Why I Do International Criminal Defence Work

 Introduction

Most criminal defence attorneys are asked, at least a few times in the course of their careers, How can you do what you do?  How can you defend “x”?  How can you defend someone charged with “y”?   The query may be made by a friend or relative or even, sometimes, a colleague who practices in another area of law.

In 2006, I had just finished Simba, my first case at the International Criminal Tribunal for Rwanda (ICTR) in Arusha and wrote about my experiences as a defence attorney at the ICTR. The article is entitled:  “The Evolution of a Partisan:  Observations of a Criminal Defence Attorney at the ICTR,” and is available at Bepress – Evolution of a Partisan.

In 2014, I again wrote about defence work in an article, entitled “Litigating for Justice: Defense Work at the International Criminal Tribunal for Rwanda (ICTR),” available at Litigating-for-Justice.

And it is now 2021, and I am still defending persons accused of international crimes.

The query of why I do international criminal defence work elicits the same responses today as it did years ago… but I have come to the realization that the question I am really answering is:  how can I not do this?  Especially based on what I have learned over the last fifteen plus years about the nexus of law and politics, through defending clients charged with crimes in international courts and tribunals.

I was ready to “see” political forces at work at the ICTR when I first arrived in Arusha in 2004.  I did not have to be convinced that the reality of the Tribunal’s workings was about the relationship between law and politics.   But, what I was not prepared for (and experienced once I actually started to do work on my case in Rwanda) was the extent of overt State political intervention by Rwanda in the ICTR cases in Arusha.

The most important lesson I learned at the ICTR is that a State Party in a conflict can exercise power over the judicial mechanism, notwithstanding the intentions of jurists and staff to be impartial and adhere to the rule of law.     

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My background had provided me with a prism with which to view and analyze how law and politics interacted.  I was a student activist, and my politics were formed in the struggles of the late 1960’s in the U.S.   I entered law school when I was 35 years old after more than a decade as a union activist.  I have now been involved in the struggles of peoples for the right of self-determination, for equality and against discrimination for a little more than half a century.

I understood politically that the world is divided into the “haves” and the “have nots,” the oppressor and the oppressed (and similar constructs) based principally on race and class and gender, and also sometimes influenced by other categories.  Law reflected these divisions, and the challenge was to use the system – if possible – to level the playing field so that the rule of law was applied with equality to all.       

I initially decided to focus on criminal defence because I wanted to talk to juries.  (I was trained and practiced in the U.S.)  Pre-lawyer, I was a labor organizer, and – in my mind – talking to juries was close to organizing.  It involved thinking about how an ordinary person, i.e. a non-lawyer, might react to the defendant, respond to the allegations, analyze the evidence, etc.  In essence, I saw part of my Defence task as  “organizing the jury” to rally to the Defence narrative or view….whatever that was in a particular case.

Being a prosecutor never even crossed my mind.

So, when I became a lawyer and started at Legal Aid in New York City, there was no question as to which side I would represent.  My focus was on making sure the client got a “fair shake” in the criminal justice system.

Getting a “fair shake” required making a critique of the criminal justice system.  It meant  starting from the premise that the courts and justice are not ensconced in a cocoon, free of “outside” political influence.  In fact, the workings of justice itself reflected the power relations and systemic racism of society.  One simply had to work (or even watch) arraignments in AR-1 or AR-2 in the middle of the night at 100 Centre Street, Manhattan (or any other time of day) to get a quick lesson in how class and race interact with “justice.”  It is immediately obvious, even to the most avowedly “apolitical” Legal Aid lawyer, that getting a “fair shake” was inextricably linked to the politics of the justice system.

Probably all of my cases at Legal Aid were not political cases based on the charges, but  the social and political contexts in which they occurred were generally determined by systemic racism, poverty and drugs.

The Nexus of Law and Politics at the ICTR

What immediately struck me about the ICTR cases was that they were – in the first instance – political cases.  Politics was written all over them:

  • from the Rwandan government’s official narrative of the events of 1994 repeated in every ICTR indictment to
  • the fact that not one of the 93 persons prosecuted at the ICTR was a Tutsi, or a member of the RPF, despite the findings and reports of international commissions of systematic crimes against the Hutus.

The ICTR courtroom was an important battlefield of the Rwanda Patriotic Front’s (RPF) war, starting from its 1990 invasion against the Hutu leadership in Rwanda.  This applied not only to the selective prosecution of the former Hutu government and military leadership by the ICTR.  It also permeated all aspects of the Defence work on the case, including investigations and other preparations for trial, and even more dangerous, the threats to Defence witnesses by the Rwandan government and its agents.

Rwanda’s Interference with Defence Investigations and Witness Appearances

It is important to read the Trial Chamber’s section in the Simba Judgment, at paras. 41-53.[1] And, it is crucial to ask yourself – even if only a fraction of the Defence’s allegations were true – was the defendant given his right to due process by the ICTR.  The answer, in my view, is “no,” based largely on Rwanda’s State interference with the ICTR.

 Rwanda implemented a “witness as hostage” policy in its dealings with the ICTR, which was operational before the Simba case started in 2004.  In 2003 and 2004, for example, witness interference was identified in US State Department reports as a tactic of the Rwandan government.[2]  At that time, Rwanda withheld witnesses from the ICTR by refusing to issue travel papers to any witness (Defence or Prosecution).  This resulted in the disruption of three trials.

Rwanda’s policy was in retaliation for two events:  (1) ICTR Prosecutor Carla del Ponte’s “Special Investigations” into the alleged crimes of the RPF and (2) the Trial Chamber’s decision in the Barayagwiza case.

In 1999, del Ponte had opened “Special Investigations” into the alleged crimes of the RPF, and was about to issue indictments in 2002-2003.[3]  Rwanda adopted the tactic of threatening to withhold witnesses from the ICTR, as a demonstration of its displeasure with the investigation.  At some point in  2002, the “Special Investigations” were suspended,[4] and in September 2003, the Security Council relieved del Ponte of her assignment at the ICTR and replaced her with Justice Hassan Bubacar Jallow, a Gambian jurist.

The second event for which Rwanda sought “payback” was the ICTR Appeals Chamber’s decision in late 1999, dismissing the charges against Barayagwiza and ordering his release, with prejudice to the Prosecutor, based on the “egregious” conduct of the Prosecutor and the numerous due process violations.[5]  Not even five months later, the Appeals Chamber reversed its decision to release Barayagwiza, based on “new facts.” It held that the remedy for the  violation of the defendant’s rights should be determined at the end of the trial, at the time of judgment –if he is found not guilty, there should financial compensation, or if he is convicted, there should be a reduction in sentence for violations of his rights.[6]

In sum, the confluence of the initial Trial Chamber decision to release Barayagwiza and the inception of “Special Investigations”  was viewed by Rwanda as  a threat to its political agenda.   And  Rwanda was correct.  Rwanda – the only country which voted against Security Council Resolution 955 (1994) establishing the ICTR,[7]  repeatedly tried to disrupt and obstruct the ICTR – making effective Defence investigations difficult and sometimes impossible, threatening Defence witnesses and violating defendants’ fair trial rights, guaranteed under the ICTR Statute and other international instruments.    Rwanda’s policy continued, in different permutations, throughout the ICTR’s existence.  Not only had Rwanda’s political agenda permeated the ICTR’s judicial process, but it succeeded in  effectively controlling the proceedings at the ICTR.

Rwanda’s “witness as hostage” policy, in addition to halting the ICTR trials at the time,  had another important aspect:  witness intimidation.   This intimidation of Defence witnesses often started long before anyone’s name even appeared on an official witness list in court.  For example, the Simba Trial Judgment reveals that there was evidence presented by Defence prisoner witnesses that persons who had been interviewed by the Defence were instructed by the Rwandan prosecutor’s office to write down what had been discussed with the Defence, and that some potential witnesses were moved to a different prison where they were put in isolation cells, upon the order of the Rwandan prosecutor’s office.[8]   The Simba case is also cited by Professor Nancy Combs as an example of defence allegations of how Rwanda impeded Defence investigations.[9]

The aim of the Rwandan policies of obstruction was to prevent the prisoner and civilian witnesses from testifying for the Defence in Arusha.  In Simba, threats to the security of the only witness (BJK1) who could corroborate Simba’s alibi throughout the entire time period of the charges resulted in his refusal to appear in court.   And, the same Trial Chamber refused to accept the alibi statements of this witness, which he had made to both the Defence and the Prosecution.[10]

In Simba, in response to multiple Defence allegations of witness intimidation, the Trial Chamber denied that the intimidation existed, except for one person who “may have been dissuaded” to attend the trial.[11] But, three paragraphs later, it negated its ruling, by holding that this intimidation did not materially prejudice the defendant.[12]

Lastly, the flip side of Rwanda’s witness interference and intimidation of Defence witnesses was its organized preparation, within its State structures and organizations, of the Prosecution witnesses for the ICTR.  It is well-known that organizations such as IBUKA or AVEGA[13] prepared their members to testify for the Prosecution.   Within the prisons, the prisoners who would testify for the Prosecution were kept together in the “Arusha Aisle,” where they underwent preparation for Arusha.  As I recall, this evidence was elicited in the “Military 1” case.  I tried to question a Prosecution prisoner witness about this in the “Military II” case.  Unfortunately, I was unsuccessful.  But the existence of an “Arusha Aisle” and State-led organizations of victims is not so surprising.  Rwanda is a society which has perfected the molding of a collective memory based on the RPF’s version of history, and has institutionalized this in its “re-education camps”[14] and laws on “genocide deniers.”

Fighting for Fair Trial Made Me a Political Partisan

Notions of law and justice, of course, played some role in the courtroom.  But this role was overshadowed and often overwhelmed by Rwanda’s unrelenting, planned efforts to make the ICTR, whose establishment it had opposed, serve its own political ends.

Every Defence request to implement the client’s fair trial rights was tantamount to being seen by the Prosecution (and treated by the Rwandan press and government) as a hostile act  against the Rwandan government.  This adds substantial dimension to the notion of “criminal transference” generally experienced by defence attorneys in many jurisdictions.[15]   There was simply no “independent” position of the Prosecution, which was routinely advised by Rwandans who identified with the RPF.

It was almost inevitable, then, that fighting as a Defence attorney to “level the playing field”  – whether it was in conducting investigations in Rwanda or requesting withheld exculpatory material – made the Defence attorney a partisan in the events of 1994.   

The notion of  a “fair trial” for ICTR defendants was an impossibility where the ICTR became a battleground for Rwanda’s leadership under the RPF to assert and re-affirm its political power.  As Avigdor Feldman, a leading Israeli human/civil rights lawyer, and founder of B’Tselem, has stated in the film The Advocate (about the work of Lea Tsemel, an Israeli attorney who represents Palestinians),

“A fair trial means giving both sides an equal chance.  But since the balance of power is a priori unequal, a fair chance is never given [referring to Palestine side in the Israeli Occupation].”

In an ICTR courtroom, there were two sides:  the Prosecution and the Defence.  But the weight of Rwanda on the Prosecution side guaranteed that the Defence did not have an “equal chance,” rendering fair trial illusory and unattainable.

I quickly came to the powerful realization that struggle in the courtroom is as much about the historical narrative as it is about culpability.  At the ICTR, its judgments are a historical narrative of the events of 1994. This is the reason that the government of Rwanda has so tenaciously tried to exercise control over the ICTR, especially the Prosecution. As a former ICTY Prosecutor has pointed out, “The struggle for the interpretation of historical events through the trial record might be as important in [the] long run as the determination of guilt or innocence of the individuals tried.”[16]

The result was that the historical record produced by the ICTR was marred by its selective prosecution of only Hutus, and its failure to hold include the RPF accountable for its well documented crimes in the conflict.  As Wilson has pointedly stated, “Unless this changes, we can conclude only that the historical record produced by the ICTR is a partial one, as it has rendered an account of the crimes of just one side in the conflict, the losers.”[17]

This purpose of writing the historical record – from the perspective of the victors – means that notions of justice and fairness are submerged within the judicial process.  The struggle for defence attorneys is to pull these notions out of the political morass which is inevitable in the cases in international courts and tribunals.  So, if you want to make sure your client has a “fair shake,” you try to extricate fairness and justice from the sometimes muck of political conflict.  Not an enticing image, but probably an accurate description of the work I do as an international criminal defence attorney.

[1] There are also a number of law review articles, which can be found through Google, citing Simba as an example of  Rwanda’s witness intimidation and interference in ICTR cases.

 

[2] The 2003 US Department of State Country Report for Rwanda states:

The International Criminal Tribunal for Rwanda (ICTR) experienced its most troubled year to date. Shortly after Prosecutor Carla Del Ponte announced her intention to indict RPF soldiers for war crimes committed in 1994, a part of the mandate established for the ICTR, Rwandan genocide survivor organizations in January called on prosecution witnesses to boycott the ICTR for a number of reasons, including alleged mistreatment of witnesses. In June the government imposed new travel restrictions on prosecution witnesses that disrupted three trials, and refused to provide access to documents needed by the prosecution. In July Del Ponte informed the U.N. Security Council about these obstructions.

In the 2004 Rwanda Country Report on Democracy, Human Rights and Labor, February 28, 2004, the US Department of State acknowledged that “ government authorities sporadically prevented witnesses from attending and giving testimony at the ICTR, which delayed the judicial process.”

See also Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), pp. 43-44.

 

[3] The mandate of SC Resolution 955 was to prosecute both sides of the Rwandan conflict.

 

[4] See Human Rights Watch letter to Security Council, 25 October 2002.

 

[5] Jean Bosco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72, Appeals Chamber, Decision, 3 November 1999, paras. 106-108.

 

[6] Ibid., Decision, 31 March 2000.

 

[7] Minutes, Security Council Meeting, 8 November 1994 (S/PV.3453)

 

[8] See, Prosecutor v. Simba, Judgment and Sentence, 13 December 2005, fn. 54.

 

[9] Combs, Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010), p. 147.

 

[10] See, Beth S. Lyons, “Enough is enough:  the illegitimacy of international criminal convictions:  a review essay of Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions by Nancy Amoury Combs,” in Journal of Genocide Research (2011), 13(3) pp. 293-295, especially fn 70.

 

[11] Judgment, para. 50.

 

[12] Judgment, para. 53.

 

[13] See discussion of Prosecution witnesses who alleged that they were asked to give false testimony by IBUKA in the “Media case” at the ICTR, Combs, pp. 155-156.

 

IBUKA, formed in 1995, is an organization of genocide survivors.  It has played a leading role in propagating the Rwandan government’s view of the genocide, including its fundamental view that anyone who believes that there was a genocide against both Tutsis and Hutus, is guilty of the crime of genocide denial, or negationism.  See, for example, IBUKA’s “Open Letter to United States Congress Regarding HR#1426,” 17 June 2010, stating that Professor Peter Erlinder is a genocide denier, at www.businesswire.com.  IBUKA has also been the instrument, along with AVEGA, the organization of genocide widows, through which the Rwandan government has implemented its retaliatory policies of non-cooperation to obstruct the workings of the Tribunal.  Lars Waldorf, “A Mere Pretense of Justice”: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal,” Fordham International Law Journal, Vol. 33, No. 4, April 2010, pp. 1221-1277 points out that a member of the RPF’s central committee was appointed as president of IBUKA in 2000, “the same year that several Tutsi survivors critical of the RPF’s policies were effectively neutralized,” pp. 1231-1232.  On AVEGA’s website, www.rwanda-genocide.org, it states that the association was approved by ministerial decree No. 156/05 on October 30, 1995.

 

[14] See, Thomson, Susan.  “Re-education for Reconciliation:  Participant Observations on Ingando.”  See also,  Mgbako, Chi, “Ingando Solidarity Camps: Reconciliation and Political Indoctrination in Post-Genocide Rwanda,” Harvard Human Rights Journal 18, (Spring, 2005), pp. 201-224.

 

[15] At Legal Aid in NYC, I have experienced the occupational hazard of being the object of criminal transference where, in court, the judge (and/or the prosecutor) transfers his or her attitude about the crimes charged against the defendant to the defence attorney. Both defendant and defence counsel become identified with the criminal acts alleged.  At the international courts and tribunals, particularly at the ICTR, a defence attorney (especially in military and other high profile cases) was often viewed with similar transference:  the crimes alleged against a defendant were imputed to the defence counsel….simply because s/he was defending someone and fighting for a fair process.  So, the line between fighting for a client’s rights and being viewed as a supporter of the client’s side in the conflict was, at best, blurred and more often, non-existent at the  ICTR.

 

[16] Nice, Professor Sir Geoffrey, “Legal Process as a Tool to Rewrite History – Law, Politics, History,” Lecture, Gresham College, 13 February 2013.

 

[17] Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), p. 46.

 

Comment on Independent Expert Review of the ICC and the Rome Statute System

(This post was published by Opinio Juris on 11 December 2020 at Comment on Independent Expert Review of the ICC and the Rome Statute System – Opinio Juris)

11.12.20 | 0 Comments

[Beth S. Lyons has been a criminal defence attorney for more than 30 years, practicing almost exclusively in Legal Aid programs in New York City (trial and appellate levels) and in the international courts and tribunals; she currently is one of the counsel representing Mr. Dominic Ongwen.]

As a criminal defence attorney at the International Criminal Tribunal for Rwanda (ICTR), and now at the International Criminal Court (ICC) (in the Ongwen case), I am always curious to read the analyses of those who are not involved daily with the trial litigation in my cases.  It is important to know how the communities outside the courtroom – in the “situation country,” in the legal arena, in academia and in the amorphous international community view what goes on in the courtroom and in the pleadings.  This is a check for the litigator – to gauge how the arguments are received outside the courtroom.  Sometimes, a counsel can glean perspectives that s/he may have overlooked.

With these considerations in mind, I searched for references to the Ongwen case in the Final Report of the Independent Expert Review (IER) of the ICC and the Rome Statute System, 30 September 2020 (IER). 

 I stopped in the beginning of the IER, at paragraph 489, which concerns the Ongwen Confirmation of Charges decision (‘CoC Decision’).  My fellow Ongwen counsel, Chief Charles A. Taku, pointed out paragraph 489 to me.  It reads: 

“… [t]he formulation of the decision confirming the charges in the Ongwen case is, however, an example of the clarity that would result were the Division as a whole to adhere to the agreed recommendation contained in the Chambers Practice Manual [fn. 317 refers to the Ongwen Confirmation of Charges Decision].”

First, the IER statement assumes clarity in the operative part (essentially, the Document Containing the Charges from the Prosecution which is incorporated with modifications into the Ongwen CoC Decision).

Second, the IER statement holds out the Ongwen CoC Decision as an example of the distinction between the confirmed charge and the Pre-Trial Chamber’s (‘PTC’) reasoning, as stated in the Manual, 2019 as well as earlier ones.

I wondered: Why is the IER looking at the Ongwen CoC Decision (‘CoC’) as an example of clarity?  From my viewpoint, Mr Ongwen was prosecuted on confirmed charges and modes of liability which were patently unclear and violated his fair trial right to notice. 

At paragraph 59, the Manual states the requirement that the Prosecutor present and the PTC confirm “clear and unambiguous” charges.  Thus, “clear and unambiguous” charges are a predicate for the PTC’s confirmation of charges decision.

But in the Ongwen case the Prosecutor’s charges and the confirmed charges are replete with defects.  The most egregious and prejudicial effect of these defects is the violation of Mr Ongwen’s right to notice, the cornerstone of fair trial. 

The right to notice is a fundamental principle of fair trial within the international courts and tribunals.  It states that an accused has the right “[t]o be informed promptly and in detail of the nature, cause and content of the charges […].”  This language is found in Article 67(1) of the Rome Statute (Statute), which mirrors the language of Article 14(3)(a) of the International Covenant on Civil and Political Rights (‘ICCPR’), and other international instruments, including, inter alia, Article 11 of the Universal Declaration of Human Rights (‘UDHR’),  Article 6(3) of the European Convention on Human Rights (‘ECHR’)  and Article 6 of the African (Banjul) Charter on Human and Peoples’ Rights (‘ACHPR’), as interpreted by the African Commission.

The remaining fair trial rights, especially Article 67(1)(e) of the Statute – the right to raise defences and to examine witnesses, including direct and cross examination – all emanate from the initial right to be informed of the charges, as enshrined in Article 67(1)(a) of the Statute. In addition, all these fair trial rights are interdependent.

The ICC Appeals Chamber in the Lubanga case has held that the right to notice is a fundamental right and “[t]he right to be informed in detail of the ‘nature and cause’ of the charges” is embodied in the ICCPR, the ECHR, and the ACHR.  The Appeals Chamber further stated that the facts “must be identified with sufficient clarity and detail.” (Lubanga AJ, paras. 120-121).  Moreover, the Appeals Chamber recognized the connection between the right to adequate notice and the right to prepare a defence.  (Lubanga AJ, at para. 129).

More recently, in the Bemba case, where the Defence for Mr Bemba averred that Mr Bemba did not have sufficient notice regarding specific criminal acts, the Appeals Chamber found that:

“[I]t considers axiomatic that an accused person be informed promptly and in detail of the nature, cause and content of a charge.” (Bemba AJ, at para. 186, and fn. 368).

In short, there is unequivocal judicial precedent for the principle of notice, but its application and interpretation is the subject matter of defence motions on the charging instrument and requests for motions to dismiss for facial deficiency (i.e. failure of charging instrument to meet the legal requirements).

In the Ongwen case, the Defence objections are well-preserved and concisely listed in a Trial Chamber Decision on Defence Motions Alleging Defects in the Confirmation Decision. (Defects Decision, at para. 11).

The Defence’s basic objection is that the CoC Decision violates the right to a fair trial in respect to the notice requirement.  This is evidenced by the lack of clarity and specificity which permeate the confirmed charges and modes of liability throughout the 104-page CoC Decision.  This is detailed in five pleadings – the Defects Series at Defects Series I-IV and a fifth pleading related to defects in the CoC decision regarding sexual and gender-based crimes.

Generally, there is no evidentiary support for the legal elements of the charges and modes of liability, and, in some cases, elements are simply missing.  Here are a few examples of defects in the CoC Decision, which are detailed in the Defence pleadings:

a) The CoC Decision fails to identify the mens rea elements for the modes of liability charged. For example:

  1.  The pleading of indirect co-perpetration is defective because it omits the objective element of ‘power to frustrate the commission of the crime’ and the subjective element of ‘awareness of the power to frustrate the crime.’ (Lubanga AJ, para. 469; Lubanga PTC I Decision on the confirmation of charges, 29 January 2007, para. 367.)
  2. The pleading of command responsibility is defective because it simply tracks the statutory language and provides no factual allegation in support of each of the elements of command responsibility. It is also incomplete, because the elements of mens rea and failure to take all necessary and reasonable measures to prevent or repress their commission are not pleaded.
  3. The pleading of common purpose liability is vague because it omits the level of contribution required.

b) The pleading of the crime of persecution is defective because there are no allegations of the required persecution intent/animus in respect to Mr Ongwen. In addition, the confirmed charge of persecution fails to identify the elements of the underlying crimes which are not enumerated and not supported with evidence.

c) The confirmation of the crime of forced marriage is jurisdictionally defective because it is not found in the Statute and there is no specificity as to the legal element of mens rea, nor is there a specific link to Mr Ongwen.

d) The crime of enslavement fails to include a definition of its elements.

e) The CoC Decision fails to specify the evidence underlying the contextual elements of war crimes and crimes against humanity.

f) In respect to the confirmed charges on child soldiers, there are no factual allegations to support the legal elements of mens rea which Mr Ongwen is alleged to have possessed.

In respect to the confirmed charges on child soldiers, there are no factual allegations to support the legal elements of mens rea which Mr Ongwen is alleged to have possessed.

The Trial Chamber’s decision rejected the Defence’s defects motions (see above).  The Trial Chamber’s decision was based on its interpretation of Rule 134(2) of the Rules of Procedure and Evidence and timeliness and held that no exceptional circumstances existed for the jurisdictional defects alleged to be considered during trial.  Hence, the Trial Chamber did not reach the merits of the arguments. 

The Appeals Chamber, on 17 July 2019, affirmed the Trial Chamber’s decision and held that Mr Ongwen could advance his arguments on appeal on challenges to the formulation of charges, if convicted.

Based on the appellate holding, it is my view that the Appeals Chamber recognized that the fair trial issues of notice can and do affect the proceedings during the trial.  Implicitly, this means that limiting objections to the commencement of trial without leave of the Trial Chamber (as per Rule 134(2)) should not be used as a barrier to raising fair trial issues throughout the proceedings, related to the confirmation of charges and modes of liability.

At a minimum, I would have expected the IER to at least acknowledge the contentious legal issues attached to the Ongwen CoC decision.  At stake is the fundamental issue of fair trial and notice.  This is particularly pertinent given the context of this CoC Decision: Mr Ongwen is the only single defendant at the ICC (and, to my knowledge, in an international court or tribunal) to be prosecuted on 70 counts and 7 modes of liability. 

Even if one were to dismiss my comments as those of a “disgruntled” defence attorney, the IER did not acknowledge the fifty-page Separate Opinion of J. Marc Perrin de Brichambaut (Separate Opinion), a member of the PTC.

While concurring with the decision, Judge de Brichambaut was explicitly critical of its lacunae, which fall short of the applicable PTC Practice Manual requirements.  These advise that confirmed charges must be distinguished from the underlying reasons of the confirmation (Separate Opinion, at para. 10).  He concludes that the “….[r]easoning [in the Ongwen CoC Decision)] was seriously deficient….”  (Separate Opinion, at para. 16). 

Judge de Brichambaut provides numerous examples in his Separate Opinion, including the failure of the decision to provide definitions of alleged crimes by Mr Ongwen at the IDP camps (at paras. 18 and 19); failure to define the contextual elements of war crimes and of crimes against humanity (at para. 20); “a small amount of evidence in support of five to six modes liability brought in relation to the attacks on the [IDP] camps” (at para. 23); no evidence in support of contribution as an indirect perpetrator re the common plan at Pajule (at para. 24); and no evidence in support of the crime of persecution (at para. 24).

Most significantly, Judge de Brichambaut links the CoC Decision’s deficient reasoning and the right of fair trial.  In his Partially Dissenting Opinion on the PTC’s decision on the Defence’s request for leave to appeal the CoC Decision, decision at paragraph 29, he finds:

“The fair conduct of the trial is seriously affected in the instant case because the weakness of the reasoning set out in the Bench’s own decision restricts the rights of the defence. The way in which the Decision on the confirmation of charges was drafted does not provide the Defence with details of what evidence was relied on or how the Chamber defined the crimes. The principle of equality of arms is violated since the Defence is not in a situation to examine the legal and factual bases for the Bench’s Decision on the confirmation of charges. The outcome of the trial may well be affected.”

It is evident in the IER that the notion of fair trial rights and the rights of the accused have been considered by the drafters throughout.  In fact, in Recommendation 191 (R191), the Report states:

“Throughout the conduct of confirmation proceedings, Judges should have regard to the purpose of the confirmation process as a filter for inadequately supported charges and to ensure the fair trial rights of the accused, including by conducting efficient and expeditious proceedings leading to a clear and unambiguous confirmation of charges decision.”

With this recommendation in mind, it is incumbent upon the IER to review its erroneous description of the Ongwen CoC Decision as an example of clarity and modify its analysis in line with its own recommendation – to be consistent with the notion of fairness.

Many thanks to Tibor Bajnovič and Parisa Zangeneh for their assistance.  

Defending Against Charges of Sexual and Gender-Based Crimes: Confronting Prejudices of Counsel on a Defence Team

(This post first appeared on IntLawGrrls website on 27 October 2020. It is an excerpt from a longer forthcoming article on ‘How to Litigate an International Criminal Case’)

Introduction

It should be uncontested that for a defence counsel to do her/his job effectively, it is necessary to put aside whatever prejudices and pre-conceived notions s/he may have about the charged crimes.  Counsel must separate her or his subjective feelings about the charged crimes from the task of defending against the charges: this is essential to mounting an effective defence for the client.  In short, in order to “think like a lawyer,” s/he has to recognize what prejudices s/he may be harboring and struggle to ensure that they do not interfere with the representation of the client.  This process is generic to effective defence work:  it must be undertaken, in different forms, regardless of who the counsel is and her or his characteristics.  And the process is ongoing:  counsel must engage, and often re-engage, in it throughout every case. 

The necessity of this process is plainly illustrated in the case of male counsel and the defence of sexual and gender based crimes (sgbc).  I have singled out the role of male counsel because I believe that the difficulties and obstructions associated with male supremacy are the main obstacles when defending against these crimes, and also have a spill-over effect on a team’s working conditions.   

I would not conclude that women counsel, because of gender, are immune from prejudices or pre-conceived notions about sgbc – but these prejudices and notions are within a different framework.  We are still operating in a society where men generally exercise (or strive to exercise) power over women, and not vice versa.  

I also recognize that the gender criterion in sgbc, in some circumstances, applies to crimes against boys and men.  This makes perfect sense:  it is a logical extension of the premise that male supremacy, which targets – in the first instance – women, also results in conduct that attacks men.

LastIy, I have directed this note to Defence teams.   Male supremacy is obviously not limited to Defence teams – it is found in all aspects of the judicial processes, and among all parties.  I believe that if the Defence struggles on the issue of male supremacy within a team, the defence team will become stronger, and will be better positioned to deal with the issue of male supremacy in other parts of the judicial system and the court processes.

1.  Sexual and gender based crimes are the most highly charged allegations for all parties involved in an international criminal case.

As heinous as other criminal allegations are, and as difficult as they may be to defend against, sexual and gender based crimes  are the crimes that evoke passion, emotion and subjectivity to the greatest degree. 

Sexual and gender based crimes (sgbc), in some ways, are the most intimate and personal of crimes.   They involve violations which occur simply because of one single fundamental part of one’s identity:  one’s gender.  While not all sgbc involve sexual conduct or acts, per se, the alleged criminal conduct is based on the sexual identity of the victim (usually, but not exclusively, women).

Sexual and gender-based crimes are also the most universally familiar of crimes:  to one degree or another, many of the elements of the crimes have become “part and parcel” of daily life for countless women (and men). 

Yet, most of the conduct involved in sgbc never makes it into a courtroom….and it is dealt with by women, alone and in private.  

 But because of the ubiquitous nature of these crimes in societies, it is almost a “spontaneous” reflex for someone to identify with the victim, or, in some instances, with the perpetrator of male supremacy.

2.  Counsel understands the charges and interprets them against his own view of, and practice with, women. 

 This means that when a counsel is defending a client against sgbc, it is not unusual for him to analyze the crimes from a subjective point of view:  his analysis of the crimes charged is tainted by the counsel’s own values, societal or cultural influences, and experiences in his personal life – most particularly in respect to women.  

For male counsel who are fighting male supremacy and are fair to women and treat them as equal partners, there is no problem – they take the lead in formulating the theory of the case in respect to sgbc, and identifying key issues. 

 But for male counsel who operate as privileged and show disrespect toward women….the effects can be destructive to the client’s defence.  If he views women from a lens of male entitlement or privilege, he may not necessarily view alleged criminal conduct against the accused as being criminal.  For example, if a client is charged with rape, a counsel who views women as sexual objects for the pleasure of men, will not be able to understand the elements which have to be defended against….because he conceives of the conduct as “normal” for a man, i.e., it is not a crime.

3.   This means that the predicate to effectively defending sgbc crimes is to identify and recognize the prejudices on the Defence team, especially from counsel and make conscious efforts to overcome these prejudices.

 This is much easier said than done, obviously.  This process demands an awareness or consciousness of one’s views and opinions.  Levels of awareness or consciousness, especially about biases, vary among individuals.  

 A male counsel, especially if he has perfected his attitudes toward women for decades, does not (and perhaps, cannot) easily leave sexist baggage at the door.

 A lawyer who treats women as sexual objects cannot develop a coherent and comprehensive strategy for defending against sgbc.  The counsel becomes an “apologist” for the alleged criminal acts, in some cases.  Or, the counsel may rely on his interpretation of his own cultural background to justify his view of women.  Within different cultures, there is an ongoing struggle for equality and respect for women, often led by women.  This means that the counsel’s use of culture may not accurately reflect the view of women in the same culture.           

 And, the person who has the most to lose is the client, who is charged with these crimes.   

 In essence, this male “blindspot” makes it impossible for counsel to mount an effective defence for the client and counsel is vulnerable to being compromised by his prejudices.        

4.  The Spill-over Effects

There is a “spill over” effect between the personal and professional:  a misogynist world view affects how one treats women colleagues in a work setting i.e. are they compensated at an equal rate or are they given “less,” based on a notion that a woman may have “less” expenses because she lives with a man; are women colleagues’ ideas acknowledged and addressed, or are the ideas and suggestions ignored or dismissed, as if the women are invisible? 

 This  “spill-over” of male supremacy is not contained:  it seeps into the treatment of male colleagues on a defence team.  A counsel who fails to appreciate the contributions of women, also, most likely, will fail to appreciate the contributions of men who may not express themselves or act in a manner that the counsel understands men should act.  If a counsel presents a viewpoint in an aggressive and vociferous manner, a male colleague whose style or manner is less aggressive or less vociferous can be side-lined, or dismissed, or, in other words, treated as the women are treated. 

This kind of behaviour creates a toxic work atmosphere for everyone – men and women.  It erodes morale and can even result in unnecessary trauma on a Defence team.  For a number of reasons, including the inequality of resources with the Prosecution, a defence team is a pressurized environment for its members.  When the pervasive and incessant male supremacy of a counsel is added to this, the result is toxic:  team members can spend too much energy dealing with these sexist abuses.  The male supremacy poisons the work environment and constantly competes for attention, distracting the team from the tasks at hand.  

In sum, counsel plays a key role in a defence team:  counsel sets the standard for lawyering and leads the team in framing the issues and implementing an effective defence.    The quality of this leadership becomes one of the key indices for how effectively the team can mount a defence against charges of sgbc.  If the sgbc are not taken seriously from the beginning, and recognized – in some cases – as the charges on which the client may be the most vulnerable, it is unlikely that a coherent and comprehensive strategy to defend against these criminal allegations will be developed, and implemented.   At stake, then, is not simply the individual male supremacist practices of a particular counsel…..it is much more:  whether the client’s right to an effective defence will be realized.