Reflections of My Summer in The Hague
By: Jason D Keck, 3L
Despite the excess baggage fee of 150 Euro and the friendly search at Schiphol, my summer in The Hague has been nothing less than amazing. Currently 32,000 feet above the Atlantic Ocean, I am already starting to miss the often “dreary” weathered Hague. Although I only arrived in The Hague a little over two months ago, as I sit on this plane today, I know that my experiences working with an international criminal defense team representing an alleged war criminal have without a doubt made me a better person, a better student, and eventually, a better lawyer.
The Hague is often referred to as the Capital of International Law. The Hague is home to the International Criminal Tribunal for the former Yugoslavia (“ICTY”), International Criminal Court (“ICC”), International Court of Justice (“ICJ”), International Criminal Tribunal for the atrocities in Rwanda (“ICTR”), The Special Court for Sierra Leone (“SCSL”), and the Permanent Arbitration Court (“PAC”). The hallways of these courts are filled with educated expatriates, distinguished attorneys, and some of the most renowned judges from all over the world. These same expatriates, attorneys, and judges are responsible for shaping International Criminal Law and International Humanitarian Law as we know it today. This shaping is what I learned most this summer, and this shaping is ultimately what I have come to be very critical of.
I had the honor this summer to work as an intern for the criminal defense team of Momcilio Perisic, the former Chief of Staff of the Yugoslav Army in 1994 and 1995 under Solobodon Milosevic. General Perisic was indicted and charged both with crimes against humanity and with violations of the laws and customs of war. In defending General Perisic, I was a member of a team that consisted of 3 attorneys, 4 legal assistants, 9 interns and a case manager. Throughout the summer I had the opportunity and privilege to attend trial, perform complex international legal research, and “undertake” a witness. Undertaking a witness includes briefing the entire team on prior witness testimony or other outside evidence, attending trial, passing questions to the attorney through the ever useful and expansive “g-chat,” and ultimately debriefing the team with a witness summary outlining everything the witness testified to in trial. I also had the opportunity to author an independent research paper comparing aiding-and-abetting liability at the ICTY with aiding-and-abetting liability under American jurisprudence. It was through these experiences that I was exposed to some of the most rewarding, albeit troubling, inner workings of the ICTY.
First, the judges. On this topic, I am only able to speak about the three judges that consisted the General Perisic trial chamber as it was them I was most familiar with and even met. My concerns about the Perisic trial chamber judges, however, seem to be a common theme throughout the ICTY defense hallways regarding other judges in other trial chambers. Presiding Judge M had never sat before a criminal trial prior to his arrival at the ICTY and it was evident. Often confused, Judge M’s court was all too often run with very little cohesiveness and often featured overlapping speakers and a general confusion as to procedure. Coupling this with the fact that every word said in court is at least translated into English, Bosnian/Croatian/Serbian, and French often led to unproductive and seemingly useless days in court. Judge D and Judge P on the other hand were reserved, intelligent, and filled with loaded questions. One aspect of international law at the ICTY is that it is often ran as if it were a civil law system and this is evident when the judges examine witnesses. In American jurisprudence, an adversarial system, the judges are mediators, only asking questions for clarification. At the ICTY on the other hand, the judges are players, and it was evident from day one whose team Judge D and Judge P were on. Judge D or Judge P on more than one occasion posed questions to a witness with the intent of ultimately compelling the witness to answer the way judge wanted - against General Perisic. Overall, my impression of the three judges were that two of the three had made their minds up, and the third, Judge M may not have even been aware he was in court. For a court whose fiscal budget this year exceeded 320 million dollars, the caliber and bias of the judges was truly astonishing.
The second problem is the ability of the accused to build an adequate defense. During my summer in The Hague, the ability, or inability, of the defense to build an adequate case was very frustrating. The problem with an international court such as the ICTY is that in large part, over 160 cases decided over its 14 years of existence are intertwined. The ICTY, like the United States, has a requirement for a “pre-trial” disclosure where the Prosecution gives the defense all documents it intends to use or that disprove the case against the accused. At the ICTY, almost all of the evidence and testimony in earlier cases is relevant to later cases and thus the crux of the problem. As a result, the amount of disclosure given to defense counsel is unbearable. On the day of disclosure in General Perisic’s case, the prosecution turned over 1.3 million documents and hundreds of hours of recorded trial testimony and interviews. With only three to four months to prepare for trial, analyzing these documents is not difficult; it is impossible. This problem also continues throughout trial. For example, Drazen Erdemovic, an individual who admittedly pulled the trigger killing between 200 and 500 Bosnian Muslims at Pilica Farm in Srebrenica on July 17, 1995 and convicted by the ICTY in 1998, testified against General Perisic, 11 years after his conviction. This creates a major problem: Preparing for Erdemovic’s testimony means preparation from not only Erdemovic’s case in 1998, but also every case Erdemovic testified in afterwards, until his testimony in General Perisic’s case. This task is very difficult given that often times the defense counsel only has about 10 days to prepare for a witness. The magnitude of documents and trial transcripts that need to be reviewed in order to prepare for the testimony makes it nearly impossible for the defense to build an adequate cross-examination, and as a result an adequate defense. This is only one aspect of many areas in which an accused’s right to build an adequate defense is discounted.
Another problem with building an adequate defense is the rules of evidence at the ICTY. Hearsay and Relevance in General Perisic’s trial chamber were non-existent. At one point, Novak Lukic, General Perisic’s lead counsel, lost 28 objections in a row, many based on relevancy. This reflected the overall attitude in General Perisic’s trial chamber that evidence was not a question of admissibility, but rather weight. This attitude in large part renders the defense counsel useless, and moreover, is very frustrating from an American trial-practice standpoint. Additionally, hearsay at the ICTY is also non-existent. Despite attending trial on multiple occasions, both formally as a member of the defense team and as a member of the public gallery, I never once witnessed a hearsay objection, even though the ICTY Rules of Procedure and Evidence allow a court to exclude a hearsay objection if it so wishes, even if the statement is clearly hearsay. Rule 89(A) says that a Chamber shall “not be bound by national rules of evidence.” The Rules of Evidence that a criminal defense counsel in the United States relies on so heavily to build an adequate defense are inoperative at the ICTY. This overall attitude allows very little protection to an accused and severely hinders a defense counsel from building an adequate defense, especially in a trial chamber staffed by a majority of civil law judges. This was one of the most difficult differences for me to accept while working at the ICTY, and often was the focus of many conversations amongst our defense team.
The third problem I had with the ICTY is the overall state of the law. During the summer, I had the privilege to author an independent research paper comparing the status of American aiding-and-abetting case law to a parallel provision at the ICTY and concluded that the state of the law at the ICTY is highly speculative, very malleable, and in some instances, outright unfair. Much of my research this summer involved a judgment from the Prosecutor v. Veselin Sljivancanin, IT-95-13/1. Mr. Sljivancanin was a former general in the Yugolsav Army. Mr. Sljivancanin was ultimately sentenced to 17 years by the appeals chamber for murder and torture in violation of the laws or customs of war. In so doing, he was convicted of aiding-and-abetting the murder of 194 individuals in May, 2009.
The first example of the state of the law, and perhaps outside the scope of this reflections paper, is the aiding-and-abetting for which Sljivancanin was convicted. In finding Sljivancanin guilty for aiding-and-abetting murder, the appellate chamber essentially lowered the mens rea requirement to a level consistent with recklessness. In other words, because the appellate chamber was determined to obtain a judgment against Sljivancanin who had only been sentenced to 5 years imprisonment at the trial level, it single handedly changed the law of aiding-and-abetting so that it no longer requires knowledge or intent, but rather only recklessness. This is a specific example that exemplifies a larger issue regarding the law at the ICTY. The larger issue surrounds one of the most fundamental issues that we as law students are hammered with every single day. This being the principle of stare decisis or precedent. At the ICTY, precedent is merely a mirage or a fallacy.
The second example was the single most disturbing thing I witnessed while working at the ICTY. This also stems from the Sljivancanin appeals judgment. At the trial level, Sljivancanin was sentenced to 5 years of imprisonment. At the appeals level, however, the appeals chamber not only lowered the mens rea requirement as mentioned in the preceding paragraph, but also entered a new judgment sentencing Sljivancanin to 17 years imprisonment. This new judgment was denounced in a dissenting opinion by Judge Fausto Pocar. Judge Pocar correctly wrote that “I do not believe that the Appeals Chamber has the power to impose a new sentence on the accused that is higher than that which was imposed by the Trial Chamber.” He continued, “[t]he Appeals Chamber is bound to apply Article 25(2) of the Statute of the [ICTY] in such a manner as to comply with fundamental principles of human rights as enshrined in the International Covenant on Civil and Political Rights (“ICCPR”).” Article 14(5) of the ICCPR provides that “everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” Furthermore, it is widely acknowledged that the Human Rights Committee (“HRC”) has repeatedly stated that it is permissible for a person to be convicted and sentenced by the first time by the highest court in a jurisdiction, but that “this circumstance alone cannot impair the defendant’s rights to review of his conviction and sentence by a higher court.” Thus, the inherent right for a judgment and sentence to be reviewed by a higher court was ignored in the Sljivancanin judgment. The standard of human rights espoused by the United Nations is that a person convicted on appeal following an acquittal at first instance is entitled to a review of his or her conviction by a higher tribunal according to law. It is unjustifiable for the ICTY to adopt a lower standard of human rights, especially given the serious nature of the prosecution and the appeals chamber’s willingness to do so espouses the overreaching attitude of the ICTY to discount a defendant’s inherent fundamental rights is truly appalling.
As an intern, it was very interesting how the overall attitude towards defense teams was often adverse, even from inherently neutral parties. For example, at an intern social early in the summer I had the opportunity to meet interns from the Registry. The Registry is essentially supposed to be a neutral third party in charge of many administrative duties including translations, video streaming, and identity protection of witnesses. In any event, as many conversations began at the ICTY, the intern from the registry asked where I was interning. I informed her that I was a member of the General Perisic defense team. She replied, “oh, we are enemies then.” This attitude was widespread throughout the ICTY. In the halls of the ICTY, red placards are posted on nearly every door excluding defense team members from entering. Instead, every defense team is required to share two rooms equipped with about 30 computers and very little desk space. These 30 computers are hardly enough considering General Perisic defense team alone consisted of around 15 people. Another example of defense teams being behind the “8-ball” is seen in the propaganda of the ICTY. In the United States, the American court logo is the scales of justice, showing equality, blindness, and fairness. The ICTY logo is a picture of two handcuffs, one set of cloth handcuffs used in the massacres at Srebenica and one set of metal handcuffs used at the UN detention facility accompanied with the slogan, “bringing war criminals to justice and justice to victims.” Despite my short time in The Hague, it was readily apparent that the mindset of the world versus the accused began at the top and filtered all the way to the bottom, and even compromised seemingly neutral parties.
As a final note, despite being critical of many of my experiences at the ICTY, I do believe that many individuals have been rightfully convicted and deserved the judgments they received. I do think, however, that in any criminal trial, the rights of the accused should be at the forefront of the trial. If the prosecutors do their job as they are hired to do, then embracing an accused’s inherent fundamental rights will not change the outcome. It is when the trial chamber, the prosecution, the Registry, and the public as a whole discount an accused fundamental rights that I become critical. Of course, civil law judges who preside over cases at the ICTY may strongly disagree with me and thus is why I think international law and the law at the ICTY is so interesting. What I find disturbing from an American standpoint may be acceptable from a French standpoint, or vice-versa. This dichotomy often gives rise to both sides being critical of the other.
Additionally, this summer I had the privilege to observe some of the best criminal trial attorneys in the world, evaluate their style, admire their patience, and above all, learn. My boss, Gregor Guy-Smith is a former California criminal trial attorney who represented such names as The Hells Angel’s, The Crips, The Mexican Mafia, The Columbian Drug Cartel, and other alleged murderers, drug dealers, and pedophiles. His eccentric yet controlled style led to many interesting discussions in which I often felt as if I no longer believed what I initially set on to discuss. This finely tuned advocacy in which he was able to persuade the staunchest of believers into something they once did not believe is a skill set all attorneys strive for. It was a privilege to be in the court, the office, and the home of someone who had such an ability. The Hague has provided me with tools and techniques, criticisms, and arguments that I look forward to someday having the ability to apply in any path I follow.
Finally, Professor Perritt was institutional in allowing me to be in The Hague this summer and I want to thank him.
-Jason D Keck