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Drawing the Missing Map: What Socio-legal Research Can Offer to International Criminal Trial Practice

Published online by Cambridge University Press:  08 November 2013

ROSEMARY BYRNE
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Abstract

The nature of international criminal trial practice is integral to the perception of the legitimacy of international criminal justice. However, our understanding of what transpires within the trial chambers of international courts and tribunals (ICTs) comes primarily from the reports of judges, lawyers, and stakeholders within the system. This article argues that, while the vast body of international criminal justice scholarship barely draws on socio-legal research, empirical work can contribute to a more objective understanding of international criminal trial practice. It examines prevailing academic approaches to the study of international trial practice as a backdrop to the assessment of data from one of the most expansive empirical studies of international trial practice, undertaken during the second mandate (1999–2003) of the International Criminal Tribunal for Rwanda (ICTR). The findings illustrate significant variations in how judges in different Trial Chambers chose to exercise discretion, revealing the co-existence of two distinct modalities of practice in ‘proactive’ and ‘reactive’ Trial Chambers. Quantitative and qualitative data allow for an assessment of the efficiency of these modalities, revealing the critical role of the performance of the judge in the trial process. It is argued that these findings highlight the potential for further socio-legal research to motivate ‘light-touch reform’ within the international criminal justice system.

Keywords

international criminal trial practicejudgesInternational Criminal Tribunal for Rwanda (ICTR)
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals: Symposium: Expertise, Uncertainty, and International Law
Information
Leiden Journal of International Law , Volume 26 , Issue 4 , December 2013 , pp. 991 - 1007
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

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References

1 See Byrne, R., ‘The New Public International Law and the Hidden Art of International Criminal Trial Practice’, (2010) 25 Conn. J. Int.’l L. 243Google Scholar.

2 The mandates of the ICTR are measured by four-year periods: the first mandate was 1995–99, the second mandate 1993–2003, the third mandate 2003–7, the fourth 2007–11. For an overview of the judicial activity during the first and second mandates, see Møse, E., ‘Main Achievements of the ICTR’, (2005) 3 JICJ 920Google Scholar.

3 Following the delivery of the Charles Taylor verdict by Trial Chamber II of the Special Court for Sierra Leone on 26 April 2012, the following statement is reported to have been made by Alternative Judge Sow from the bench, provoking the walkout of the permanent sitting judges in the trial and the turning off of his microphone:

The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won't get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.

The statements of Judge Sow that were reported by witnesses in the public gallery were largely ignored by the general media. The controversy was discussed on international criminal law blog sites, including: www.internationallawbureau.com/blog/?p=4714; www.intlawgrrls.com/2012/04/judge-sows-struck-statement-reflections.html; humanrightsdoctorate.blogspot.fr/2012/04/charles-taylor-judgment-suggests-more.html; humanrightsdoctorate.blogspot.fr/2012/05/more-on-removal-of-judge-sow.html.

4 J. Shklar, Legalism: Laws, Morals, and Political Trials (1986), 144.

5 For two different approaches to comparative trial research that are framed by this metaphor, see S. Bedford, The Faces of Justice: A Travellers Report (1961); and M. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986).

6 D’Aspremont, J. and de Brabandere, E., ‘The Complementary Faces of Legitimacy in International Law: The Legitimacy of Origin and the Legitimacy of Exercise’, (2011) 34 Fordham Int’l L.J. 190Google Scholar; Cassese, A., ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice’, (2012) 25 JICJ 491Google Scholar.

7 See Bibas, S. and Burke-White, W., ‘International Idealism Meets Domestic-Criminal-Procedure Realism’, (2010) 59 Duke L.J. 637Google Scholar, 660–7 (arguing that ICTs are staffed ‘exclusively’ by international idealists, creating the need for a broader range of viewpoints within the international criminal justice system to guarantee the system's integrity).

8 For recent studies on international trials using quantitative and/or qualitative methods see Langer, M. and Doherty, J., ‘Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms’, (2011) 36 Yale J. Int’l L. (2011), 241Google Scholar; N. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010). Several excellent studies and reports have relied extensively upon qualitative research methods, reflecting the perspectives of international criminal practitioners. These include, Turner, J. I., ‘Defense Perspectives on Law and Politics in International Criminal Trials’, (2008) 48 Va. J. Int’L L. 529Google Scholar.

9 For instance, the Human Rights Report analysis of the Charles Taylor Trial omits any mention of the proclamations of Judge Sow, supra note 3. While his statements have no formal legal significance, from the vantage point of an advocacy organization seeking to celebrate and constructively critique international justice, a reference to this credibility-impairing episode could be seen to undermine its objectives. See Human Rights Watch, ‘Even a “Big Man” Must Face Justice: Lessons from the Trial of Charles Taylor’, 25 July 2011, www.hrw.org/sites/default/files/reports/sierraLeone0712ForUpload.pdf.

10 The trials observed were: Ferdinand Nahimana et al. v. Prosecutor, Judgement, Case No. ICTR-99-52-A, 28 November 2007; Prosecutor v. Ferdinand Nahimana et al., Summary, Case No. ICTR-99-52-T, 3 December 2003; Prosecutor v. Ignace Bagilishema, Judgement, Case No. ICTR-95-1A-T, 7 June 7 2001; Prosecutor v. Juvénal Kajelijeli, Judgement and Sentence, Case No. ICTR-98-44A-T, 1 December 2003; Prosecutor v. Jean de Dieu Kamuhanda, Judgement and Sentence, Case No. ICTR-99-54A-T, 22 January 2004; Prosecutor v. André Ntagerura et al., Judgement, Case No. ICTR-99-46-T, 25 February, 2004; Prosecutor v. Laurent Semanza, Judgement, Case No. ICTR-97-20-T, 15 May 2003; Prosecutor v. Elizaphan & Gérard Ntakirutimana, Judgement and Sentence, Case No. ICTR-1996-10 & ICTR-1996-17-T, 21 February 2003; Prosecutor v. Pauline Nyiramasuhuko et al., Judgement and Sentence, Case No. ICTR -98-42-T, 24 June 2011.

11 1945 London Charter of the International Military Tribunal at Nuremberg, 82 UNTS 279; 1946 International Military Tribunal for the Far East [IMTFE] Charter, 4 Bevans 21 (as amended 26 April 1946); SC Res. 955, Annex, UN Doc. S/RES/995 (1994). See Wallach, E. J., ‘The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide an Outline for International Legal Procedure?’, (1999) 37 Col. J. Transnat’l Law 851Google Scholar.

12 In the 1999 report on the ad hoc tribunals, the Expert Group noted the need for the bench to better regulate the conduct of counsel. However, there were conflicting perspectives on the appropriate role of the bench in cutting off, limiting, or engaging in witness examinations. Chairman of the Advisory Committee on Administrative and Budgetary Questions, Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634 (1999) (hereinafter UN Expert Group Report), paras. 76–77. The 2012 Human Rights Watch report on the lessons of the Charles Taylor Trial criticizes the limited management/interventions in examinations by Trial Chamber II of the SCSL, and recommends that in future trials the bench should focus testimony as this may contribute to more expeditious proceedings without compromising international fair-trial standards, supra note 9, at 7, 28.

13 See Rules of Procedure and Evidence (adopted 29 June 1995, as amended), Consolidated Text of 14 March 2008 (hereinafter ICTR Rules); Rules of Procedure and Evidence IT/32/Rev. 37 (6 July, 2006) (hereinafter ICTY Rules); See generally Rules of Procedure and Evidence IT/32/Rev. 37 (6 July 2006) 1998 Rome Statute of the International Criminal Court Art. 1, 2187 UNTS 3, 37 ILM. 999, Art. 64; Rules of Procedure and Evidence, Doc. ICC-ASP/1/3 R. 69, 91, 140 (9 September 9 2002) (hereinafter ICC Rules).

14 For a discussion of the ‘constructive ambiguity’ of the ICC procedures adopted by the Rome Statute, see Kress, C., ‘The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise’, (2003) 1 JICJ 603, 605–6Google Scholar.

15 As of 11 March 11 2012, of the 18 judges of the ICC, not a single judge had acted as the presiding judge at a trial at any of the ICTs prior to being elected to the bench. Two candidates had served as permanent, but not ‘presiding’, judges at the ICTY: Judges Van Den Wyngaert (Belgium) and Howard Morrison (UK) (who also served as a judge for the Special Tribunal for the Lebanon); and one as an ad litem at the ICTR, Robert Fremr (Czech Republic). Two additional judges have experience as counsel and/or working within chambers at the ICTR and ICTY. Prior to assuming judicial office in The Hague, neither the current president of the ICC, nor the two serving vice-presidents had any prior judicial experience at any of the ICTs. For the biographical notes on current serving judges at the ICC see www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Chambers/The+Judges.

16 Bibas and Burke-White, supra note 7, 664.

17 See Rome Statute, supra note 13, Arts. 64, 69(3). These provisions reflect the developments in the context of the ICTR and ICTY regarding the powers of the judge, in particular Rule 90(G) of the ICTR Rules, and Rule 90(F) of the ICTY Rules, which provide that the Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence. ICTR Rules, supra note 13, R. 90(G); ICTY Rules, supra note 13, R. 90(F). Rule 98 of the ICTR and Rule 98 of the ICTY Rules grant the chambers the power to order the production of admissible evidence. ICTR Rules, supra note 13, R. 98; ICTY Rules, supra note 13, R. 98. See generally Terrier, F., ‘Powers of the Trial Chamber’, in Cassese, A., Gaeta, P., and Jones, J. (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 3 (2002) 1259Google Scholar, at 1272.

18 The Rome Statute provides the possibility for victims to participate personally or through a legal representative in the procedure relating to the trial of accused persons, and provides a right to victims to make an order for reparations against the accused. Rome Statute, supra note 13, Arts. 19(3), 68(3), 75; ICC Rules, supra note 13, R. 89–99. Similar provisions related to the roles and rights of victims are absent from the statutes and rules of the ICTR and ICTY, aside from the possibility of obtaining restitution for property. ICTR Statute, supra note 12, Art. 23(3); ICTY Statute, supra note 12, Art. 24(3); ICTR Rules, supra note 13, R. 85, 106; ICTY Rules, supra note 13, R. 85, 106.

19 Byrne, supra note 1, at 255–7.

20 Orie, A., ‘Accusatorial v. Inquisitorial Approach in International Law Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings before the ICC’, in Cassese, A., Gaeta, P., Jones, J. (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 2, 1439–97Google Scholar; Bourgon, S., ‘Procedural Problems Hindering Expeditious and Fair Justice’, (2004) 2 JICJ 526, 530–1Google Scholar; May, R. and Wierda, M., ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha’, (1998–1999) 37 Colum J. Transnat’l L. 725Google Scholar; Amann, D. M., ‘Harmonic Convergence? Constitutional Criminal Procedure in an International Context’, (2000) 75 Ind. L.J. 809Google Scholar.

21 Langer, M., ‘The Rise of Managerial Judging in International Criminal Law’, (2005) 53 Am. J. Comp. L. 835, 869–70CrossRefGoogle Scholar. For an alternative paradigm for international evidentiary processes, see Jackson, J., ‘Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Accusatorial–Inquisitorial Dichotomy’, (2009) 7 JICJ 17.Google Scholar

22 Byrne, supra note 1, 253–5.

23 J. Jackson and S. Doran, (1995) Judge without Jury: Diplock Trials in the Adversary System, at 7–8.

24 Ibid., at 207.

25 M. Langer, supra note 21.

26 Ibid., at 836, 874–6; see generally Resnik, J., ‘Managerial Judges’, (1982) 96 Harvard Law Review 374CrossRefGoogle Scholar.

27 Langer, supra note 21, at 837, 857–8.

28 Ibid., at 873–4.

29 Ibid., at 888–9.

30 Langer and Doherty, supra note 8, 243.

31 L. V. Prott, The Latent Power of Culture and the International Judge (1979), 157.

32 Byrne, R., ‘Promises of Peace and Reconciliation: Previewing the Legacy of the International Criminal Tribunal for Rwanda’, (2006) 14 European Review 485CrossRefGoogle Scholar, 487–8.

33 See generally Harmon, M. B., ‘The Pre-Trial Process at the ICTY as a Means for Ensuring Expeditious Trials: A Potential Unrealized’, (2007) 5 JICJ 377Google Scholar (analysing the increasing reliance on the pre-trial process to enhance communication and efficiency in evidentiary and practice-related matters). More formalized approaches emerging from pre-trial conferences include decisions adopting guidelines on the admission and presentation of evidence, as have been rendered in trials by ICTY Trial Chambers I and III. See generally Prosecutor v. Milan Martić, Revised Version of the Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of Counsel in Court, Case No. IT-95-11-T, 19 May 2006; Prosecutor v. Vojislav Šešelj, Order Setting out the Guidelines for the Presentation of Evidence and the Conduct of the Parties during the Trial, Case No. IT-03-67-T, 15 November, 2007.

34 Byrne, supra note 1, 254–5.

35 Rome Statute, supra note 13, Art. 36.

36 Thakur, R., ‘Law, Legitimacy and United Nations’, (2010) 11 (1)Melbourne J. Int’l L. 1Google Scholar.

37 The template for trial observation for this study required that both the standard judicial and counsel objections found within common- and civil-law systems be merged for researchers to record activity within the courtroom.

38 These encompassed four single-, one dual-, and three multi-defendant trials, covering 172 witness examinations conducted by 61 trial attorneys over a period of 1200 hours. Reflecting the imbalance in the representation of common- and civil-law counsel in the legal teams appearing in court, the sample contained 19 lawyers from civil-law jurisdictions and 42 from common-law systems. The trial observation was carried out by researchers from either common- or civil-law backgrounds, all of whom had postgraduate training in law.

39 For an expanded overview of the core findings of this research project, see Byrne, supra note 1.

40 For a more detailed analysis see Byrne, supra note 1, 271–301.

41 Judge Møse directed 81 per cent of judicial interventions directly to the witnesses, and 19 per cent to the counsel. In the Ntakirutimana trial, there were two accused and five trial lawyers: three on the side of the prosecution, and one defense counsel for each of the accused. Byrne, supra note 1, at 277, fn. 127.

42 The Cyangugu trial involved three accused with nine lawyers representing the parties: three on the side of the prosecution and six representing the accused.

43 Langer and Doherty, supra note 8, 274.

44 Byrne, R., ‘Assessing Testimonial Evidence: Lessons from the International Criminal Tribunals,’ (2007) 19 International Journal of Refugee Law 609CrossRefGoogle Scholar.

45 Byrne, supra note 1, at 259, 301 (emphasizing the value of prior international criminal trial experience for judges to effectively anticipate examination questions that compromise witness protection).

46 R. Mackenzie, et al., Selecting International Judges: Principles, Process, and Politics (2010), at 172.