Firstly, tribunals of international crimes are driven by a clear imperative to prosecute and convict. In Barayagwiza, the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) recorded that the Attorney General of Rwanda, appearing as amicus curiae, “openly threatened the non-cooperation of the peoples of Rwanda with the Tribunal if faced with an unfavourable decision”. It is clear that there are huge interests in the outcomes of trials, vested in powerful entities, and inconceivable that trial judges are unaware of this.
Secondly, ad hoc tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), the ICTR and the Special Court for Sierra Leone (“SCSL”), are often referred to as “courts of conscience”, based on a belief that they were founded to relieve the itching conscience of the international community, born out of its failure to effectively intervene whilst immense humanitarian disaster was unfolding. In conducting its transnational investigations and sustaining its lengthy trials, the ICTR and ICTY together account for 10 per cent of the total annual UN regular budget. At the time of judgment, vindication of that support is achieved through convictions, not acquittals. There is a real danger that a perceived imperative to facilitate that vindication will influence trial judges.
Thirdly, international tribunals are mandated to provide an historical record of the events on which they adjudicate, the object of which is to foster a sense of reconciliation in a post-conflict region. Professor David Paciocco has described the ensuing dangers as follows: “To begin with, there is an inherent risk of prejudgment. International criminal tribunals invariably turn on the interpretation of historical events that are already believed to be understood. If the decisions of a tribunal do not conform to those expectations, the credibility of the tribunal can be compromised. Yet, if a tribunal allows such expectations to influence outcomes, the law itself is compromised. Indeed, it is defeated and undermined”. He concludes: “History and justice cannot be written at the same time, with the same pen, without distorting both”.
The alternative: trial by jury
The jury is politically independent and, in common law systems, the right to trial by jury is, by and large, regarded as fundamental and jury verdicts are rarely criticised by those who value the importance of a fair trial. Indeed US critics of the International Criminal Court (“ICC”) consider that its largest incompatibility with the American constitution is its failure to provide trial by jury. Importantly, this remains a bar to the full American participation in the ICC.
The jury represents an ideal vehicle to protect the administration of justice from political impeachment. As a cross-section of society, jurors bring their independent and collective judgment to bear on a case, viewed through the lens of their own personal experience. A juror’s provenance—neither politician nor lawyer—is a valuable asset in clean, unprejudiced fact-finding. A juror comes to the case from relative obscurity and, having discharged his or her duty, there returns. The juror is not singled out for criticism and generally he or she has no political affiliations—past, present or future—which might sway the deliberation and taint the purity of the decision.
There are further benefits would precipitate from the use of juries in international trials:
- The tribunals of fact and law would be separated, avoiding the risk that long legal arguments over the admissibility of prejudicial evidence will weigh into the ultimate evaluation of guilt.
- The illogical and arguably antagonistic combination of civil law style judging and adversarial trial advocacy, which is derived from common law and is most effective in front of a jury, would be smoothed.
- Some of the more controversial decisions arising out of international trials concern the determination of mens rea, a question which is not susceptible to precise legal definition and to which therefore a jury is ideally suited.
- Civic participation in the criminal justice system would ensure fulfilment of the social contract and enhance the democratic legitimacy of international law.
- Speaking at the 2008 Temple Festival General Sir Mike Jackson raised concerns that the Law of Armed Conflict is too complex for practical implementation by soldiers in theatre. Acting effectively as a litmus test, if a jury is unable to understand the law, it might be said that it is too complex for operations in the heat of battle and should be simplified.
Confronting the objections
The AMICC, an NGO advocating for US support of the ICC, has observed that trial by jury is “obviously impractical for defendants accused of such horrific crimes”. However, domestic common law systems have for a long time trusted juries with all of the most graphic and heart rending crimes to reach prosecution. Indeed, in most of these cases, the offence will be triable on indictment only, because the demand for trial by jury is most exigent.
It might be argued that jurors will prejudge issues of such notoriety as those brought before international tribunals. The American method of jury selection might go some way to alleviating these concerns. If not entirely satisfied the defence could elect to be tried by judges. International trials are typically long and complex. In Bagosora et al, an ICTR trial chamber heard 408 days of evidence, in a trial spanning four years and eight months. However, the length of trials might be reduced if tighter judicial control was invoked over the number of corroboratory witnesses and the length of cross-examination. It is submitted that parties would accept a heightened level of restraint as quid pro quo for the increased protection to their interests that a jury would provide. In addition, a preference for single rather than joint trials would produce a more concise presentation of evidence.
Furthermore, the indictment could be split in cases where there are clear demarcations in the case against the accused. In Milosevic the prosecution proffered three separate indictments, relating to crimes alleged in Bosnia-Herzegovina, Croatia and Kosovo. One would expect little overlap in the evidence establishing the perpetration of substantive offences. Judicial notice could be taken of the areas of commonality. Separate, shorter trials in these circumstances might be workable and cost-effective.
In common law systems threats to jettison trial by jury in long and complex fraud cases have been fiercely contested. In any case, the conceptual complexity of issues raised in an international trial are outstripped by those encountered in a complex fraud case.
Whilst significant cost would be involved in adequately compensating jurors for their time, substantial savings would be made by the following:
- Retaining one judge instead of three (as currently sit in international trials).
- Reducing the length of trials, as described above.
- Removing the cost of producing long trial judgments. In the Bagosora case the Trial Chamber was in deliberation for some 18 months.
- Virtually eliminating appellate challenges to findings of fact, thereby significantly diminishing the amount of time and cost expended at the appeal stage of each case.
The application of the ICCA
The International Criminal Courts Act 2001 (“the ICCA”) enacted as contrary to UK law the substantive offences of genocide, crimes against humanity and war crimes. These offences are triable on indictment, before a jury. In the court-martial of Corporal Payne and others over the death of the Iraqi civilian Baha Mousa we have already seen the first application of the ICCA. A domestic precedent for a war crimes trial by jury may not therefore be far off.
Empanelling an international jury
A trial by one’s peers, known to us since Magna Carta, would mean a cross-section of society, with potential jurors coming from a range of nations, cultures and prejudices. Jury service on an international war crimes trial must be enforced as a legal obligation, but with reasonable defences to respect international human rights norms such as the right to private life. There should be randomness of selection and adequate remuneration. An entirely international jury would be preferable to one which drew on citizens of the nation itself ravaged by war in order to counter any chance of bias. Jurors would have to communicate in a single working language. This would be a necessary derogation from absolute universality.
Time for a reconsideration
As the ICC tries its first defendants, international criminal justice finds itself, at a critical stage in its development, with a deficit in legitimacy. It is time to re-examine the conventional wisdom. A failure to fully separate politics from justice will, in the words of Justice Hunt, leave a “spreading stain” on this jurisdiction’s reputation. Along with many other benefits which jury participation would engender, a jury would protect against extraneous political considerations which inhibit the true establishment of the much heralded culture of accountability.
Joseph Holmes was Called to the Bar in October 2009. He is an ICTR legal assistant and paralegal to The Baha Mousa Public Inquiry.