Defense Perspectives on Law and Politics in International Criminal Trials
Many thanks to Opinio Juris and the Virginia Journal of International Law for hosting the symposium and inviting me to participate, as well as to Kevin Heller for agreeing to comment on my article.
The article addresses a fundamental question about the purposes of international criminal trials: Do international criminal trials serve primarily legal purposes, similar to the objectives of domestic trials, or do they serve primarily political purposes, such as helping communities heal and compiling an accurate record of the past? The article examines this question through the perspectives of an overlooked, but important, participant in these trials—the defense attorney. Through personal interviews, scholarly articles, and case law, I analyze the attorneys’ motivations, strategies, and tactics in representing defendants at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In particular, I ask whether defense attorneys believe that international criminal trials serve primarily adjudicative or primarily political purposes.
The survey finds that defense attorneys believe that these trials are much farther from being constructed primarily to satisfy political purposes and much nearer to being truly adjudicative proceedings whose crucial function is to separate those who are blameworthy from those who are not. Defense attorneys believe that a good number of their clients are innocent and that acquittals are possible. Their perceptions, I argue, are not merely inevitable products of their role, but are supported by an increasing number of acquittals, dismissals, and vigorous debates about liability doctrines and rules of procedure. Finally, and contrary to some perceptions, most defense attorneys do not view political statements or attacks as appropriate tactics in international criminal trials and instead focus on factual and legal challenges to the prosecution’s case.
The perceptions of those who participate in the trials say something about what kind of proceedings these are. Even as international trials retain their unique political importance, the attitudes of those actually engaged in them reflect their character as increasingly adjudicative proceedings, with separation of the guilty from the innocent as the central purpose. Importantly, as key players in the trials, defense attorneys not only reflect, but also influence the proceedings, shifting them toward the adjudicative model.
Of course, fully contested, adversarial trials serve both legal and political purposes. But to the extent that these purposes occasionally come into conflict –where, for example, political purposes such as efficient closure and establishment of a historical record might recommend one set of procedures, and classic legal principles might recommend another –the debate becomes important. If international criminal trials increasingly serve the same adjudicative purposes as domestic trials, then the procedures of the tribunals and the actions of the participants will adjust accordingly. The perceptions of defense attorneys provide a signal that international criminal trials are moving in this direction.