International tribunals have a vital role to play in bringing war criminals to justice. But what is it like being a lawyer on such a body? Catherine Baksi finds out


The United Nations (UN) tribunals prosecuting accused war criminals may have been somewhat overshadowed by coverage of the trial of former Iraqi dictator Saddam Hussein. Even so, they have blazed a trail, setting groundbreaking precedents in the arena of international criminal and humanitarian law, and providing lawyers with the opportunity to work on cases that have made history. Among their notable achievements, they have handed down the world’s first conviction for genocide, and indicted a head of state – the late Slobodan Milosevic – on war crimes charges.



The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first to be established – set up in May 2003 by the UN Security Council to try those responsible for violations of international humanitarian law during the war in the early 1990s. Its only predecessors were the Tokyo and Nuremberg tribunals set up by the allies at the end of World War Two. Then came the International Criminal Tribunal for Rwanda (ICTR), which was created in 1994 and based in Arusha, Tanzania, to prosecute those responsible for genocide and other atrocities committed in 1994.



These ad hoc tribunals gave impetus to the formation of the International Criminal Court (ICC), established in 2002. Based in the Netherlands, it is the first permanent independent treaty-based international criminal court. It will try those accused of the most serious offences of international concern, where a national court is unable or unwilling to do so. No trials have taken place before the ICC, but the prosecutor has begun investigations into three situations in Uganda, the Democratic Republic of Congo, and Sudan, and the first arrest warrants have been issued in relation to Uganda. Indeed, last week the ICC announced that it had formally charged Thomas Lubanga Dyilo, the former Congo militia leader, with crimes relating to enlisting child soldiers.



A Special Court for Sierra Leone (SCSL), based in the country, was formed to try those responsible for crimes committed during the country’s ten-year civil war, operating under both national and international humanitarian law. Tribunals have also been created to deal with former Khmer Rouge leaders for crimes committed in Cambodia in the late 1970s, and with those responsible for the mass murder and devastation that accompanied East Timor’s independence from Indonesia in 1999.



However, while the international community played a role in establishing the Saddam Hussein tribunal, and in training some of the judges and lawyers involved, it is a national rather than international court, with Iraqi lawyers and judges, and governed by the country’s own laws and procedure.



The international war crimes tribunals have developed their own independent system of law that merges civil and common law practice, and adopted procedures that combine the adversarial approach, familiar to UK lawyers, and the continental inquisitorial judge-led format.



Roger Sahota, a partner at north London criminal defence firm BSB, and co-counsel for a defendant before the ICTY, explains some other key differences: ‘The court has a more flexible approach to the use of hearsay evidence, which is generally admissible, with the weight and relevance left to the discretion of the court.’ Other practices include the fact that the defence must address the chamber in mitigation at the end of the trial, even though at that stage there has been no verdict, and the prosecution has a right of appeal against acquittals.



The ad hoc and special tribunals deal with the most egregious offences. Acutely aware of the scale of his task, Bongani Majola, a deputy prosecutor at the ICTR, says: ‘The cases are usually large and complex, and emotionally draining as you are dealing with the most horrific factual situations, and where the crime scenes will often measure the number of victims in their thousands, and sometimes tens of thousands.’



It is not just the scale, but the complexity of the matters that makes the lawyer’s task challenging. Steven Kay QC of 9 Bedford Row in London represented Bosnian Serb Dusko Tadic in the first trial at the ICTY, and the first civilian to be charged with genocide at the ICTR. He was also assigned as counsel for Slobodan Milosevic, before the leader’s death earlier this year. He says in many of the trials it is not the perpetrators of the crimes being prosecuted, but those who are alleged to have commanded the perpetrators. ‘The issue is frequently command responsibility, which goes to the political structure of a state and is beyond any matter you might deal with domestically,’ he explains.



James Oury, a solicitor-advocate and partner at Oury Clark in London, has been involved in the SCSL. He paints a picture of dealing with such matters as he recalls visiting his client in custody on a remote island, and being handed 200 prosecution witness statements as he boarded his helicopter back to Lungi International Airport. ‘The readiness of the prosecution case, thoughts of how I was or was not going to cross-examine victims who had suffered terrible injuries, maintaining fairness and the presumption of innocence and the critical challenge that would represent, whirled through my mind as I travelled home.’



He continues: ‘To read statements of deeply inhumane suffering swamps one’s compassion, but fundamental principles of fairness and the presumption of innocence echo loudly in one’s deep understanding of the impartial role of defence counsel no matter how deeply distressing war is.’ The diverse backgrounds of the lawyers taking part, drawn from a range of countries and legal traditions, present additional challenges.



Whatever jurisdiction people come from, they have to come with an open mind and be able to adapt to the process adopted, advises Mr Majola. ‘Approaching any problem with a “this is how we do it back home” attitude is likely to result in disappointment and frustration for the lawyer involved.’



Jo Cooper, a solicitor-advocate at Alverstone Chambers in London, has been involved in defending two cases before the ICTY. Mr Cooper, whose team has eight members based in several countries, says just getting on with the job with people from different cultures, legal backgrounds and in different time zones is hugely challenging, but modern technology, such as Skype – which allows lawyers to use the telephone over the Internet – has made an enormous difference.



‘Technology makes it possible to react to events immediately. Two years ago, all court communications were done by fax – now we have an e-court and all communications and filing of documents is done by e-mail,’ he says.



Critics claim the tribunals are politically biased and provide victor’s justice in lengthy expensive trials and fail to prosecute those culpable. Practitioners are also aware of the tribunals’ deficiencies.



Mr Kay says the cases and indictments at the ICTY are too long. Mr Milosevic faced a 66-count indictment. ‘While the judges can limit the number of witnesses or factual issues at trial, they are often reluctant to do so for fear of being criticised for interfering,’ he explains.



Mr Kay notes the move towards an increasing reliance on written materials in place of live testimony, with written statements forming evidence in chief. But he says pragmatically: ‘While this makes it hard to deal with in terms of advocacy, such procedures are necessary to enable the courts to function. The Milosevic trial would have taken 20 years if conducted under our procedures.’



Mr Cooper cites a more fundamental flaw. ‘The structure of the court is not adequate. Its essential problem has always been that its purpose was to prosecute those most responsible for committing the gravest offences. The fact that only a limited number of people could be tried by it created a presumption of guilt not in a technical legal sense from the beginning. This meant that while a great deal of thought was given to the arrangements for the prosecutors and judges, little thought was given to the legitimate function of the defence and how that should be carried out.’



The issue of equality of arms has been a long-standing problem at the ICC, but things seem to be moving in the right direction at last, in part prompted by a critical monitoring report issued by the International Bar Association in April. This found practical shortcomings, such as security arrangements hampering access to the court for defence lawyers, and a lack of permanent office space. There are signs that these issues are now being addressed.



The report also said there is a ‘pressing need’ to create a body to represent ICC defence counsel so as to co-ordinate concerns and organise training. On other issues, it highlighted the problems in merging the civil and common law systems under which the ICC operates.Despite the deficiencies, most practitioners agree the courts should be judged on what they have achieved, which, they add, is a great deal.



Mr Majola says the situation should be viewed from the premise that there was no system in place for trying these crimes by an international body prior to the establishment of the ICTY and ICTR. ‘Everyone has been finding their way to make the system and rules more efficient and workable. Our view is that it is an effective way of getting justice. Although we admit that it has many imperfections, they are far outweighed by the achievements of the system.’



Mr Kay sees this as a new world of jurisprudence and legal procedure, and one that has been developing at a rapid pace. He says: ‘And they are successful, no doubt about it.'