumption of Innocence
The principle of legality is strictly respected by the Rome Statute. Article 24 of the Rome Statute provides that ‘[n]o person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute’. Article 22 reiterates the principle of nullum crimen sine lege, where article 23 directs that ‘[a] person convicted by the Court may be punished only in accordance with this Statute’ (Schabas, 406-410). These provisions ensure that the Court will avoid accusations of retroactive justice invited by Nuremberg and Tokyo and even the ICTY and ICTR. And yet as a permanent court, the unlimited duration of the ICC’s mandate does not permit perpetrators within its jurisdiction to avoid prosecution on the basis of ‘legality’, save those who have committed crimes before entry of force of its founding instrument, the Rome Statute.
Furthermore, where not recognized by the Nuremberg Charter, a strong presumption of innocence is ensured by article 66 of the Rome Statute, which provides that
- Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
- The onus is on the Prosecutor to prove the guilt of the accused.
- In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
These provisions constitute an innovative departure from previous tribunals. Where the onus of proving guilt is squarely placed on the ICC Prosecutor, no rules expressly specify the same for the ad hoc tribunals (Zappalà, 1342). Furthermore, this provision is supported by article 67 which rejects reversal of this onus on the accused (Schabas 2010, 815-816). Yet by comparison, the ad hoc tribunals allow the onus to be reversed in certain circumstances, such as rule 92 of the ICTY Rules of Procedure and Evidence which directs that proof of a forced confession be brought by the accused (provided safeguards are followed, under rule 63, in questioning of an accused), and former rule 65 which directed that proof of circumstances that could justify provisional release be borne by the accused (Zappalà, 1344). Another innovation is article 66’s reference to proof of guilt ‘in accordance with the applicable law’. Where provisions of the ICTY refer to its Statute alone, article 66 provides as such a more accurate reference for ICC Chambers in suggesting it incorporate the rules of procedure and other norms applicable to the Court (Zappalà, 1345).
Article 67, the Central Provision for Rights of the Accused
Pursuant to article 67 of the Rome Statute, ‘[i]n the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially’. Article 67 further enumerates the minimum guarantees underlying these principles, which largely mimics article 14 of the ICCPR. Accused persons have the right to be informed promptly and in detail of the nature, cause and content of the charge, in a language he understands. The accused shall be tried without undue delay, and chambers shall ensure the expeditious quality of each trial.
Adequate Time and Facilities
The accused must have adequate time and facilities in order to prepare his defence, a continually controversial notion for international criminal courts. Where defence teams typically enjoy a few months to prepare, the Prosecutor may investigate and collect evidence over a number of years. However, creation of an Office of Public Counsel for the Defence (OPCD) largely rectifies this imbalance. Regulation 77 of the ICC Regulations of the Court provides that the OPCD represents and protects the rights of defence during the initial stages of investigation, over the course of indictment or arrest, and provides support and assistance to defence counsel thereafter, ensuring that defendants and their counsel benefit from the work of the OPCD at the early stages of proceedings.
A roster of duty counsel has been established in this regard. Under Regulation 73, duty counsel are available at any time to represent any person before the Court or to represent the interests of defence generally. The Registry may appoint counsel if any suspect urgently requires assistance but has yet to secure, or be appointed, assistance. As well, Pre-Trial Chamber may appoint counsel to represent the interest of defence even where no one has been accused and no one will be interrogated, with the Prosecutor bearing a duty of notification of such need (Gallant and Kirsch, 447). And even at the investigative stage, certain rights of suspects are guaranteed; under article 55, suspects ‘may have legal assistance of his own choosing and may request to be questioned in the presence of his counsel’.
In fact quite generally we can see that establishment of Pre-Trial Chamber itself reinforces rights of defence to have sufficient time and facilities to prepare. Under article 61, the Prosecutor is required ‘to support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged’. Moreover at this hearing, article 61 ensures that defence may object to such charges, challenge the evidence presented by the Prosecutor, and present evidence itself. In short, pre-trial hearings, and in particular the confirmation of charges hearing, allow defence to examine and object to evidence arrayed against it, and to prepare a defence well in advance of trial.
Free Choice of Counsel and Legal Assistance
Pursuant to article 67 (d), the accused has the right to conduct his defence in person or through legal assistance of his choosing, and without payment, where the interests of justice so require. The right to freely choose counsel is restricted by the Rules of Procedures of Evidence, which limit his choice to a list of counsel preselected by the Registry upon assertion of the qualifications of ‘candidates’. Nevertheless, rule 21 guarantees the competence and independence of counsel. And on the basis of this list, any accused may exercise his free choice. Also any counsel chosen by the accused but not admitted on the list may ‘apply for and qualify for placement on this list’, placing ‘a substantial but justifiable burden on the Registry promptly to make sure that counsel chosen by a client do in fact meet the qualifications’ (Gallant and Kirsch, 454). In addition, the appointment of defence counsel could be restricted by the Registry on a case-by-case basis. For example, in Katanga, the appointment of the defence counsel chosen by the suspect, who was previously admitted on the list, has been conditioned on counsel certifying that he was able to communicate in a satisfactory manner with the accused, and had a sufficient working knowledge of French (one of the Trial Chamber’s working languages).
Legal assistance is guaranteed for indigent suspects, including costs of counsel and co-counsel, assistants and investigators. But where this right is not explicitly guaranteed, it is required by ‘context where the interests of justice so require’ (Gallant and Kirsch, 449). Nevertheless it must be said, the ICC’s provisions do not guarantee ‘equality of resources’ between prosecution and defence. But where defence teams decry their lack of resources, it is often noted that resources of prosecution are to cover several investigations for several situations. In any case, an Agreement on Privileges and Immunities has been concluded by the Court to address such concern, and in fact, resources for defence have been progressively increased over time.
Well understanding that ‘counsel-client privilege and professional secrecy’ is central to ‘fair administration of justice’ (Gallant and Kirsch, 478), confidential communication between the accused and his counsel are guaranteed by rule 73 of the ICC Rules of Procedure and Evidence, which provides that
communications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless:
(a) The person consents in writing to such disclosure; or
(b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.
It must be noted however that this crucial privilege is only guaranteed by the Rules of Procedure and Evidence, and not by the Rome Statute itself (Schabas 2010, 805). However interestingly enough, the code of conduct for counsel allows breach of confidentiality in certain cases—such as where a client requests to split fees.
Rights of Defence during Trial
In general, accused persons enjoy rights typically guaranteed in Western criminal proceedings. Pursuant to article 67, defence counsel has the right to examine or have examined the witnesses against him. (Although this right does not in itself constitute an innovation in international criminal jurisprudence.) Defence counsel also has the right to obtain the attendance and examination of any appropriate witness on his behalf, and is entitled to raise defences and present evidence in the course of proceedings. Under article 67(f) and (g), he shall not be compelled to testify or to confess guilt, but may ‘remain silent, without such silence being a consideration in the determination of guilt or innocence’. He similarly has the right to make an unsworn oral or written statement in his defence.
Article 63, on the other hand, provides that ‘[t]he accused shall be present during the trial’, which apparently excludes trials in absentia, whilst article 65 provides that admission of guilt is strictly controlled by Trial Chamber and is not sufficient in itself to establish guilt. Thus rights of defence include protection of the accused against himself, Trial Chamber bearing a duty to investigate whether the ‘accused understands the nature and consequences of the admission of guilt’, whether ‘admission is voluntarily’ and whether ‘admission of guilt is supported by the facts of the case’ (article 65). Where admission of guilt is deemed unsafe, Trial Chamber shall order, under article 65, that trial be continued under ordinary proceedings.
Disclosure of Exculpatory Evidence
Article 54(a) of the Rome Statute provides that the Prosecutor must ‘investigate incriminating and exonerating circumstances equally’, a provision that, in the words of a commentator, ‘renders the defence less vulnerable vis-á-vis the prosecution and may allow for a more relaxed application of the adversarial principle’ (Tuinstra 2009, 156). Indeed disclosure of exculpatory evidence is a central guarantee for a proper defence. Although generally guaranteed by rule 68 of the ICTY’s Rules of Procedure and Evidence, it is substantially limited by rule 70 such as in the case of ‘information which has been provided to the Prosecutor on a confidential basis’, and of ‘reports, memoranda, or other internal documents’ prepared for prosecution. Under the Rome Statute, this principle is firmly engrained as a duty upon the Prosecutor. Pursuant to article 67 of the Rome Statute,
[t]he Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.
In what amounts to ‘a considerable step forward in the protection of the rights of the accused’ (Zappalà, 1352), article 67’s significance is underscored, it may well seem, by the difficulties posed to prosecution of disclosing potentially exculpatory material in the case of Congolese warlord Thomas Lubanga Dyilo (Lubanga), the first case before it. The decisions of the Trial Chamber and Appeals Chamber in Lubanga potentially represent a major advancement of the rights of defence, where they suggest that the judges themselves must be able to assess the exculpatory nature of evidentiary material that have been provided to the prosecution on a confidential basis. This interpretation is in line with the language of article 67 which specifies that in case of doubt of the exculpatory nature of evidentiary material, ‘the Court shall decide’.
Rights of Defence vis-à-vis Rights of Victims and Witnesses
On the other hand, one of the most innovative dimensions of the Rome Statute is the wide and substantial rights afforded victims and victim representatives, most notably rights to participation in all stages of ICC proceedings, rights which offer new challenges for the accused who must defend himself against a prosecutor as well as potentially victims of crimes allegedly perpetrated by him. More fundamentally, these provisions strike a new balance between rights of the accused, rights of prosecution, and rights of victims and witnesses that will be fleshed out gradually in the course of proceedings of the Court. This new balance is captured by article 68 which specifies that
[w]here the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
Participation of Victims in Proceedings
But ‘views and concerns’ remain vague, inviting incursions over rights of defence. Where in civil law systems this notion typically refers to admissible views of victims respecting compensation, in judicial proceedings it may help establish truth. Nevertheless, admissible ‘views and concerns’ may provide an invaluable opportunity for the psychological restoration of victims, by giving avenue to victims’ deep-seated need to express their views emotively and directly to the Court, and alleged offenders, about sufferings they’ve sustained. They may seek information about their case, consult the record of proceedings and public filings, introduce evidence during trial, participate in hearings and status conferences, and file written submissions during trial under the control of Trial Chamber. They may also seek an apology. But more significantly it seems that where article 75 directs that ‘[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’, one can presume that ‘views and concerns’ of victims will largely give way to extensive rights over reparations in which the Court may order convicted persons to provide victims with appropriate reparations or may decide that award of reparations will be made through the Trust Fund as provided by article 79.
But the wide berth granted to victims, victimized communities, victim representatives and even victim-based organizations amounts to what may seem a second prosecutor against whom an accused must mount a defence. In the rush to advance the reach of the Court to those in whose interest it was founded, that is to say, it has introduced an element, a highly emotive element, which, in giving vent to feelings of vengefulness may undermine the right of the accused to be presumed innocent until proven guilty. Or rather the right of victims to participate in proceedings may substantially undermine the right of the accused to enjoy adequate time to prepare his defence, because contrary to judicial contexts where victim participation is strictly limited, an accused will not only have to defend against the charge of prosecution but will have to respond to victim submissions, victim statements and witnesses, each with their own agenda.
Lubanga is telling. In a case involving recruitment of child soldiers, 93 victims have been granted participation, as represented by seven legal representatives, each with an opportunity to provide an opening statement and an examination of witnesses. Although a given chamber has the power to supervise the right to victim participation, victim opening statements have not only focused on legitimate interests in truth, justice, compensation, recognition of harm and questions of rehabilitation and protection, but have in six of the seven statements focused on rape and sexual abuse of girl soldiers even though the defendant had not been charged with these offences. Defence counsel has decried these new allegations as ‘anonymous accusations’. In addition, victim’s counsel have posed questions to five witnesses, questions that appeared obscure and prejudicial in the framework of ‘views and concerns’ of victims.
However, it appears that victim participation may not constitute an insurmountable obstacle for defence where, as in the case of Lubanga, Trial Chamber vigilantly and deftly balances the rights of victims, witnesses, prosecution and defence. Note if one will its Decision on Victims’ Participation where it enumerated several guidelines for participation, namely ‘an interest in receiving reparations, an interest in being allowed to express their views and concerns, an interest in verifying particular facts and establishing the truth, an interest in protecting their dignity during the trial and ensuring their safety, and an interest in being recognized as victims in the case, among others’. Certainly these departures portend dangers for defence in lying well beyond traditional thinking about victim testimony relating to compensation and reparations. Yet safeguards may be introduced that may counterbalance the prerogatives of victims, such as designating a common legal representative for victims, addressed in Lubanga, which may expedite trial and assist defence in limiting the number of counsel one would have to defend against.
But the dual status of victims as witnesses poses another problem for defence where names and details are left undisclosed for their protection. In Lubanga, Trial Chamber stressed that such dual status may not adversely affect the rights of defence even where authorised for certain victims, and issued other decisions concerning victim participation, in what now appears an incessant seesaw of rights afforded parties, with victims’ rights recently extended by decisions of Trial and Appeals Chamber. While the modalities of victim participation are subject to decisions of a given chamber, this seems an appropriate remedy for defence insofar as each chamber remains vigilant about ensuring a generally just balance of rights.
Protection of Victims and Witnesses
Victims and witnesses pose a central concern for international criminal justice, and certainly so since founding of the ICTY and ICTR. While defence may cross-examine victims and witnesses for prosecution (article 67[e]), Pre-Trial Chamber may ensure ‘the protection and privacy of victims and witnesses’ (article 57[c]), whilst Trial Chamber ‘shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’ (article 64). Despite these guarantees, however, certain modalities of protection, respecting confidentiality especially, may affect the rights of defence. Thus pursuant to rule 87 of the ICC Rules of Procedure and Evidence, a chamber may ‘prevent the release to the public or press and information agencies’ the identity of victims or witnesses and any other information that could lead to his or her identification.
Although this may prejudice defence, the power to expunge information primarily lies with Pre-Trial and Trial Chamber, which lie on the front lines of striking a reasonable balance between rights of defence and other interests such as protection of victims and witnesses. But as well, Appeals Chamber has set forth several guidelines in the interest of justice. In the Prosecutor v Katanga and Ngudjolo Chui it determined that any expurgation of evidence must be justified by existence of an objective risk to safety of persons concerned, of a link between the source of risk and accused persons, of infeasibility or insufficiency of less restrictive protective measures, and of prejudice, in the requested redactions, against rights of defence. It remains to be seen whether these guidelines bring an element of fairness in proceedings where information exists that is as much vital to defence as may compromise the safety of victims and witnesses.
Conclusion: ‘Right to Fair Trial’ as an Evolving Seesaw?
The above analysis suggests that the balance of rights and protections afforded each party in international criminal processes reflects the social forces underlying each attempt at justice, as much as reflects a growing understanding of what consists in justice itself.
Indeed among the small circle of nations whose assent gave rise to tribunals in Nuremberg and Tokyo, we are left with what appears an instance of victor’s justice, with relatively few protections offered the criminally accused. But as we proceed to the ICTY and ICTR, we find increased protections offered for defence owing to what seems a greater and more varied number of nations whose assent underlie each mandate—namely members of the UN Security Council who presumably proceed in the interests of peace and justice and in the interest of the larger body of the United Nations. This seems as much an explanation as the cultural milieu in which the ad hoc tribunals were founded, a culture of human rights and humanitarian law that gradually took root since the end of the Second World War, a culture that understands rights of defence as central to the cause of human rights and international justice. But also on this view, we find a permanent court in The Hague that aspires to a global mandate and global orbit of assent, a movement that lends itself, it seems, to extensive protections for the accused as a means of placating the fears of states and state actors whose assent and cooperation are critical for its success. And we find an innovative and extensive commitment to victims and witnesses in deference to the plethora of rights groups who were instrumental in its founding, and whose assent is equally essential for its success.
In any case we can see this incessant struggle over the proper mix, or balance, of rights and protections afforded each party begs a number of fundamental observations, and questions, the resolution of which may determine the very survival of the nascent court. Certainly we can see that the legitimacy crisis faced by each attempt at justice reaches a new high in the universal aspiration of the permanent court. The particular crisis faced by the ICC largely follows the stain of victor’s justice in Nuremberg and Tokyo, which is not altogether escaped by subsequent tribunals for the former Yugoslavia and Rwanda, which applied law against criminal actors without the consent of states. And indeed the larger orbit of assent to which it aspires makes it imperative it protect itself from unwarranted assumptions that it’s a play thing for hegemonic forces that seek to browbeat states and state leaders in developing and nonliberal contexts; a legitimacy deficit that makes imperative the protections it offers defence, limits it places on prosecution, and balance it strikes between parties.
But certain questions remain. Is the Court heading toward equilibrium over rights and protections it offers defence, prosecution, victims and witnesses? And is reaching some sort of stasis necessary for its success, by providing certainty, by appearing reasonable? Or should rights to ‘fair trial’ and correlative notions like ‘equality of arms’ remain flexible in practice? In this sense, should the Court and a given chamber remain attentive to the political and cultural particulars of the situation and case before it? Are we faced with a cruel trade-off between protecting one party at the expense of another? And, fundamentally, should the international community seek uniformity over rights and protections, among the ICC and sister tribunals, in place of the diversity we find in each? Or are questions of rights of defence and larger questions of ‘fair trial’ for defence and prosecution, victims and witnesses, subject to never ending speculation and evolving consensus over what consists in law and justice? In short, is reaching an optimum distribution of rights and protections, perhaps even a Pareto optimum, either desirable or possible?
As the most ambitious of courts, these questions come to a head in the legitimacy crisis faced by the Court and response to voices crying for the highest standards of defence, representing as it does the most formidable for a within which questions of ‘fair trial’ are raised. And so while it remains to be seen whether the permanent court is marching toward some equilibrium over ‘fair trial’ and ‘equality of arms’, its youth suggests that as it trudges toward a reasonable application of transnational law, it will remain a battle ground for internecine struggle over standards of defence and larger issues of retributive and restorative justice for many decades to come.