Defense Perspectives on Law and Politics in International Criminal Trials — A Response

by Kevin Jon Heller

I am delighted to comment on Jenia’s essay. It’s an exceptionally important piece of scholarship, one that I hope will spur greater interest in the empirical study of international criminal law. Careful work of this kind is all too rare in ICL – the product, no doubt, of how difficult and time-consuming it is!

Jenia has done international criminal law a great service with this essay. Defense attorneys are all too often dismissed as troublemakers far more interested in political grandstanding than in defending their clients. Jenia’s research dispels that stereotype: in fact, defense attorneys at the ICTR and ICTY rarely make political arguments, discourage their clients from making them, and in some cases would refuse to represent a defendant who insisted on politicizing a trial. Even more important, Jenia humanizes defense attorneys by showing that they are motivated not by money or by notoriety – neither of which are likely to be forthcoming anyway – but by the most basic desires of all good lawyers: to practice an interesting area of law, to find intellectual and professional challenge, and to have an opportunity to positively influence the development of legal doctrine.

It is impossible to do justice to Jenia’s essay in this short reply. I will thus limit myself to pointing out a few of her more remarkable findings. I was very surprised, for example, by how many of the defense attorneys she surveyed believe that “creating an accurate historical record” is one of the most important goals of international criminal trials – 17 out of 44, only eight fewer than the number of defense attorneys who believe that providing the defendant a fair trial is an important goal. The desire to create a historical record is usually associated with prosecutors, not defense attorneys. Indeed, after reporting her surprising finding, Jenia goes on to explain how, despite their emphasis on the historical record, almost all of the surveyed defense attorneys are more than willing – and rightly so – to aggressively cross-examine victims who are called by the prosecution to “tell their stories,” to impeach the credibility of witnesses whom they believe are telling the truth, and to object forcefully to the admission of evidence that is irrelevant to the criminal responsibility of their clients. There are two possible explanations of that tension, one of which Jenia discusses: namely, that defense attorneys equate “creating an accurate historical record” with ensuring that the defendant’s story is told along with the victims’ stories. The other possible explanation, more psychological, is that defense attorneys simply need to believe that their efforts will serve larger goals than protecting defendants’s rights and (hopefully) ensuring that only the guilty are convicted.

I was also surprised – shocked, really – that only nine out of the 44 defense attorneys view the tribunals as “politicized and slanted in favor of the prosecution.” I would have expected the percentage to be much higher, given the withering scholarly criticism to which the ICTY and ICTR’s jurisprudence has been subjected. Perhaps Jenia is correct to suggest, as she does later in her essay, that in the case of the tribunals familiarity actually breeds respect instead of contempt.

Finally, I was surprised by the acquittal rates that Jenia calculated – 14.5% at the ICTY, and 15.6% at the ICTR, figures that are apparently higher than the acquittal rates in U.S. federal courts and courts in France and Germany. Once again, we see the ability of careful empirical work to dispel widely-held stereotypes: most ICL scholars that I know, myself included, think of international acquittals as being few and far between. Nothing, it turns out, could be further from the truth – especially when we take partial acquittals into account, as well. Jenia reports that ICTY defendants were acquitted of 206 out of a total 475 counts, an amazing 43%.

Now for my criticisms. First, I would take issue with Jenia’s claim that the ICTR’s ongoing trials are not “particularly devoted to… providing a historical record.” As she notes elsewhere in the essay, defense attorneys and scholars are rightfully apoplectic over the Appeals Chamber’s recent decision – in Karemera et al. – that trial chambers must take judicial notice of a nationwide campaign genocide in Rwanda in 1994. As I have explained elsewhere, that decision is indefensible from a legal perspective: the existence of a nationwide campaign of genocide is at best irrelevant, and at worst extremely prejudicial, to the criminal responsibility of individual defendants. The Karemera decision thus only makes sense as a conscious – and political – decision by the ICTR to try to ensure that future generations never forget that the 1994 genocide was perpetrated on a systematic and nationwide scale. (Which it clearly was.)

Second, although Jenia goes to great lengths to distinguish what she calls the “legal” and “political” conceptions of international criminal trials, she occasionally blurs the line between them. Consider, for example, this statement: “[i]f defense attorneys thought their clients had no good factual defenses, they would probably focus their energy on other ways to gain victory – relying more heavily on procedural tactics to obtain charge dismissals, bargaining to get lower sentences for their clients, or challenging proceedings on purely legal or political grounds.” I am not sure why Jenia lumps the legal and the political together here, because there is certainly nothing illegitimate, or even questionable, about challenging a proceeding on legal grounds. Indeed, it would be a breach of the defense attorney’s professional ethics not to do so, if she believes that a legitimate legal challenge exists.

Third – and I feel a bit guilty writing this – I can’t help but feel that to some (very) small extent Jenia shares the dismissive attitude toward defense attorneys that her essay so convincingly critiques. The statement quoted above is one example: perhaps I’m being oversensitive, but Jenia’s counterposition of “factual defenses” with “procedural tactics” seems to subtly imply that the former is somehow more legitimate than the latter. Nothing could be further from the truth: not only is there is no shame in proving that your client is legally innocent instead of factually innocent, proving legal innocence contributes to the progressive development of ICL doctrine in a way that proving factual innocence cannot.

Nor is that the only example. I am even more troubled by this statement: “[i]t is likely that, when defense attorneys refrain from political arguments, they are simply making a strategic decision.” In one fell swoop Jenia undermines much of the good work her essay does to dispel the stereotype of defense attorneys as political grandstanders. And unnecessarily so: nothing in her essay indicates that defense attorneys are being disingenuous when they say that they do not believe in politicizing trials. And that includes the interviews to which Jenia cites at this point in her essay (note 214) – neither statement suggests that defense attorneys refrain from political arguments only because they don’t think they will be successful.

Finally, I strongly disagree with Jenia’s claim that the tribunals’ Completion Strategy “has led to some positive developments for the defense.” She does not cite to any statements by defense attorneys here, and for good reason: I doubt that any of the attorneys she surveyed share her opinion. Trimmed indictments, (a bit) less cumulative evidence, and speedier trials only marginally benefit the defense, and those benefits are vastly outweighed by the costs that Jenia mentions, particularly limits on the defendant’s right to confront witnesses and to prepare an effective defense. Moreover, Jenia fails to mention the Completion Strategy’s most significant cost: the possibility of having a case transferred to a Rwandan court. As many scholars have pointed out (including me), neither ordinary Rwandan criminal courts nor gacaca courts are likely to provide defendants with even the barest semblance of a fair trial

In the end, however, these are minor quibbles. This is an exceptional essay, one that everyone interested in international criminal law – scholars, prosecutors, judges, and defense attorneys alike – should read.

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