Evolving equality: the development of the international defense bar.

• Author: Newton, Michael A.

Defense counsel in international criminal proceedings face difficult challenges that are intrinsic to the modern system of internationalized accountability; yet their professionalism and performance represent perhaps the most determinative dimension for evaluating the overall fairness of what the worm terms "justice" for grievous atrocities. Defense teams labor against the tides of public opinion and the deeply felt pain of the victims of mass atrocities. Abandonment of appropriate defense efforts, whether the result of professional fecklessness or personal pressures, would transform international criminal law into an organized sham aimed at achieving a shadow of justice while undermining the rights of the individuals unlucky enough to face charges against the combined weight of political and judicial will. Since its genesis in the wake of World War II, the growth of a modern field termed international criminal law is necessarily paralleled by the development of a mature defense role that helps ensure that every defendant's culpability or innocence is grounded in the soil of individual responsibility rather than irrational prejudice or irresponsible collective guilt. The developmental arc of the international defense bar in its organizational and systematic context has, however, been surprisingly underexplored.

This article discusses the jurisprudence associated with the precept of equality of arms between the prosecution and defense. Highlighting the key challenges encountered by the defense that impair perfect equality of arms, this article will describe the organizational responses in modern practice. This article documents the empirical indicators supporting the assertion that defendants receive assistance from an organized and mature defense bar, despite its imperfections and occasional inadequacies. The holistic system of international criminal justice provides rough procedural parity to the defense, despite the recurring ethical dilemmas highlighted herein. This article

concludes, perhaps controversially, that while a perfect equality of arms is a structural impossibility in the modern system of international justice, the modern defense bar has evolved to provide its functional equivalent.

1. INTRODUCTION II. EQUALITY OF ARMS--THE ESTABLISHMENT AND ETHOS OF THE INTERNATIONAL JUSTICE SYSTEM A. The Theory B. Structural Concerns and the Judicial Responses III. ETHICAL AND PROCEDURAL CHALLENGES FACING THE DEFENSE IV. ORGANIZATIONAL INNOVATIONS TO SUPPORT THE DEFENSE A. The Association of International Defense Counsel B. The Codes of Professional Conduct for Counsel C. The Creation of the Defense Office--Its Roles and Responsibilities V. EMPIRICAL EVIDENCE OF A MATURING DEFENSE BAR A. The Evidentiary Battles 1. Prerequisites for Issuance of Orders of Cooperation 2. Analysis of Current Trends B. Reforming the Right to Representation C. The Dearth of Conclusive Contempt Findings I. In General 2. Violation of Protective Orders 3. Witness intimidation and other witness improprieties VI. CONCLUSION I. INTRODUCTION

   Defense counsel in international criminal proceedings face extremely difficult challenges that are intrinsic to the modern systems of internationalized accountability; yet their professionalism and performance represent perhaps the most determinative dimension for evaluating the overall fairness of what is commonly considered "justice" for grievous atrocities. Even a cursory glance at international criminal tribunal judgments of the past fifteen years illustrates the inherent factual and legal complexity of the cases at bar. Of course, academics and observers can never overlook the reality that the various prosecution teams always bear the responsibility for proving every element of the charged offenses beyond a reasonable doubt, including the modes of personal liability alleged and any facts indispensable to a conviction. (1) This is the very essence of the frequent refrain that "ending impunity" is a critical component for the future of a multilateral and integrated international system of justice. The developed system of internationalized justice exists to provide viable forums for achieving actual justice in lieu of the pretense of preordained process, and the defense is therefore an indispensable aspect of the modem system. The prosecutor bears the public challenge of presenting a transparent process that facilitates the widespread perception of justice that is integral to the "expressive value" of the trial, which is an altogether different task from the reality inside the courtroom. (2) Conversely, the defense bar is responsible for marshalling the materials and evidentiary challenges to ensure the integrity of the process in the face of often intimidating barriers.

   In one sense, the casual reader might object to the title of this article with the pertinent observation that there is no monolithic defense bar as such in international practice or by extension in the hybrid and internationalized tribunals that operate within the domestic justice systems in post-conflict settings. The mixture of personalities, practices, and procedures does indeed vary from The Hague to Arusha to Phnom Penh and across accountability mechanisms. Nevertheless, this article postulates that there is indeed an identifiable body of modem practice and precedent that in the aggregate forms a modem defense bar that is comparable to the prosecution in terms of its overall capabilities. Phrased another way, the development of a modem professional ethos that suffuses through defense efforts in every extant tribunal, combined with the overarching body of norms and recognized organizational best practices that assist the defense, has led to a functional equality of arms. It is no accident that there is a core of defense attorneys that are highly skilled in the particularities of international criminal law that can float comfortably across continents and jurisdictions, even when their defense teams are integrated efforts with augmentation by local attorneys. The modern international defense bar is a mature and competent entity that can be expected to provide a vigorous defense anywhere in the world that seeks to establish an accountability mechanism for the foreseeable future. This is a remarkable evolution over the past six decades, and this article will describe the metrics that warrant this conclusion and the organizational innovations that demonstrate this developmental arc.

   Defense teams often labor against the tides of public opinion and the deeply felt pain of the victims of mass atrocities. (3) If commentators candidly acknowledged the conversations in families around the world affected by mass atrocities, they would accept the truism that the scale of human suffering and societal devastation that fill the cases generates a virulent yearning for retribution, or even revenge, in its starkest form. However, thoughtful modernists are aware that a quest for revenge on a personal or societal level is unseemly and likely counterproductive to lasting peace. In the context of the domestic Tribunal established to prosecute the Ba'athist leaders responsible for widespread human degradation and two decades of atrocities in Iraq, a distinguished Iraqi jurist unconsciously echoed Justice Robert Jackson's aspiration for the International Military Tribunal at Nuremberg (IMT) by indignantly noting "I am a judge, not a murderer." (4) Our moral compass would be troubled if we readily accepted a degree of pleasure from deliberate infliction of human suffering, even if we deemed it to be well-deserved. The process of an orderly and public trial can, however, help shape public opinion and moderate the desire for retribution, and the efforts of a professionalized and prepared defense bar are the irreplaceable component of an orderly system that avoids what one distinguished scholar termed "Potemkin Justice." (5)

   As the International Criminal Court (ICC) was taking form and coming into actuality in early 2003, the International Criminal Bar promulgated a sample Code of Conduct to inform the set of ethical standards for counsel that would be developed by the Court. The cornerstone of the ethical edifice was the clear recognition that the "system of international justice based on the Rule of Law rests on three pillars: an independent judiciary, an independent prosecutor and an independent legal profession." (6) The independence, ethical excellence, and fearless representation of the defense lawyers must remain an indispensable element of authentic enforcement efforts. Indeed, the abandonment of appropriate efforts on behalf of defendants (7) facing trials in the international criminal justice system, whether the result of professional fecklessness or personal pressures, would transform those proceedings into an organized sham capable of achieving only a shadow of justice while undermining the core human rights of those who will face charges under its authority. (8)

   When given a copy of his indictment before the IMT, Herman Goring penned the phrase "[t]he victor will always be the judge and the vanquished the accused" across its cover. (9) The Allied Nations suffered terribly during the war, but the Russian jurists represented a system that murdered millions of Stalinist opponents and hence had no greater moral authority than Nazi Germany itself. (10) Since allegations of so-called "victor's justice" have haunted virtually every accountability process since Nuremberg, (11) there is a visceral power in their invocation that could corrode every facet of the trial. In purely legalistic terms, authentic justice must be the product of an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure." (12) If the truth seeking process of trials is overcome by externally imposed limits on judicial independence or politically motivated revenge, the entire process would suffer from a...