International Justice at the Pace of a Snail

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Delays and lengthy hearings are a “corrosive” problem for courts set up by states to try alleged war criminals, according to Britain’s judge at the International Criminal Court in The Hague.

Calling for “a wholesale reassessment of how international war crimes cases are conducted”, Sir Adrian Fulford said that procedures at his own court – which was created nearly eight years ago and has yet to convict a single defendant – were “sometimes reminiscent of the drawn-out intricacies of a minuet at the court of Louis XIV”.

He rejoiced at the existence of international courts such as the tribunals for Rwanda and former Yugoslavia. “But I bemoan the snail’s pace at which they sometimes seem to proceed.”

The High Court judge, who sits at the Old Bailey as Mr Justice Fulford, is currently presiding over the first case to be tried at the world’s first permanent international criminal court. Thomas Lubanga, an alleged Congolese warlord, is accused of using children as weapons of war.

“I was utterly confident when I first went to The Hague that we would prevent our trials at the International Criminal Court from extending into infinity,” Fulford said in London at the end of last week. “I am wiser now and, although our first trial will have lasted, in all, about two years… which is quite respectable by international standards, that is still at least a year longer than I would have wished.”

We are about to hear a defence abuse application (advanced during the defence evidence, which is a first in my experience) and, should the application be refused, there are possibly another 20 witnesses to come. Then there will be submissions, followed by the final decision – which the history of the other international tribunals tends to suggest will run to a number of bound volumes. 

Launching the new edition of Archbold International Criminal Courts as its consultant editor, Fulford said there had been a six-month delay in the Lubanga trial to hear an appeal over whether the charge sheet should be expanded to include allegations of sexual slavery. Similar appeals took two weeks in Britain.

Turning his mind to ways of resolving the problem, Fulford said it was dangerous for a judge in his position to break free from established precedent during a trial and use it as a laboratory to try out radical new courtroom procedures.

“They could endanger the entire process, which may have taken years, because an unfavourable appellate approach may result in a mistrial. Changes of this order, if they are to occur, may well need to be formulated and agreed in advance.”

These were “critical issues” for the review conference being held in Uganda next month by the 111 countries that are parties to the court’s founding statute.

I believe we need to look again, with real urgency, at how we conduct these trials; how we gather and present evidence; whether some substantial areas (such as context, background and the less central facts) can be dealt with exclusively by submitting reports from court-appointed experts, following input from the parties and participants; whether there is room for deposition-taking in situ (in place of in-court evidence) for certain areas of evidence; an increased use of television links rather than bringing witnesses to Europe (we have done this with apparent success for three witnesses in our case); and many other such alternative devices to be used by the defence and prosecution.

Normally, though, evidence was given in person – by witnesses who often needed extensive protection. They had travelled “many hundreds of miles to give evidence in utterly alien surroundings” and were “carefully and sensitively nurtured through the unfamiliar procedure of giving evidence before our court”.

Time was needed for interpretation and transcription. There was also a constant stream of applications – although they were properly brought – leading to oral and written decisions, often running to many pages “which in turn are seemingly spontaneously encrusted with a forest of footnotes”.

Looking at international criminal courts more broadly, Fulford said he simultaneously rejoiced and worried about the current state of play.

“My belief in the importance of these institutions remains undiminished: for instance, the legacy of the Rwandan and Yugoslav tribunals is awesome – they invented something out of nothing.”

But the years had rolled on and these courts were now investigating events that had taken place 15 years earlier. Despite “much-vaunted exit strategies”, these courts still had a long way to run.

The Lebanese Tribunal, set up following the murder of Rafik Hariri, currently has no-one before it – is it to be forced to try all the  relevant accused in absentia? – and the court has been given only a limited mandate to deal with what is in effect a terrorist crime directed at a specific individual.

The Sierra Leone Tribunal is still working, and most notably against Charles Taylor, whose trial began formally on 4 June 2007, with the first witness appearing on 7 January 2008. So three years later that case is still ongoing.

The Cambodian Extraordinary Chambers has been set up to try former senior members of the Khmer Rouge. The judges took up their positions in early July 2006 and the first hearing in the first case was on 4 February 2008. The proceedings ended in November 2009 – the evidence and submissions – but the final decision (on what was effectively a guilty plea) is still pending.

Summing up international war crimes justice as a whole, Fulford delivered a starkly disturbing judgment. “Arguably, it simply all takes so long”.