By Dora Robinson:
On 5 December the Prosecutor of the International Criminal Court (ICC) withdrew the charges against Kenya’s President Uhuru Kenyatta, who had been charged with crimes against humanity in the wake of the disputed 2007 Kenyan elections, when over 1000 people were killed. This has renewed scrutiny into the challenges of prosecuting international crimes. Iain Morley QC, an international criminal law expert, is well positioned to discuss some of these challenges. He has both defended and prosecuted on the international circuit, working at the International Criminal Tribunal for Rwanda (ICTR), the Special Tribunal for Lebanon (STL) and the International Tribunal for the former Yugoslavia (ICTY). He is also the current chair of the Foreign Office pro bono panel.
Why did you decide to start practising and then continue practising international criminal law?
I had long been interested in international criminal law. I first researched war crimes while a Pegasus Scholar to the Bar of New Zealand in 1993. I was present for the opening of the first trial at the ICTY of Duško Tadić in 1996 [a former local leader of the Serb Democratic Party who was convicted of persecutions, inhuman acts and cruel treatment] and through regular attendance at conferences and in The Hague developed many contacts. I was asked to help Steven Kay QC in October 2004, who was then defending in the Milošević trial. Once inside international criminal law, I found other opportunities, which led to my prosecuting four genocide trials at the ICTR, and to writing the Hariri indictment at the STL. I returned to domestic practice in January 2013.
What are the main differences between how you approach defence and prosecution in international criminal law?
There should be no differences in the approach between domestic and international trials – the prosecutor should be an ‘impartial minister of justice’ and the defence should always apply their instructions, and test the evidence fearlessly. However, in international criminal law there are lawyers from many different jurisdictions, and sometimes the prosecutor wants to win too much, and so a case can become ‘personal’, or the defence will fight too hard, arguing over everything, including matters on which they have no instructions, taking every point, just to mess up the prosecution case. The big difference therefore is that it can be tricky to get though a case swiftly, and to keep things professionally friendly between the parties.
The former President of Yugoslavia, Slobodan Milošević, was charged in 1999 by the ICTY on 66 counts relating to the wars in Bosnia, Croatia and Kosovo in the 1990s. These included ‘complicity in genocide’ relating to the 1995 Srebrenica massacre in Bosnia, where over 8000 Muslim men and boys were executed. You were the assistant to Stephen Kay QC, the court-appointed defence counsel for Slobodan Milošević, what are the biggest challenges when defending somebody who has committed war crimes, like Milošević?
Well, Milošević was not convicted, as he died, so we need to be careful about concluding he did commit such offences. I also think he had quite a good defence to the Kosovo allegations, which was the area I was working on in 2004. The biggest challenge is that too many people in international criminal law cases assume the defendant is guilty, so it can be difficult to feel he is getting a fair trial.
How important do you think it is to have a broad understanding of conflict when working as an international criminal lawyer?
It is not important to have a broad understanding of conflict when working in international criminal law. Instead, you need to be a good lawyer; able to sift large quantities of information for what is probative, and to be able to comprehend what evidence is needed to prove offences. However, in-depth knowledge of the specific conflict in the case is important, so you need to be able to read up efficiently, if you are to get onto the case, as you will not be able to create a rapport with co-workers if you know too little.
In 2010 the International Criminal Court (ICC) charged the current President of Kenya, Uhuru Kenyatta, with crimes against humanity relating to the violence that erupted following the 2007 Presidential elections. After the incumbent President Kibaki declared himself the winner, over 1000 people were killed and 350,000 people were displaced. Whilst Minister for Local Government in Kibaki’s cabinet, Kenyatta allegedly commissioned the Mungiki criminal organisation to carry out widespread attacks against the non-Kikuyu populations in Nakuru and Naivasha. The ICC Prosecutor recently dropped these charges due to a lack of evidence. What do you think this says about the future of international criminal law?
Dropping the case against Kenyatta is a great success for international criminal law, as it shows the Prosecutor to be acting properly like a minister for justice. This means that when the case is weak, there will be no grandstanding by the prosecution, no politics played out in maintaining proceedings for fear of loss of face if not, causing vast expense by requiring a trial and the judges to acquit, rather than making the right decision on the evidence not to trouble the court.
What changes do you think international courts and tribunals should make to move forward in the twenty-first century?
Cases should be shorter, with time limits. Inexperienced lawyers should go. There should be less money paid (which is partly what makes the cases longer). There should be no trials in absentia. Judges should not be academics, but practising domestic trial judges, and ought to be more scrutinized before appointment. Trials should be as local as possible. After a major civil conflict, with 100,000 dead, it is arguable that 10,000 people convicted at a cost of $1000 per trial in a system with a 100 flaws is probably better than 100 convicted at a cost of $10m per trial in a system with only 10 flaws – now there’s something to discuss in class…
Do you think that international criminal law’s focus on ‘individuals who bear the greatest responsibility’ is the best approach to take when the distinction between high and low-level perpetrators is often blurred?
There is no other way – where there are war crimes, there are usually thousands of perpetrators, and international criminal law cannot currently cope with pursuing so many. In choosing who to pursue, we aim for the biggest fish, particularly so that there is not a sense of grievance created by easily convicting those lower in the chain (like the shooters at Srebrenica), and letting off the overall commanders, like Ratko Mladić. [The former Commander of the Bosnian Serb Army was indicted by the ICTY for genocide, crimes against humanity and war crimes in 1995 and is currently on trial after being arrested in 2011.] International criminal law seeks to remove impunity, and this means that if you can’t get everyone, then you go after those at the top.
How compelling do you find the claims that the ICC is a continuation of Western colonialism and that it applies selective justice?
Allegations of colonialism and selective justice are nonsense. Selective justice is the fault of the United Nations Security Council, not the ICC. It is easier to pursue crimes in Africa because there are no geopolitical games at play there. And Africans want their bad leaders held accountable: this is not colonialism.
Dora Robinson is a third year BA War Studies student at King’s College London. Her main interests include international law, international organisations and their roles in contemporary conflict. She is Academic Secretary of the War Studies Society. Like them on Facebook here and follow them on Twitter here @WarStudiesSoc.