Paradise Postponed? For a Judge-Led Generic Model of International Criminal Procedure and an End to ‘Draft-as-You-Go’
© T.M.C. Asser Press and the authors 2015Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_13
13. Paradise Postponed? For a Judge-Led Generic Model of International Criminal Procedure and an End to ‘Draft-as-You-Go’
Durham Law School, Durham, UK
13.3.2 Problems of International Procedure: Geo-Politics, Mass Atrocities and Creation of a Historical Record
Since 1945, international criminal justice has been one continuous construction site, an expression of the attitude of international stakeholders and policy-makers that favours temporary solutions to contemporary problems. Even with the creation of the ICC that has not really changed. This chapter will set out a few fundamental and rather radical ideas that aim at initiating a thorough rethinking of the way criminal proceedings at the international level are regulated and run today. It sees itself very much as a call for a principled re-evaluation and for a move away from the attempts of the last two decades of arriving at a genuine amalgam of diverse systems by the method of judicial trial and error. The existing model(s) is/are an exemplary expression of the temporariness of international law, because it/they proceed(s) from a refusal by international law-makers to engage in drafting a permanent model that retains fairness standards while striving for maximum efficiency and that is meant to be applied across the board to any (new) tribunal—an approach that would lead to much greater certainty of law than is currently the case because of an increase in cross-institutional comparability. The chapter contends that while both adversarial and judge-led systems in their own national settings can achieve comparable levels of fairness, they differ in efficiency and that a judge-led model is better suited for the international arena and should be made the foundation for any future permanent procedural framework. However, the temporary nature of the present system which mainly uses adversarial models is based to a large extent on an unprincipled reliance on supposedly ‘ready-made’ and ‘tried and tested’ solutions from as well as the experience of staff employed at previous tribunals. The use of the adversarial model is thus not based on a principled evaluation of its usefulness and effectiveness in the international context but on a default attitude of the lawyers creating and populating international tribunals, and possibly the diplomatic community in the wider sense.
KeywordsInternational criminal proceedingsFairnessEfficiencyJudge-led modelAdversarial modelAd hoc law-makingJudicial law-makingSources of international criminal lawControl over the prosecution
Chair in Comparative and International Criminal Law, Durham Law School, UK. With apologies to John Mortimer. The author would like to thank Mohamed Badar, Caroline Fournet, Berend Keulen, Stefan Kirsch, Simon Minks, Wolfgang Schomburg, Peter Wilkitzki and the Yearbook’s editors and anonymous reviewers for helpful comments on an earlier draft. The usual disclaimers apply.
Since 1945, international criminal justice has been one continuous construction site, an expression of the attitude of international stakeholders and policy-makers that favours temporary solutions to contemporary problems. Even with the creation of the International Criminal Court (ICC) that has not really changed. This chapter will try to set out a few fundamental and rather radical ideas that aim at initiating a thorough rethinking of the way criminal proceedings at the international level are regulated and run today. The author, prior to his 10 years as an academic in a common law university in England, served in the German judiciary for 13 years, in an international tribunal for two, and has had first-hand experience of the English criminal justice system as a barrister’s pupil; he thus hopes to have gained a deeper insight into the practical as well as theoretical framework of both civil and common law procedural models. The chapter does not make any claim about being able to address all of the basic issues of all stages of the proceedings and will focus mainly on the trial phase in the wider sense, i.e. from the preparation of the indictment onwards, as the centrepiece of criminal proceedings; it sees itself very much as a call for a principled re-evaluation and for a move away from the attempts of the last two decades of arriving at a genuine amalgam of diverse systems by the method of judicial trial and error.1 The history of international criminal procedure until the advent of the ICC has substantially been one of cobbling together building blocks from different traditions in order to create a new sui generis system based on extrapolations from Article 38(1) of the Statute of the International Court of Justice (ICJ) and the history of Nuremberg, Tokyo and the other post-war military tribunals. This eclectic approach has unfortunately been combined with a plethora of regulatory lacunae left to the judges of the tribunals by the international (for want of a better word:) law-making bodies, a criticism that applies to the ICC as well, albeit clearly to a lesser degree. Yet, the recent spate of cases over the accused’s duty to be present at the hearings in the context of the Kenyatta Proceedings and the clear political overtones in the decisions, including the fact that the Assembly of States Parties (ASP) later caved into the pressure from the African Union, should be sufficient evidence that even fairly basic and otherwise settled procedural concepts can acquire allergenic qualities in the system of international criminal law when they come into contact with the catalyst of international comity of states.2 The ‘sui generis’ system seems nonetheless to have had mainly adversarial overtones.3 Even in cases where the statute of a tribunal, such as the Special Tribunal for Lebanon (STL),4 provides for the adaptation of a civil law model,5 the court’s judges in their rule-making power have, as will be shown below, blindsided the drafters of the Statute and introduced a way for the Court to revert to what is in essence an adversarial model. The adversarial procedure is then infused with token civil law content, which creates unnecessary friction. For example, the introduction of the use of written statements as evidence at the International Criminal Tribunal for former Yugoslavia (ICTY) in the wake of its completion strategy was meant solely to speed up the trials, but it also had ramifications into the legitimacy of the rules of evidence and the fairness to the accused, as well as their right to confront witnesses in an otherwise adversarial setting, leading Judge David Hunt to remark famously in the Milosevic case that the interpretation of Rule 92bis by the Appeals Chamber majority left a ‘spreading stain’ on the reputation of the ICTY.6 Interesting as the developments in international criminal law may appear if viewed as a ‘legal laboratory’, the fact remains that courts, which deal with putting people away for many years for horrendous crimes, must first of all strive for legal certainty. This chapter will argue that the current unprincipled state of affairs is unsatisfactory, that mostly adversarially-based mixed systems make little sense in the international forum,7 are responsible for delays and disadvantaging the defence, and that a move to a judge-led system is necessary, which protects the defence and keeps the prosecution in check by, among other things, ensuring sanctions for premature assurances8 of trial-readiness—an issue brought into sharp relief again at the STL in the controversy about joining the case of a fifth accused at the eleventh hour to that of the four first accused when the trial was weeks away, when their case had been developing for far over a year and the identity of the fifth accused had been known all along as well.
With the rise of the major role for victims’ groups in pre-trial and trial proceedings, the defence in a party-driven model is now facing a second adversary who is a purely interest-driven player in the game, one whom the judges will be reluctant to control because of the rising global criminal justice policy emphasis on victims’ rights—an emphasis that tends to forget asking itself the question whose victims they are before a final conviction is entered. In the case of mass atrocities based on factually complex and drawn-out armed conflicts with a vast number of affected people, linking the fate of any one of the victims to the person in the dock is highly problematic and runs the risk of politicising the trial as well as demonising the defence. A model based in principle on judicial non-interference in the process may not be fit for purpose to counter these concerns, which have been recognised even by seasoned common law lawyers.9
The existing model(s) is/are an exemplary expression of the temporariness of international law, because it/they proceed(s) from a refusal by international law-makers to engage in drafting a model that retains fairness standards while striving for maximum efficiency and that is applied across the board to any (new) tribunal—an approach that would lead to much greater certainty of law than is currently the case because of an increase in cross-institutional comparability.10 The chapter contends that while both adversarial and judge-led11 systems12 in their own national settings can achieve comparable levels of fairness, they differ in efficiency and that a judge-led model is better suited for the international arena. It is useful to provide the conceptual setting against the background of which all the following arguments should be read, and these words could be repeated as an introduction under each and every subheading. The temporary nature of the present system which mainly uses adversarial models is based to a large extent on an unprincipled reliance on supposedly ‘ready-made’ and ‘tried and tested’ solutions from, as well as the experience of staff employed at previous tribunals. The use of the adversarial model is thus not based on a principled evaluation of its usefulness and effectiveness in the international context but on a default attitude of the lawyers creating and populating international tribunals, and possibly the diplomatic community in the wider sense. In other words, the chapter argues that the current approach is de facto using the adversarial model as a drafting template for almost any new tribunal without engaging in a thorough and needs-based investigation of the demands of efficiency underlying international criminal justice. As will be shown at the example of the Lebanon Tribunal, sometimes the opposing intentions of the drafters of a Statute are undermined by adversarially-minded judges. The author does not advance the suggestion that the adversarial model as such lacks capacity for permanence, and if the international justice system had used the inquisitorial approach in the same manner as it has the adversarial one, the same comments would apply mutatis mutandis. Yet, as things stand at the moment, the temporary quality is factually tied to the adversarial model. If we want to advance to a permanent and coherent procedural paradigm, we must now undertake such a principled study and a needs-based analysis. This chapter will argue that the outcome of such an examination should lead to the adoption of a judge-led procedure.
This new paradigm will also require a new kind of international judge, namely persons with massive trial experience and the capacity to run a trial pro-actively—a radical departure from the (alleged) ideal of the impartial and more or less passive umpire that still pervades much of the thinking in international criminal justice and allows for the recruitment of candidates who do not have that experience—although gratifyingly this particular concern seems to be on the decline.
The author is under no illusion that anything like this will happen anytime soon, yet the debate should be had and the aim should be to arrive at a coherent and monolithic concept of international criminal procedure that rises above the petty and often still preciously guarded idiosyncracies of each system, as well as the lack of trans-systemic understanding among the judges and practitioners. It is no secret that the legitimacy of international criminal courts, and of international criminal law in general, is still hotly contested in many parts of the world for political and legal reasons, and the ad hoc manner of establishing them with the often ensuing non-chalant disregard exhibited by the international players for the legal system of the respective target country serves as an additional irritant. If there was a permanent system that applied to all international trials and which everyone was apprised of in advance, no-one could legitimately complain about—at least—this facet of the picture anymore.
13.2 A Case in Point: The STL
To clarify the point made about the STL and temporariness, it bears remembering that this tribunal was not meant to address international offences such as war crimes, crimes against humanity or genocide, but a simple if major terrorist attack in Lebanon and that it should apply substantive Lebanese law. The international involvement was merely due to the inability of the Lebanese judicial system to deal with this kind of violence itself. That did not stop the STL Appeals Chamber with its former President Cassese as reporting judge from trying to internationalise the domestic law on terrorism in its (in)famous Rule 176bis decision13 and from muddying the waters by introducing international concepts of participation and multiple charging when the need for that was not entirely clear from looking at the domestic law. The procedural part was left in a mixed state but especially on the conduct of the trial proceedings there was an interesting reference in the STL Statute, namely Article 20(2):
Unless otherwise decided by the Trial Chamber in the interests of justice, examination of witnesses shall commence with questions posed by the presiding judge, followed by questions posed by other members of the Trial Chamber, the Prosecutor and the Defence.14
This mode of questioning is clearly reminiscent of the judge-driven civil law model which applies in Lebanese law, unless the interests of justice require something else. The Rules of Procedure and Evidence (RPE) drafted by the judges provide for a means of avoiding the statutory approach, and it is the reasoning that is interesting.
Rule 145 Questioning of Witnesses
Where the Trial Chamber considers that the file submitted by the Pre–Trial Judge enables it to adopt the mode of proceeding outlined in Article 20(2) of the Statute, after the opening statements of the Parties and of any victim participating in the proceedings, each witness shall first be questioned by the Presiding Judge and any other member of the Chamber, then by the Party that has called the witness, and subsequently cross-examined by the other Party, if the other Party elects to exercise its right of cross-examination. The witness may also subsequently be re-examined by the calling Party.
Where the Trial Chamber considers that the file submitted by the Pre-Trial Judge is not such as to enable it to adopt the mode of proceeding envisaged in Article 20(2) of the Statute, after the opening statements of the Parties and of any victim participating in the proceedings, the witnesses called before the Trial Chamber shall first be examined by the Party that called them, then cross-examined by the other Party, if the other Party elects to exercise its right of cross-examination. The witness may also subsequently be re- examined by the calling Party. The Presiding Judge and other members of the Trial Chamber may at any time ask questions.
The Trial Chamber may decide to depart from the modes of proceeding provided for in paras (A) and (B) wherever it considers that this is required by the interests of justice.15
Note that Article 20(2) STL Statute talks about the interests of justice as the only criterion for deviating from the normal order of things. Rule 145(A) introduces a new concept, namely the question whether in effect the prosecution dossier submitted by the pre-trial judge as the ‘case file’ is sufficient for the trial chamber judges to run the trial themselves. It already deviates without any apparent justification from the clear order established in Article 20(2) STL Statute: Court—prosecution—defence; the Statute does not refer to who called the party. It is in substance identical with the rules under Lebanese criminal procedure, namely Articles 180 and 181 of the 2001 Code of Criminal Procedure (CCP) for proceedings before the single judge and Articles 255–260 CPP for trial before the full criminal court; Article 260 CPP even restricts the right of the parties to ask questions of witnesses in that they have to be made through the presiding judge. The CPP is available on the STL’s website and, indeed, one of the Lebanese appellate judges was responsible for its publication at the time the CPP was passed.
Rule 145(B) then takes the bold step to say that if the case file is not sufficient for the judges to proceed as under Article 20(2), the chamber may revert to adversarial mode. In other words, if the file does not provide a sound basis to the standard required to follow the procedure as foreseen in the hierarchically superior Statute, another procedure can be followed which divests the trial chamber of the control of the presentation of the evidence and shifts control to the prosecution. This is in substance nothing else but allowing the prosecution—via the pre-trial judge—to declare trial readiness when it is in fact not ready, because if it were, then the file would contain all the material the trial chamber would need to proceed as ordered by Article 20(2) STL Statute. How this can be in the interests of justice is unclear, to say the least. It might in extreme cases also mean that even though the case file was as complete as possible at the time, the judges could revert to adversarial mode if none of them was comfortable with or experienced in running a pro-actively judge-led trial.16 Given the systemic or professional provenance of many international judges in general that would not seem to be an unreasonable inference.
In the context of the STL there would have been enough experienced Lebanese judges who could have used the Lebanese system effortlessly. The presiding judge did not have to be an international one. No-one suggests that the Lebanese judges would be biased merely qua being Lebanese—otherwise they should not be on the bench under the criteria of Article 9(1) STL Statute. Yet, the Lebanese judges would have been uncomfortable with and lacked experience in the largely adversarial set-up brought about by the RPE. Why this was done when Article 28(2) STL Statute states that in drafting the RPE
the judges shall be guided, as appropriate, by the Lebanese Code of Criminal Procedure, as well as by other reference materials reflecting the highest standards of international criminal procedure, with a view to ensuring a fair and expeditious trial
remains open to question. Why not simply adopt the relevant sections of the CPP and make sure they comply with the afore-mentioned standards? Maybe because that would have made the ubiquitous ‘tribunal-hopping’ of staff and prosecutors from other tribunals more difficult? Maybe because the first President in charge of the STL had already had the experience of drafting a set of RPE at another international tribunal and it seemed less burdensome to adapt these to the STL’s environment—with the innovation of a separate pre-trial (but not investigating) judge already having been secured in the Statute? But then the one major controversial item in the STL and CPP arsenal of procedural tools from a human rights standards point of view, namely the trial in absentia, had also already been anchored in Article 22 STL Statute—for obvious reasons, because no-one at the time really anticipated that any of the suspects would ever attend trial, not least since Hezbollah had always made that clear. The Statute itself is thus somewhat contradictory with respect to what it regards as the ‘highest standards of international criminal procedure’, when all other international courts and tribunals, including the European Court of Human Rights, have always shied away from the procedure in absentia like, as it were, the Devil from holy water. Finally, what the exact content of Rule 145(C) RPE is, remains equally uncertain: neither judge-led nor adversarial but …? The judges of the STL’s Trial Chamber in the case of Ayyash et al. predictably reverted to the adversarial mode when the trial began on 16 January 2014.17
This brief excursion into the law of just one tribunal has hopefully shown what effects the ‘draft-as-you-go’ approach as an expression of temporariness can entail. It opens the building of the administration of justice up to intruders with separate agendas and to political negotiations that would appear to fit and fix the temporary emergency and to fill the temporary gaps in the law needed for the fixing. A proper and detailed Code of International Criminal Procedure applicable to any and all international criminal courts and tribunals—and this chapter in the final analysis argues for nothing less—would mean a big step away from these constant uncertainties. After all, no-one would want to be faced with a justice system as it currently exists on the international level, were they to face trial at home even on lesser charges than genocide. In this context, the highest international justice standards must not fall below their highest national counterparts—and legal certainty is a fundamental one among their number.
13.3 The Conceptual Framework: Purpose, Fairness and Efficiency
13.3.1 Characteristics of Domestic Procedures
Before a decision about the proper shape of what one might call a Code of International Criminal Procedure can be made, we need to examine the conceptual framework of international criminal proceedings. What are international trials meant to achieve? What can they achieve? One should guard against exaggerated expectations. It is helpful to start with the national framework and function of a trial. A trial at domestic level is meant to establish the criminal guilt of an individual accused. The offences are in most cases clearly circumscribed by the domestic laws on criminal offences. The general part on modes of liability, attempts, participation, mens rea etc. is also normally fairly settled. There is usually a long history of case law, which may be either legally binding if a system subscribes to stare decisis, or factually binding because no judge risks being overturned by going against the settled jurisprudence of the appellate courts. Depending on the procedural system, the court or the parties will be in charge of adducing the evidence and structuring the trial; in the first case, the parties often have a corresponding right to ask the court to hear additional evidence, in the latter it is mostly their own responsibility. Each system will be embedded in a wider cultural context, which will in turn decide whether a mode of trial is seen as fair or not. Some societies put a great emphasis on lay participation as a damper on state intrusion, and accept the attendant occasional incoherence in the system based on laymen’s inclination to favour justice in the individual case over enforcing rules consistenly. Others prefer to make an effort for a principled approach, and thus value the role of professionally trained judges more. Some systems see their judges as neutral umpires, others ask them to descend into the arena. Some restrict the fact-finding to lay-persons and questions of law to professional judges, others allow a mixture or even do without any lay element at all. Mirjan Damaška set this basic picture out many years ago and his analysis is still worth reading.18 However, especially in adversarial settings such as, for example, the United Kingdom, the rise of managerial judging19 raises the question of whether the traditional picture of the disinterested umpire can still be upheld.20 What can be said, however, is that each of the two systems in its own cultural environment is capable of achieving adequate levels of fairness accepted as sufficient by the host society, even though a different society might disagree.
13.3.2 Problems of International Procedure: Geo-Politics, Mass Atrocities and Creation of a Historical Record21
When we shift to the international level we find, firstly, that (geo-)political factors enter into the picture, which do not tend to feature prominently in the everyday domestic trial environment. An international tribunal is always caught between the political interests of states and/or international organisations which often already surface in the negotiations about their establishment, their jurisdiction and their financing, staffing etc. Secondly, atrocities of a scale common to most international tribunals do not normally occur in domestic settings and thus have a greater impact on human emotions and the need for understanding their origins as a first step in preventing their repetition. Thirdly, and most of all, however, we find that there is no common cultural milieu and agreement about what determines a fair trial, absent certain insular, but in nature generic, findings by human rights courts etc., the applicability of which to the international courts is, however, sometimes contested by reference to their unique nature or the complexity of the proceedings before them, most prominently in the context of remand in custody, as recently highlighted in the Seselj trial at the ICTY.22
The first two factors, namely geo-politics and the scale of the atrocities, have led some23 to argue that an international trial is not merely meant to establish individual guilt, but also to create a historical record for the victimised region on which possibly reconciliation efforts at national level could be based. It is here that the difference between the adversarial and—to use the traditional expression—‘inquisitorial’ system comes to light. An essentially party-driven system, as currently used in the international courts, cannot perform this function because apart from any information necessary for establishing the core offence elements and the so-called chapeau elements