Defending the Indefensible

Merdijana Sadović

Senior Project Manager

Friday, 18 November, 2005

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The public corridors of the Hague tribunal are adorned with little decoration apart from the occasional peeling poster. They are easy to miss, and their information is contained in tight rows of faces and names. Each shows a series of grainy mug shots - some in colour, some black and white.

These are the people wanted for war crimes, rapes and persecution, accused of orchestrating campaigns of expulsions and mass murder. Below their photos there is a phone number to call with information about the suspects – and the promise of a reward if it leads to their arrest.

Back home, in the former Yugoslavia, many people still refer to them as simply “war criminals”.

“People tend to assume that ‘indicted war criminals’ equals ‘war criminals’,” said defence lawyer John Jones. “They don’t pause to think that these people, too, are still presumed innocent until proven guilty. And some of them are innocent!”

Jones is part of a relatively new profession. The last time lawyers had to turn their hand to defending war crimes suspects brought before an international court was almost six decades ago, at the end of the Second World War, with the Nuremburg and Tokyo tribunals.

But one of the key differences between these tribunals and the UN courts for the former Yugoslavia and Rwanda is the effort to do away with the taint of “victor’s justice” which cast a shadow over the trials of half a century ago.

In this new system of justice, the role of the defence counsel has emerged as one of the most important - and most difficult.

PRESUMPTION OF GUILT

War crimes cases are often long, legally and factually difficult, and very emotional. Most of them involve dramatic testimonies of survivors and witnesses of the atrocities, interspersed with discussions of history, politics and the military issues.

Many of the accused are high-ranking political and military leaders of the Balkan nations which participated in the wars that raged across the region through much of the Nineties. All of them were at one time or another revered and glorified by their respective peoples - and hated, feared and condemned as war criminals by their enemies.

But for Michael Karnavas, a defence lawyer with more than 20 years’ experience in the United States, presumption of guilt is not confined to the war crime suspects - it’s a natural human reaction.

“When was the last time you picked up a paper when somebody was arrested for rape or murder and you said ‘Oh my God, there goes another innocent person, I hope he’s found not guilty!’ It doesn’t happen.”

Until recently, Karnavas had been representing Vidoje Blagojevic, a former Bosnian Serb army officer sentenced to 18 years in prison for complicity in the first genocide on European soil since the Holocaust - the 1995 Srebrenica massacre of some 8,000 Muslim men and boys.

And this presumption of guilt, Karnavas says, sometimes stretches beyond the accused to include the people providing him or her with a legal defence.

“Sometimes, defence lawyers are looked upon as if they represent the cause or the crime itself, not the individual,” he told IWPR.

John Jones, defence counsel for Naser Oric, wartime commander of Muslim forces in Srebrenica, recalls a similar experience. In a recent conversation with someone from the Hague tribunal, the London-based barrister was told that “it must be difficult to defend war criminals”.

“I was really surprised that there was this attitude,” he said.

The defence teams at the UN court often comprise international as well as domestic counsels from the former Yugoslavia. The domestic lawyers are more familiar with the history of the region, its politics and geography, and have a wider network of contacts there. The international defence counsels have the advantage of having worked in the court’s official languages – English or French – and can sometimes bring better knowledge of the tribunal’s procedures.

The defence lawyers from the countries of former Yugoslavia sometimes have a different set of prejudices to deal with. Back home, many of them are seen as heroes.

“Defence lawyers from the former Yugoslavia are often perceived as saviours in their home countries,” said Goran Rodic, a defence counsel from Montenegro who has worked on three different trials at the tribunal in the past five years.

That prejudice parallels the way that the former Yugoslav populations generally view indictments against war crimes suspects and the judgments of the tribunal through the prism of their own ethnic affiliation.

THE IMPORTANCE OF BEING EARNEST

Aside from this kind of prejudice, many of the defence counsels at the tribunal find the pressure enjoyable.

South African and UK lawyer Rodney Dixon, who worked at the tribunal’s prosecutor’s office for several years before joining a defence team, said, “[Defence] is more challenging – you are dealing with an individual whose liberty is at stake, and the pressures and challenges of that are much more intense.”

Dixon, who is currently co-counsel for Bosnian Muslim army officer Amir Kubura, said that while working as a prosecutor he missed the relationship with a client - the critical focus of a defence lawyer’s work. The main challenge, he told IWPR, is to represent one’s client to the best of one’s professional abilities - if a defence lawyer does not do this, the client is directly affected.

Tribunal sentences can be heavy. Bosnian Serb general Radislav Krstic was sentenced to 46 years for genocide, which was reduced to 35 years on appeal. Croatian general Tihomir Blaskic initially received a sentence of 45 years, but at the appeal the defence presented new evidence in the defendant’s favour, leading the judges to reduce his sentence to nine years.

The maximum punishment at the tribunal is life imprisonment. But this has been meted out only in one case so far – that of Milomir Stakic, the leading Serb political figure in Prijedor, who was found responsible for killings and atrocities there in 1992. The sentence has still to be confirmed on appeal.

The tribunal uses a unique hybrid system, which combines aspects of both common law and civil law. All the lawyers have to adjust to this, regardless of their background.

Chrissa Loukas, who until recently defended Momcilo Krajisnik, a Bosnian Serb leader indicted for genocide, believes the hybrid system itself may be at fault for tilting the balance in favour of the prosecution.

“Sometimes defence lawyers feel that we end up with the worst of both systems without the protection of either,” she said.

In common law systems, and at the tribunal, the cut and thrust of cross-examination plays a key role. Lawyers from the former Yugoslavia are more used to the civil law system which allows the judge a greater role.

“A defence lawyer at the tribunal has a much more important role during the proceedings than he would have in Serbia, for example,” said Belgrade-based lawyer Slobodan Stojanovic, who defended Zoran Zigic, a Bosnian Serb taxi driver from Prijedor, who was recently sentenced to 25 years in prison for the murder and cruel treatment of Muslim detainees in the Omarska camp.

“In our [Serbian] system, lawyers are undermined and entitled to very limited and narrow questions, while here we can be much more aggressive,” he told IWPR.

This aggression can be controversial, and defence teams are sometimes criticised for going too far in the way they deal with witnesses.

Prosecuting lawyer Stephan Waespi believes a robust and responsible cross-examination can be “very healthy and enlightening” for all parties involved. But he warned that since war crimes cases are “all about victims, many of whom have lost everything in their lives”, everybody involved in proceedings - including defence teams - have to find a responsible approach in dealing with the victims who come to testify.

WHOSE SIDE ARE YOU ON?

In the UK, for example, defence counsels are subject to a so-called cab-rank rule, which means that a lawyer is obliged to defend whoever comes to him whether he likes it or not. If it is in the lawyer’s competence, he is professionally obliged to take a case.

Of course, no cab-rank rule could apply at the tribunal where lawyers come specially to work for clients, but some defence counsel still adhere to it.

For Rod Dixon, for instance, it is irrelevant whether he believes his client to be innocent or not. “I take my cases as they come, look at the evidence that is against that person and from that advise my client,” he said.

But Jones said that working at the tribunal gives him the luxury of making his own decisions. War crimes trials are different, he told IWPR, because they involve nations at war, not just individuals – and for him that makes a difference when choosing whom to defend.

“I can decide whether I wish to defend a Bosnian Serb general accused of orchestrating grave crimes in pursuit of a greater Serbia project, or to defend, for example, a Bosnian who fought back and resisted that project,” he said, adding that he chose the latter type of case, because it coincided with his personal beliefs.

“In a trial in The Hague, it is inevitably more gratifying if you are sympathetic to your client's cause – that is, if you believe that he was engaged in a just war rather than an unjust one.

“Having said that, I would absolutely defend any client with all my powers.”

The issue of guilt in the tribunal is often more complex than just proving the crimes took place, and involves measuring the exact role of the accused in sometimes mass killings.

Karnavas also believes that it is his duty to represent someone no matter what the evidence against that person might be. But he qualifies that by saying “the nature of the crimes” involved may make it difficult.

“I have to look at my own heart to see whether I am able to defend that person as best as I can,” he said.

While having no doubt that the crime took place, one can still believe his client’s role in it was less than what is alleged in the indictment, said Karnavas.

However, he said that a lawyer’s stress levels are higher when representing a client that he or she absolutely believes to be innocent. “It’s a curse,” he said. “There is a tremendous amount of pressure and anxiety in making sure that every decision you make is the right one.”

EQUALITY OF ARMS

A continuing feature of life at the tribunal for some defence counsels is their sense of imbalance between what is provided for the prosecution to do their work, and what is available for the defence.

The majority of Hague tribunal defendants cannot afford to pay their own lawyers, and most defence counsels are paid from the court’s budget, which in 2005 is estimated at roughly 19 million US dollars. The lawyers are provided with a lump sum per case from which to cover their fees, while the prosecutors receive monthly salaries.

The president of the Association of Defence Counsels, ADC, Stephane Bourgon, resigned last week, complaining that he had made little progress in negotiating a range of financial issues on behalf of the defence lawyers with the tribunal’s Registry.

“I find the issue of equality of arms… is a continuing frustration for defence lawyers here,” said Loukas, who is also Bourgon’s deputy at the ADC.

But the Registry insists that it is dedicated to maintaining the principle of equality of arms, and is doing its best to spread out the limited budget allocated to the court for defence purposes.

The lumps sum principle, the court’s spokesman Jim Landale insists, is a guarantee of the counsel’s ability to act independently of the tribunal. “It guarantees that the defence counsel can have the flexibility and freedom to manage their legal aid funds as they see fit,” he said.

And while the disagreements over perceived inequality continue, Jones believes the differences can sometimes work in the defence’s favour.

“We have a bit of a Goliath prosecutor, but we [the defence] have the advantage of better mobility and in a way more independence, so we can sometimes be quicker and outwit the prosecution with any luck,” he said.

However, the work of the tribunal’s defence lawyers has been marred by allegations of “fee-splitting”. This is where a defendant is given, illegally, a slice of the lump sum awarded for his defence, in return for choosing a particular lawyer. This practise, which is normally confined to counsel from the former Yugoslavia, has been denied by defence counsel - but tribunal insiders, and some lawyers, have admitted to IWPR that it happens.

THE THIRD PILLAR OF JUSTICE

Providing the accused with the best possible defence is the “essence of fairness”, according to Judith Armatta, the former long-time observer of the Milosevic case for the Coalition for International Justice. “Without good defence lawyers … there would be no justice,” she said.

This belief is incorporated in the tribunal’s basic documents. Article 21 of its statute encompasses almost word-for-word parts of the UN’s covenant on civil and political rights guaranteeing the rights of the accused to a fair trial.

This understanding of the importance of trials is shared also by the defence lawyer’s fiercest opponents in trials – the prosecutors.

“Defending any accused is a very honourable task, and a very important one,” said Stefan Waespi, a prosecutor at the tribunal. According to him, good defence has also practical advantages – as it tests the prosecutors’ evidence and minimises mistakes.

Both the defence and prosecution are aware that they are working at the leading edge of human rights law, with some believing that defending war crimes suspects is a way of improving and developing it.

“Here, you feel as though you are a part of a much bigger wheel,” said Dixon. “You don’t always get that in a national system. You don't necessarily feel as though it is going to make a contribution to building something new and greater, beyond your day in court.”

The lawyer’s role is constantly being debated in the tribunal’s courtrooms, sometimes very dramatically.

One such heated discussion occurred last summer when the court tried to resolve problems in the trial of the former Yugoslav president Slobodan Milosevic by assigning him a lawyer against his will. Milosevic refused to communicate with his new lawyer, his defence witnesses refused to appear in protest and the appeals chamber eventually restored him the right to conduct his own defence in person, while keeping the lawyer, former amicus Steven Kay QC, as his court-assigned counsel.

A similar situation happened to Karnavas, whose client also refused to communicate with him after a disagreement. Two more accused, Krajisnik and Serbian radical nationalist politician Vojislav Seselj, both insist on representing themselves.

Although these squabbles occasionally draw heavy criticism, they are also the sign of the intensity with which the growing body of international criminal jurisprudence is now being developed.

Ultimately, Loukas told IWPR, “Tribunals can only legitimately claim to be promoters of international human rights if they also safeguard the rights of the alleged violators of international human rights.”

Karnavas agrees that the tribunals must not only be impartial but also be seen to be impartial. He said this is where the role of a dedicated defence counsel is of crucial value, “If we provide the guiltiest of the guilty with a proper trial and ensure that their rights are protected, then I think those who are really not guilty have a chance.”

Merdijana Sadovic is an IWPR reporter in The Hague.