Chapter 23 Advocacy in International Criminal Courts

As at the date of this third edition, I have since January 2013 returned to domestic practice in London, after eight years on the international circuit.

I have taught advocacy at all the international tribunals, worldwide, and have practised at the ICTY, the ICTR, and at the STL.

International criminal courts are growing. They deal with genocide, crimes against humanity, war crimes, and terrrorism.

We call this work, international criminal law, or ‘icl’.

What are the tribunals?

Well, there are two ad hoc tribunals created by the UN in the 1990s - for the former Yugoslavia in The Hague (ICTY), dealing with the Balkan wars of the 1990s, and for Rwanda in Arusha, Tanzania (ICTR), dealing with the genocide of one million Tutsi in 1994.

In The Hague, there are also:

the International Criminal Court (ICC),

the International Court of Justice (ICJ), and

the Special Tribunal for Lebanon (STL).

In addition, there are local courts with international input. I call these ‘internationalised’ courts.

Best known are the war crimes courts in

Bosnia,

Kosovo,

Iraq,

East Timor, and Cambodia.

In Freetown in Sierra Leone, there has been an internationalised court, known as the Special Court of Sierra Leone (SCSL), whose last case, concerning the former President of Liberia, sat in The Hague, partly in the ICC and partly in the STL.

I thought readers might like a taste of the advocacy challenges presented in these new international arenas.

There are of course - you know me by now - ten.

The first challenge is the mix of the inquisitorial with the adversarial style.

In the UK, and throughout the US and the present and former Commonweatlh, the court embraces adversarial advocacy. In serious cases, a judge rules on the law while the facts are mostly found by a jury. The presentation of evidence is controlled by the prosecution and by the defence.

On the continent of Europe, and throughout the former latin and francophone colonies, and former and present communist countries, the courts tend to embrace a more inquisitorial style. While there is prosecution and defence, the proceedings of law and evidence are completely controlled by the judge. He decides from a dossier of all information gathered on a case what evidence to hear live, and mostly controls what questions will be put to witnesses, often asking the vast majority of questions. Cross­examination is not allowed, as it is thought it might erroneously place suggestions in the mind of the witness. Essentially, the judge finds the facts, and is active in inquiring into the truth of a matter, asking himself whether a suspect who appears to be guilty is in fact beyond reasonable doubt guilty.

In international criminal courts, judges and lawyers are drawn from around the world from both systems. This daily creates very different perspectives on how best to proceed in trial.

Although there are some variations, the international system is essentially adversarial, with the prosecution and defence deciding what evidence shall be called. Cross-examination is allowed. However, the court is presided over by a bench of usually three judges, of sometimes mixed international and local background, who also find the facts.

Any advocate needs first and foremost to know the background of his three judges. In this way, submissions and questions can to some extent be tailored to the expectations of the bench.

In five trials in three tribunals, I have observed judges from Scotland, Jamaica, Korea, St Kitts in the Caribbean, Lebanon, Burkina Faso, Denmark, Ghana, Argentina, Australia, Pakistan, Norway, Sweden, Switzerland, the Czech Republic, Cameroon, and Kenya.

It's quite a mix, and is enormously interesting.

In fact, the mix makes it the best job in the world.

Time is precious in the courtroom, where events of magnitude are considered, and there is not enough time available to hear absolutely everything which might conceivably be relevant.

It is difficult to keep things short.

But this is what is needed - keep the evidence as short as possible.

The Rwanda genocide embraces three months of slaughter throughout the country. The Balkan troubles embrace four wars involving three countries and NATO in seven years.

Your average UK burglary or murder is usually one event relating to limited victims with limited defendants on limited dates. Such trials are generally short.

International trials are long. There is so much evidence that it is sometimes difficult to know where to start, what to say, and when to stop. Trials always last many months, and often years.

This means an advocate must have a good nose for what really matters, and what lies at the heart of a case, rather than what is interesting but peripheral. A trial should be about guilt, not history. These lines can blur.

AT ALL TIMES FOR AN INTERNATIONAL ADVOCATE,

THE FOREMOST QUESTION IS:

Ifprosecuting, does this fact offer proof of guilt?

If calling defence evidence, does it suggest innocence?

If neither, exactly why call it?

If the advocate is not sure, then it is generally not relevant.

It is not the other way around, namely I will call it unless I am sure I should not.

I repeat: if the advocate is not sure, then it is generally not relevant.

This is the second challenge - determining what is relevant in order to keep things short.

You must pay very careful attention to this. Often advocates prosecuting and defending work in teams, so that everyone’s work is constantly reviewed by others. This can lead to advocates erring perhaps far too much on the side of caution for fear of criticism from colleagues. In this way they will hesitate to drop a fact from evidence in case someone else might think later it could have been helpful. As a result, a lot of irrelevant material ends up being gathered, taking up valuable court time, and not determinative of any issue, but only offered so the advocate can... well... cover his back.

Remember courage. You need this.

Don’t be afraid, after listening carefully to colleagues, nevertheless to stand by your judgment and drop material.

Because time is precious, legal argument is almost always written, so that court time can be used hearing from witnesses.

The third challenge is therefore that there is a lot of writing.

A style of presentation has emerged.

A written motion begins by identifying a problem and asks for a remedy.

It then refers to the law. This can be found in a tribunal’s rules of procedure and evidence and in the many authorities created by the Judgments and interlocutory Decisions of the international courts. Legal precedent in the ICTY and ICTR is mutually binding, as both share the same Appeals Chamber, while if international precedent is decided elsewhere it is considered persuasive.

The legal references must all be carefully footnoted.

The motion then discusses the facts of the problem and why the law fits the facts.

Finally, there is a prayer, seeking that the tribunal adopts the remedy sought.

The other side responds, which then leads to the applicant’s reply.

Written advocacy takes up considerable time and often is required outside court sitting times, so that an advocate’s working hours can be very long.

In time, the chamber issues a written Decision or Judgement.

Because almost all legal applications lead to written submissions, there are a lot of fillings, stored in a database, including the decisions, which are collectively referred to as the ‘jurisprudence’.

To my mind, the leading works on the jurisprudence of the international courts are:

Archbold S International Criminal Practice, and BlackstoneS International Criminal Practice.

There are many other works, while the jurisprudence is changing rapidly, yet these have collated the most information each in one work.

The fourth challenge is the jurisprudence is voluminous and can be complicated.

Judgments in trials and on appeal often run to hundreds of pages. And there are hundreds of interlocutory Decisions.

Indictments are long.

They lay out the charges, and often summarise facts in a growing jurisprudential legalese. There is not much in the style of an ‘opening note' where the bench is offered a complete review of what evidence it is thought will emerge.

Usually, there are many charges which appear to allege pretty much the same thing. For example, genocide, conspiracy to commit genocide, complicity in genocide, and incitement to commit genocide. There are subtle differences, but what has emerged is an approach by jurists that the differences make the charges mutually different, when factually they overlap, and I do wonder whether less is more, and that we might simply charge less but more robustly.

Aiding and abetting is a specific mode of participation in an offence which is different to being the principal, whereas in the UK, that difference has been abolished, and is relevant only to sentence. Other modes, requiring separate pleading, are planning, instigating, ordering and committing an offence, or being a superior to others who participate in the above modes. I do wonder whether modes of participation ought to be less legalistic in the international courts. They are in essence simply the factual method of participation, and may not need to be so separately legal.

Another mode of participation is in a joint criminal enterprise, or JCE. It is difficult to define, as it refers to being a member of a group with a common criminal purpose, and how a defendant participates in that purpose is arguably without clear parameters.

The pleading of indictments has become very complicated. It may be that in time, there will be a return to greater simplicity. A good example of the trend toward the clarity of simplicity is the indictment against the former President of Liberia, Charles Taylor.

As for the judgments, long though they are, they are fascinating if heartbreaking - learn from them.

There may be a problem to consider. As there are so many Decisions to write, they are often written not by the judges, but under varying degrees of supervision by their legal officers, who have a high turnover, and who often begin straight out of university, with little experience yet of life and of practice. It can lead to over-long writing, and inconsistency between Decisions. It is all good work, but the icl community may need to monitor this.

The answer may be that the filing of motions should be discouraged, and more Decisions, on procedural matters, could be issued by the bench at trial, rather than there being such voluminous separate after-hours satellite litigation.

And any written arguments should generally be limited perhaps to, let's say, three pages. Tops. If a point cannot be made succinctly, it is probably nonsense. And if a filing needs to be longer, there could be an application to extend the page count, with reasons - again, on no more than three pages.

The fifth challenge is document management.

In international trials, truly colossal quantities of documents are available. Governments have often opened up their entire foreign office files to inspection. Reports from varieties of human rights groups multiply. Witness statements grow exponentially. There are video clips, radio broadcasts, and newspaper articles. In addition, there are copious previous and current trial transcripts. And there are military reports.

Then there are translations of all of the above, into French and English.

Three problems arise.

First, an advocate must be able to digest the relevance of lots of material very quickly. ‘Nuff said.

Second, an advocate must be really good with the search engines available in a computer to sift the material into what is relevant. ‘Nuff said.

Third, an advocate must know how to use relevant documents in court. This is not easy. The trouble is documents have to be prepared in their original form, with translations attached.

Paginated bundles are constantly necessary - fresh ones for each witness - to create ease of page reference to assist the bench, the parties, and the witness to follow the advocate.

Often when referring a witness to a document, the advocate refers to the page in the language of the witness, and must be able to refer to the page in the English and French translations for the judges. When a section of the document is read to the witness, if me, it is read from the English, while the witness follows from the document in his native language, yet what I am saying is simultaneously translated into French and then into the native language: well... you can end up with the simultaneous translation from my English being different when translated into the native language from what appears in the native language document, which can then cause all sorts of trouble.

Moreover, because of the delay in questioning created by simultaneous translation, a witness will often be reading other parts of the native document to what you are reading out, trying to get ahead of you, which can then lead to the witness not answering questions directly, instead trying to draw the attention of the court to what the witness finds interesting rather than the advocate.

The solution? You’ll need lots of highlighters to cross-reference the same sections in the different translations. And above all, keep the section of a document put to a witness short, clear and unambiguous. Find the most relevant sentence, rather than read out a whole paragraph or page. The more you read out, the more likely things will go wrong.

The sixth challenge is disclosure.

This is a big area.

Different advocates from different jurisdictions have different attitudes to what to tell the other side. It can lead to distrust between the parties.

In general, the prosecution is required to disclose statements of its witnesses and anything possibly relevant and helpful to the defence. The grey area is: just what is ‘possibly’ relevant or helpful?

In general, the defence is required to disclose the identities of its witnesses, and while not a formal statement, something of what each will say. The grey area is how much is just enough of what each might say to satisfy the rule while giving away as little as possible.

Another problem is the sheer quantity of disclosure material which must be reviewed. It runs to literally millions of pages. If a party misses something, then if the other side learns it, the usual response is to suggest the ball is being hidden and that there is a measure of professional dishonesty rather than simple mistake.

Disclosure ends up causing lots of unnecessary rows.

Calling a witness is a big task: you need to have identified what is relevant and not peripheral to elicit in evidence, prepared your paginated bundles, thought about translation difficulties which may arise on important questions, and you need to have used your computer skills to ensure you have reviewed all the important documents and made fair disclosure decisions.

What's fair?

I respectfully suggest it is fair to disclose everything unless there is positive reason not to, rather than only disclose where there is positive reason to do so.

Give the other side the benefit of the grey.

Why? Because they will trust you and the trial will therefore run better.

And the judges will trust you too, thankful you have avoided endless tedious heated written disclosure arguments. They may think you wonderfully sensible, which will allow you later to be very persuasive indeed.

I have mentioned simultaneous translation and we need to consider this further

It makes a significant difference to witness examination in an international court.

Usually the language of the advocate is different from the language of the witness.

And sometimes from judges on the bench, and advocates opposite.

Sometimes even within your team.

Moreover, international courts usually as a matter of principle translate everything into English and French, being the official languages of the UN.

This means there are often three languages in play: I speak English, and am translated into both French and the local language. In the Rwanda tribunal, English goes into French, and from French into Rwandan, while the answer in Rwandan goes back into French and then into English.

It is not unusual to ask an open question, like ‘where did the massacre occur?’ to which the answer coming back is ‘yes'.

So you have to think.

You have to turn in your mind how the question might be translated, being sympathetic to the strain on the translators.

Is the question clear? Is it short? Is it unambiguous? If not, you lose control, because the witness may not hear the question you have asked, and answers something different.

Perhaps obviously, it is very useful to speak some French, and anticipate how the question will translate.

It follows the seventh challenge of international advocacy, where there is simultaneous translation, is loss of questioning impact.

There are two difficulties.

First, the question takes time to be translated, so that the relationship between an advocate and a witness is distanced. The questions and answers are often separated by an unconversationally-long period of time. Rhythm in the presentation of the evidence is lost.

Second, in cross-examination, the tone and nuance of a question is taken over by the translator, so that if putting something with direct robust steeliness, it may however be offered to the ear of the witness by the translator in an uncertain and sometimes hesitant tone, as the translator himself is uncertain of your meaning. The witness may now think you are asking for information, rather than using bounce, or putting an indisputable fact, so that the witness begins a discursive answer. Control over a cross­examined witness is tricky, and answers are more often longer in the international arena than domestically.

The solution, as in any domestic court, but perhaps ever more importantly in an international court, is to keep questions short, clear and unambiguous, so they can be quickly translated, with more of the advocate’s tone more accurately conveyed, and consequently more quickly and concisely answered.

The eighth challenge can be the intervention of the bench.

In some trials the bench is reserved and allows the advocates to play out the evidence. In others, perhaps where the bench has judges from the inquisitorial school, there can be significant intervention during questioning.

Sometimes a judge becomes interested in a line of questioning and pursues it proprio motu. To an extent, the role of the advocate has been overtaken. A line from the bench might be pursued with open questions, which then become leading questions, and the line between direct and cross­examination can blur. An advocate needs to be alive to assisting the judge with the direction of his enquiry once permitted to resume control from the judge, while at the same time settling a witness who may otherwise have become surprised to have been engaging the bench directly. All-round sensitivity is the key.

The ninth challenge is fitness.

No kidding.

The volume of reading is huge. Then the hours in court are long - often the courts will sit from 9am to 5.30pm, with 90mins for lunch. Judges and advocates often address the court in French, requiring concentration if listening in French, and even more if listening to the English translation, which can sound disengaged from the speaker. Questioning witnesses while thinking of how questions may be interpreted and at the same time controlling the witness in the translation delay requires constant monitoring. Then after court, there is usually written work.

You have to be fit to get through it all.

And it's every day, with work at weekends.

So go to the gym.

And now to the tenth challenge - fraternisation.

It is unfortunate that generally in international courts the prosecution, defence, and bench do not often mix.

The bench is perhaps concerned that the advocates might seek indelicately to raise trial matters privately. And the advocates, coming from different professional backgrounds, and therefore not familiar with their opposition’s different approaches, often fall out - little is agreed, with witnesses often unnecessarily called who might better have been read.

At the Bench and Bar of England and Wales, we have 700 years of fraternization.

IT IS A GLORY.

Advocates learn from mixing with judges how the judicial mind works, that judges are real people too, and so an advocate’s approach in court can improve and be better tailored to the expectations of the bench, speeding up the trial, and allowing readier persuasiveness.

Advocates learn from mixing with their opposition what problems beset each other, see each other’s cases through each other’s eyes, and learn to trust each other so that decisions can be taken mutually which assist the trial process. More than this, they improve their performance, they stretch themselves, by learning from each other, borrowing good ideas, and learning from the other what might be bad ideas. The robing room is a powerful and continuing university in the lifelong study of advocacy.

May I respectfully suggest A CALL TO ARMS to all from the London Inns of Court, no matter in which Commonwealth country you have then practised: if you are now before the international criminal courts, bring those 700 years of fraternisation with you.

Arrange dinners and soirees, inviting the bench and opposition. Help our colleagues to feel comfortable with each other, and with the social and professional rules of entertaining the judges off the bench. I have had some modest fraternization success at the Rwanda tribunal, working closely with two other members defending from the English Bar. Let’s keep it up.

Spread the word, and help spread our glorious tradition.

Finally, if you find yourself in an international court, please let me know - it’s a small world and readers of The DeviTs Advocate should know each other, and so form an unofficial robing room, through email and calls, in which to continue to test ideas and improve our skills.