Defense Perspectives on Law and Politics in International Criminal Trials: A Reply to Professor Heller

Many thanks once again to Kevin Heller for his thorough review of the article, for his kind compliments, and for his very insightful comments. Kevin is highly qualified to evaluate the article, and I can already see that I am benefitting from this exchange. I am very pleased that he believes the article to be useful and that he agrees with me on a number of points. At the same time, I will take this opportunity to address a couple of the issues that he highlights as possible points of divergence.

First, I will address Kevin’s points about the undesirable effects of the ICTY’s and ICTR’s “Completion Strategy” and the ICTR’s decision to take judicial notice of genocide. The two are related. The decision to take judicial notice was made in an effort to expedite trials. This was also the main goal of the Completion Strategy, which is the term for the Security Council’s mandate that the tribunals complete their work in the next several years. As I pointed out in the article, to the extent that efficiency is pursued at the expense of fairness and accuracy, possibly leading to unjustified convictions, the tribunals may in fact be moving toward a political model, and one devoted above all to efficiency. (This may be a move toward a “managerial model,” to quote Maximo Langer, who has analyzed it in greater depth). It was beyond the scope of the article to examine the full effects of the Completion Strategy and this move toward efficiency. I agree with Kevin that the Completion Strategy has reduced the perceived fairness of the tribunals among a number of defense attorneys and outside observers (including Kevin himself, in his excellent piece in the American Journal of International Law). And to the extent that it has compromised defendants’ rights to present evidence, to confront witnesses, or to contest all the specific charges leveled against them, it may have, in fact, reduced the fairness of trials. So I would acknowledge that the Completion Strategy in some respects represents a shift toward the political goal of efficiency over the adjudicative goal of apportioning guilt and innocence in a fair manner.

At the same time, as I discussed in the article, commentators and defense attorneys sometimes overlook incidental effects of the Completion Strategy that may in fact favor defendants. For example, as some defense attorneys whom I interviewed acknowledged, the Completion Strategy has led judges to trim overbroad indictments and to discourage or prevent prosecutors from introducing evidence that is cumulative or unrelated to the charges against the accused. To this extent, it has nudged trials away from some of the broad political goals which animated the work of the court in earlier years—for example, the goals of pursuing a fuller historical record and giving victims the opportunity to achieve closure by testifying in court. In short, I believe that the effects of the Completion Strategy are complex and do not entirely favor the prosecution or the political model.

Next, I will address Kevin’s comments about some of my statements that he believes may express a dismissive attitude toward defense attorneys. Throughout the research and writing of the paper, I tried to maintain a neutral and detached perspective concerning the role of defense attorneys at international criminal trials. But it is instructive for me to see that some of the statements do not appear to be entirely balanced in the eyes of a careful and knowledgeable reader. I would like to provide some further explanation of my intended meaning with respect to some of the statements that Kevin quoted.

My statement that “[i]t is likely that, when defense attorneys refrain from political arguments, they are simply making a strategic decision,” did reflect the responses of some of my interviewees. A number of defense attorneys made statements such as “judges do not like political arguments” and “such arguments are generally useless.” This suggested to me that they decided not to make political arguments at least in part because they thought the arguments are not likely to be successful. I do agree that these comments do not provide a full explanation why defense attorneys refrain from political arguments, and I offered other explanations of the defense attorneys’ decision to do so –although these explanations were perhaps more tentative than I meant them to be. I pointed out that the distance of the international tribunals (and their lawyers) from the communities involved in the conflict may be a critical factor that enables the lawyers to avoid becoming embroiled in the political aspects of the trials. Second, in a later section, I explained how professional norms of attorneys further shape the decision not to make political arguments. Namely, I argued their education and work experience in an adjudicative model of criminal trials has likely instilled in them a respect for the rule of law and a reluctance to resort to political arguments. A number of attorneys simply believed that resorting to political arguments was not behavior befitting a good lawyer. This is a finding that was quite striking to me and I hope to examine it in greater depth a future essay on the professional norms of defense attorneys in international criminal tribunals.

Once again, I would like to thank Kevin for taking the time to read the paper so thoroughly, and for offering his very useful and thought-provoking comments. I look forward to continuing the conversation about the purposes of international criminal trials and about the role of defense attorneys in these trials.

A final thanks again to Opinio Juris and the Virginia Journal of International Law for giving me the opportunity to take part in this exchange.