A guest blog by Geraldine Coughlan
With Palestine’s complaint against Israel for war crimes, and Sudan’s President Omar al-Bashir fleeing arrest in South Africa lately, the International Criminal Court’s news profile has rarely been higher. But nothing short of the Court’s credibility is at stake when the issue of fair trials arises. Are prosecution and defence fairly balanced?
One crucial question often falls outside the spotlight once proceedings inside the courtroom begin: how can ICC suspects properly defend their cases? A new documentary deals with the subject of defending war criminals. It’s called Kill All The Lawyers and it’s the brainchild of journalist Lisa Clifford. Covering international courts over the years, Lisa says she found the defence lawyers ‘absolutely fascinating’. “I was always intrigued to see the same defence lawyers over and over again. You’d see them in Rwanda, you’d see them again at the Yugoslavia Tribunal, and I started seeing them again at the ICC. This made me wonder why someone would choose to defend war criminals – so I thought that it would make a fantastic film,” says Lisa.
Kill All The Lawyers will be released early next year – and it’s quite different from the previous version of the film. It focuses on David Hooper QC and the case of Congolese warlord, Germain Katanga, who was sentenced to 12 years in prison by the ICC, for being an accessory to war crimes and crimes against humanity.
Lawyer’s new role
This time, Kill All The Lawyers takes a real step forward, with an interesting development. Speaking to Germain Katanga, Lisa asked to see some of the testimony of victims she had spoken to in the village of Bogoro, which his militia is accused of attacking. These survivors of this attack were very critical of Mr. Katanga, of the court and of the entire process. They say that after years of trials, they still receive no justice. “Quite importantly, they don’t think that the process has helped them to forgive at all. So the film is a bit about Germain Katanga’s efforts to make reconciliation with this community, and about David Hooper’s attempts to help his client. So David has stepped away from the traditional role of lawyer, or advocate in court, and what he hopes to do is to help his client to reconcile with these people in Bogoro. So, it’s a really interesting angle and I think it’s a very different way of looking at what justice can do, and the importance of justice in allowing people to find inner peace and to lead happy lives again after such an atrocity,” Lisa says.
Open warfare in court
Out of 36 indictments, the ICC has only seen 2 convictions. And the latest Wilson Quarterly newsletter claims the ICC is ‘bad at prosecuting war criminals’. But Lisa claims says that does not make it easy for the defence to win one of these cases. “There’s the issue of equality of arms and if you talk to enough defence lawyers, they say they don’t get the same resources, even less than the prosecution gets. If you sit in the ICC courtroom, you see the benches filled with prosecution lawyers and less people on the other side of the courtroom, so I think they would argue that it’s really not easy to win these cases. However, Lisa argues that at times it seems that the prosecution has been ‘shooting itself in the foot’. “I think we all remember some of these cases – the Lubanga case, for example, which collapsed, or nearly collapsed, on several occasions. There was open warfare in the courtroom sometimes, between the prosecution and the judge. The judge was suggesting that the prosecutors hadn’t done their job,” says Lisa.
Lisa believes that the problem started, in many of these cases, including the Lubanga and Katanga cases, with poor investigations carried out by the ICC in Congo. “In some cases, they didn’t go to the places where the crimes occurred. They didn’t talk to the victims. They relied on NGOs to talk to the victims on their behalf. And they called these NGOs ‘intermediaries’, who didn’t always do a good job. They weren’t trained properly, for example, and didn’t really know what they were doing. Some of the witnesses they brought to The Hague weren’t really reliable. So, it wasn’t hard for the defence, once the witnesses got on the stand, to tear apart their cases. So, in that way, I see the ICC has worked so far, with really poor investigations. This is something that is widely known and is no surprise to anyone, and it has made the job of the defence a bit easier,” Lisa says.
Costs of justice
Lisa is quick to point out that the ICC’s task is not easy, either, in the face of huge disadvantages – not least, the Court’s very limited budget. “It may sound like a lot of money that they have every year, but that budget’s been held, in some cases it’s been cut, and yet still more cases are being brought to them. So what do they do, how do they afford to travel to these places to do these good investigations? I have a lot of sympathy there. They have a lot of problems with African governments. We hear often that the ICC is a colonial institution, that we are trying to impose ICC justice on situations where it’s not appropriate. In some cases, this is probably true, but in other cases there is a lot of self-interest from Presidents and Prime Ministers from these African countries, who have quite a lot to hide and would rather not have the ICC poking around. So I think on both sides there have been mistakes, but the ICC many times has done itself no favours,” Lisa concludes.
David Hooper expresses his concerns over the effectiveness of international justice, in Kill All The Lawyers. He believes that justice must give effect and support to the rule of law, in order to prevent ‘psychopaths’ in conflicts from taking control and repeatedly ruining the lives of decent people. “Courts and justice are really the final workings of this concept of a rule of law, but take it away & anarchy comes. Unless you address these situations fully & properly, they will haunt the future for another 100 years or more,” Hooper warns.
You can listen to David Hooper in the interview with Lisa Clifford, in GCC Law & Media’s podcast, sponsored by the Peace Palace: www.gcclaw.nl
Photo credit: Kill All The Lawyers
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