In 1999, I had the opportunity to meet George Soros, the well-known financier and philanthropist. When Soros asked me about my profession, I puffed out my chest and proudly told him that I was a prosecutor at the United Nations International Criminal Tribunal for the Former Yugoslavia (“ICTY”). The great man was silent for a moment and then he burst my bubble with a single question: “Don't you think,” Soros asked, “that it's really a long, slow, cumbersome process?”
Soros was right fourteen years ago and he is right today. The development of fair, effective and efficient procedures for the investigation and prosecution of complex international crimes remains one of the great challenges for practitioners in this field. International criminal courts frequently receive valid criticism that trials are too long and too slow, that procedural “reforms” undermine the rights of accused to fair and expeditious proceedings, that decisions and judgements are so technical and complex that victim communities cannot understand them, and that international criminal tribunals are too expensive. Thus, court officials continue to search for methods, structures and procedures that better balance all of the interests at stake.
Fortunately, international lawyers now have a new resource to assist them. In International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems (“ICP”), Professors Linda Carter and Fausto Pocar (who serves as a judge at the ICTY) have gathered an impressive group of scholars and practitioners to discuss six of the most complex procedural challenges in international criminal law. While all major legal systems protect the same fundamental rights, the procedures for implementing these rights vary between legal systems and between international criminal tribunals. The chapters in the ICP focus on these different procedural mechanisms and explain the philosophical and functional reasons for them. The authors describe how the efforts of international tribunals to blend the common law “adversarial” system and the civil law “inquisitorial” system provide opportunities as well as challenges for the realization of fair and expeditions criminal proceedings.
In “Plea Bargaining” (p. 64), Jenia Iontcheva Turner reviews the history of the use of plea bargains at international criminal courts, the conditions that must be fulfilled to ensure a valid guilty plea, as well as the sentencing consequences of guilty pleas. Professor Iontcheva Turner helpfully describes the possible disadvantages of plea bargains in the context of massive international crimes in addition to their potential to improve the efficiency of the process. The authors recommends that international criminal courts determine the appropriate standard for the quantity and quality of evidence that defendants must receive from the Prosecution prior to entering an informed guilty plea. This is a sound and important suggestion for improving the fairness of these abbreviated proceedings.
Professor Hannah Garry's contribution, entitled “Witness Proofing” (p. 66), describes the practices used by parties to proceedings in different national and international courts to prepare witnesses to give testimony. As Garry observes, this has been a contentious issue at international criminal courts. The debate focues “on who should be allowed access to witnesses pre-testimony and what should be the nature of their interaction with the witnesses before giving evidence at trial.” In common law “adversarial” legal systems, the competitive presentation and cross-examination of evidence by opposing parties is crucial to the work of neutral fact-finders. Thus, in jurisdictions where the adversarial system predominates, witness proofing is an important component of the judicial process. Under the civil law “inquisitorial” approach, however, judges actively gather evidence and lead the questioning of witnesses. Witness testimony at trial consequently is less central to the proceedings and contact between witnesses and the parties prior to testimony is usually disallowed.
As Garry explains, different international criminal tribunals, in particular the ICTY and the permanent International Criminal Court (“ICC”), have adopted different perceptions of their hybrid procedural frameworks as being more adversarial or more inquisatorial in nature. The result of these contrasting perceptions – and the underlying philosphical differences that they represent – has led to starkly different approaches to witness proofing. The jurisprudence of the ICTY strongly supports the practice while the ICC, drawing from the inquisatorial model, prohibits most pre-trial contact between witnesses and parties. Garry musters compelling arguments to demonstrate that, viewed through the lens of international human rights law, on-balance the ICC's approach is counter-productive for victim-witnesses, for accused and for the international community. The ICC's ban on witness proofing seems particularly incongruous given that the court “is still primarily adversarial in nature when it comes to the procedure for submission and examination of evidence at trial” (p. 97).
Indeed, as Dr. Guido Acquaviva notes in his chapter on “Written and Oral Evidence,” to date practice at the ICC (as well as other contemporary international tribunals) “has overwhelmingly followed the adversarial model” (p. 110). International courts generally take a more liberal approach to the admission of evidence than certain national common law judicial systems. However, the predominance of common law procedures, and their more technical rules on admission of evidence, may explain some of the inefficiencies of recent international trials. Acquaviva describes the procedures and safeguards put in place to permit the admission of written statements and other documents in lieu of time-consuming oral testimony, as well as the judicial notice of “adjudicated facts.” However, in spite of these efforts, judges at international courts still “tend to be flooded with irrelevant and unreliable evidence” (p.123). More work is necessary, therefore to ensure that case preparation procedures of counsel are adequate and do not undermine the fairness and expeditiousness of trials.
Professor Charles Chernor Jalloh's contribution addresses “Self-representation and the Use of Assigned, Standby and Amicus Counsel”. Jalloh connects jurisprudence concerning the scope of the right to self-representation to the adversarial and inquisatorial legal traditions. As Jalloh observes, the adoption by international courts of systems that are “essentially adversarial rather than inquisatorial in nature” (p. 138) means that the common law's emphasis on individual autonomy (and a broader scope for the right of an accused to defend herself) has prevailed. However, the efforts of some self-representing accused “to transform the dignified search for some justice into political theater undermines both the legal and moral justifications for that right” (p. 127). To date, no accused at the ICC has chosen to represent herself. It remains to be seen whether ICC judges will be more successful than their ad-hoc counterparts in upholding the right to self-representation without undermining the fairness, expeditiousness and credibility of the proceedings.
In “The Role of Victims,” Sigall Horovitz analyzes the participation of victims in proceedings before international criminal tribunals and, in particular, at the ICC. Horovitz explains how the predominance of the adversarial legal process at the ICC may complicate victim participation there. ICC judges must take care that the participation of victims in proceedings does not upset the equality of arms between the parties. As Horovitz suggests, it might be wise to expand the notion of “fair trial” in adversarial systems to apply to victims as well as to the defence and the prosecution (pp. 188–9). This change would also serve to reduce the scope for self-representing accused to engage in behavour that is offensive to victims.
Magali Maystre's comprehensive final chapter concerns the procedures and scope of the right of accused and prosecutors to appeal decisions issued by international criminal courts. Maystre describes the controversial practice in certain ICTY and ICTR cases where Appeal Chambers have entered convictions on appeal and/or increased sentences without providing any avenue for appeal of these Judgements. She wisely recommends that “the best practice is for the ICTY and ICTR Appeals Chamber to avoid entering convictions or increasing sentences on appeal and to remit matters to an appropriate trial chamber” (pp. 222–3) where retrial is necesary to avoid a miscarriage of justice. In that light, I sense a contradiction between Maystre's defence of the ICTY Appeals Chamber's judgment in Blaskic – which describes four separate standards of Appellate review of Trial Chamber Judgements – and her principled position concerning the importance for Appeals Chambers to “give deference” (pp. 238–40) to the findings of trial chambers. Word limitations prevent me from discussing recent controversial divergences from these standards of appellate review at the ICTY (Prosecutor v. Ante Gotovina & Mladen Markac, Judgement, Case No. IT-06-90-A, 16 November 2012, http://www.icty.org/x/cases/gotovina/acjug/en/121116_judgement.pdf).
Dr. Guido Acquaviva observes that “[I]nternational criminal tribunals consider it axiomatic that they should, and indeed are bound to, respect international human rights standards” (p. 102) One recurring theme of this edited volume is the predominance of the common law adversarial system of justice in international criminal tribunals. Given the challenges of compliance with international human rights standards described in these illuminating contributions, it may be time to transform the legal structures at international criminal tribunals into models based more effectively on the civil law inquisitional legal system. These procedures and structures, in particular when directed by professional judges, may serve the interests of accused and the international community more fully and efficiently than the present cumbersome and slow processes.
Without fair, effective and transparent procedures, no judicial system – domestic or international – can establish and maintain its credibility. Professor Carter, Judge Pocar and the individual authors of ICP have made an important contribution to international justice by blending many of the challenges of crafting the right international criminal procedures into a single, useful volume.
