Tuesday, August 5, 2008

Defense counsel on "show trial" claims

First, my thanks to the IntLawGrrls for inviting me to be a guest blogger. I am glad to be a part of the blog’s ongoing discussion of timely and relevant international law topics.
As this blog and media around the world have reported, the former Bosnian Serb leader accused of genocide and crimes against humanity, Radovan Karadžić, has just been handed over to the International Tribunal for the former Yugoslavia for prosecution. He has already declared that he would like to represent himself. In doing so, he may intend to follow in the footsteps of Slobodan Milosevic and Vojislav Seselj, both of whom represented themselves and tried to turn the ICTY proceedings into a show for audiences back home. Karadžić is reportedly still considered a hero by some Serbs, with poems in his honor being recited at nationalist gatherings at Belgrade pubs. The prosecution at the ICTY is understandably concerned that, by representing himself in The Hague, Karadžić will do his best to politicize the proceedings and score points with his nationalist supporters.
Karadžić’s plan to represent himself, and the possibility that he will attempt to use the trial as a platform for political statements, feeds into a popular image of international criminal trials turned into a show by conniving defendants and their attorneys. In fact, the Milosevic and Seselj trials do not accurately represent the vast majority of international criminal trials. In most such trials, the defense does not attempt to politicize the proceedings. (credit for photo of ICTY session) Instead, they approach the process in much the same way as do defendants and their counsel in most ordinary domestic proceedings — refraining from political statements, and instead simply putting forward their best legal and factual defenses to the offenses charged. This is one of the main findings of my article on Defense Perspectives in Law and Politics in International Criminal Trials, 48 Va. J. Intl’l. L. 529 (2008).
My article addresses a larger, fundamental question about the purposes of international criminal trials:

Do international criminal trials serve primarily legal purposes, similar to the objectives of domestic trials, or do they serve primarily political purposes, such as helping communities heal and compiling an accurate record of the past?

The article examines this question through the perspectives of an overlooked, but important, participant in these trials—the defense attorney. Through personal interviews, scholarly articles, and case law, I analyze the attorneys' motivations, strategies, and tactics in representing defendants at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In particular, I ask whether defense attorneys believe that international criminal trials serve primarily adjudicative or primarily political purposes.
The survey finds that defense attorneys believe that these trials are much farther from being constructed primarily to satisfy political purposes, and much nearer to being truly adjudicative proceedings whose crucial function is to separate the guilty from the innocent. Defense attorneys believe that a good number of their clients are innocent and that acquittals are possible. Their perceptions, I argue, are not merely inevitable products of the role they play, but are supported by an increasing number of acquittals, dismissals, and vigorous debates about liability doctrines and rules of procedure. Finally, and contrary to some perceptions, most defense attorneys do not view political statements or attacks as appropriate tactics in international criminal trials and instead focus on factual and legal challenges to the prosecution's case.
Even as international trials retain their unique political importance, the attitudes of those actually engaged in them reflect their character as primarily adjudicative proceedings. Importantly, as key players in the trials, defense attorneys not only reflect, but also influence the proceedings, shifting them toward the adjudicative model.

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