On the face of it, Luka Misetic seemed an unlikely choice to defend a war crimes suspect. In late 1997, the Notre Dame Law School graduate had been a member of the Illinois bar for just over a year. His only clients had been businesses involved in intellectual property disputes and other such matters. But his lack of experience in international criminal law did not bother the suspect, a Bosnian Croat, who appealed for legal help. Misetic spoke the language (his parents are Croatian), and that was what mattered. The 27-year-old lawyer felt he could not turn his back on a defendant in need. He took on the case unhesitatingly, but with a sense of awe. "Suddenly," he recalls, "I went from being a person who usually represented corporate entities in litigation to somebody who was an individual's only friend"--and that individual, Anto Furundzija, was accused of unspeakable acts by the representatives of the civilized world.
Furundzija was among the medium fish caught by NATO in the aftermath of the Bosnian war. He had led a paramilitary unit of the Bosnian Croat army that fought the forces of the new Republic of Bosnia and Herzegovina in the first half of 1993. Furundzija's men, known as the "Jokers," had been active in and around the central city of Vitez. The incident for which Furundzija was indicted was the torture of a Muslim woman at the Jokers' headquarters in May of 1993. She was forced to strip in front of dozens of men; one of them ran a knife over her body and up her inner thigh, threatened to cut out her vagina if she did not tell the truth, and raped her several times. According to a 1995 indictment, Furundzija was conducting the interrogation at the time. On December 18, 1997, Dutch troops within NATO's Stabilization Force in Bosnia caught up with Furundzija and bundled him off to The Hague to be tried for war crimes.
Having agreed to represent Furundzija, Misetic faced a number of challenges he hadn't bargained for. As he found out, the lawyer for a war crimes suspect must cope with obstacles the average domestic lawyer isn't likely to face in a lifetime of law.
Facing the Court
The International Criminal Tribunal for the former Yugoslavia (ICTY), set up in 1993 in The Hague, was a breakthrough in humanitarian law. For the first time since the Nuremberg and Tokyo trials, individuals, including high-ranking officials, were liable to be prosecuted for atrocities. In 1994 the establishment in Tanzania of a similar tribunal for the Rwandan genocide was a further milestone. But in the rush to bring suspected war criminals to justice, the tribunals were set up in such a way that the prosecution has received the lion's share of the international community's resources--and attention.
As Misetic soon found out, the inequality of arms can be daunting. Speaking of his first appearance in the main courtroom in The Hague, he recalls, "It was my client--and me. And on the other side, there were several prosecutors sitting there; it felt like David and Goliath almost when I first walked in." No wonder: The Office of the Prosecutor is a full-fledged branch of the tribunal with its own budget--about 40 percent of the $100 million the ICTY gets from the UN every year. The defense receives only a fraction of this and does not have a separate office or budget. When savings needed to be made in May, the tribunal's registrar decided to cap legal aid to indigent defendants.
In addition to the shortage of funds, defense lawyers are concerned with the erosion of suspects' rights. In the early 1990s, the major powers were under intense pressure to "do something" about the wars in the former Yugoslavia. When the UN Security Council finally set up the International Criminal Tribunal, critics argued that this was not enough and that military action was needed. The circumstances were not ideal to shield the tribunal from political pressure. The mood of the times is neatly captured in the opening sentence of the tribunal's statute: Its aim is the "Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law" (as opposed to accused of serious violations)--shedding doubt on the presumption of innocence stated further down in the text.
Those accused of war crimes are denied some of the basic protections defendants enjoy in the common-law tradition of Anglo-Saxon countries. Suspects at the tribunals for the former Yugoslavia and Rwanda are tried by three-judge panels and do not have the option of a trial by jury. Neither are they automatically entitled to public hearings. In the Furundzija case, as in other rape cases tried in The Hague, key hearings have been held in closed session. The point is to protect the rights of victims. Fair enough--but there appears to be an almost casual assumption that these must trump the rights of the accused.
At the root of the problem is the hybrid nature of war crimes tribunals. They draw from two distinct traditions: the "adversarial" system of English common law, where the prosecution and the defense clash and the judge acts as a neutral referee, and the "inquisitorial" civil law tradition of continental Europe, in which judges take an active role in seeking out the truth. Élise Groulx, president of the International Criminal Defence Attorneys Association, is concerned that the new dual system being built might be unconsciously geared toward securing convictions, and her group is fighting to restore some balance in the future International Criminal Court.
Such concerns remain the minority view within the legal community. After all, judges in war crimes cases do their best to be fair and censure prosecutors when they break the rules. The Furundzija case provides a good illustration. In July 1998, after both sides had rested their case, the prosecution revealed that the victim had been treated for Post-Traumatic Stress Disorder. Misetic cried foul: He should have been given this information during the trial, he argued, to determine whether the victim's condition had affected her testimony. The judges agreed, and the trial had to begin all over again. In the end, however, they rejected Misetic's argument that the victim's recollections were confused and that the defendant was not present at her interrogation. Furundzija was found guilty and sentenced to 10 years in jail. The defense is appealing, contending that the judges ignored crucial testimony backing its version of events.
Whether or not justice was served in this particular case, the question remains: How can it best be seen to be served in war crimes trials? Defense lawyers argue that opening up the proceedings and doing more to uphold defendants' rights would protect not just the suspects but the judges. "Ultimately if [suspects are] acquitted, then we should be thankful that they had counsel to prove their innocence," Misetic says. "And if they're convicted, then we know that they were able to put on their best defense and yet, in the end, justice prevailed."
Facing the Press
Another challenge to the defense in international criminal tribunals comes from outside the courtroom. The media, which in domestic cases usually act as a powerful check on the accusatorial powers of the state, play the opposite role in cases of war crimes. Some of the bias is unthinking: Phrases like "indicted war criminal" are used routinely. A search on a news database returns more than a thousand articles with that phrase in the past year--from sources such as The Washington Post, The Financial Times, the Associated Press, Time, Newsweek, and The Economist. My own organization, the BBC World Service, which usually bends over backward to sound impartial, recently used the phrase to describe Yugoslav Defense Minister Dragoljub Ojdanic. A trainee on a local newspaper who referred to someone charged with selling crack cocaine as an "indicted drug dealer" would get a rap over the knuckles from his editor and a stern lecture on the presumption of innocence. Yet major news organizations ignore this basic principle in reporting on war crimes cases.
As a rule, the media cover the proceedings in The Hague from the point of view of the prosecution. This is particularly striking in sophisticated publications that rarely bay for defendants' blood in their coverage of criminal cases. The Atlantic Monthly recently ran an article on the International Criminal Tribunal focusing on former Chief Prosecutor Louise Arbour. The piece, entitled "A New Kind of Justice" (by Charles Trueheart, a Paris correspondent for The Washington Post), gives the impression that the growing body of human rights law is entirely driven by the prosecution. The author favorably contrasts Arbour with her more cautious predecessor, Richard Goldstone, and cites the case of the tribunal's first prisoner, a Bosnian Serb whose "agonizingly ponderous trial (appeals of his conviction stretched into this year) would come to epitomize the shortcomings of justice in The Hague." When it comes to war crimes, the possibility for defendants to slow down the wheels of justice through the appeals process is seen as a shortcoming.
Another recent example of lopsided reporting is an article in The National Journal on the tribunal's achievements so far. The piece starts with the evidence presented by the prosecution at the trial of a Bosnian-Serb general (not a word on the defense's case), before getting to the main point: The tribunal has achieved "a number of remarkable milestones and firsts." High-level "indicted war criminals" are now being brought to justice; useful precedents are being set for when the International Criminal Court takes over for the existing ad hoc tribunals and assumes jurisdiction over all cases of war crimes, genocide, and crimes against humanity. But would anyone assess a domestic tribunal on the basis of how many convictions it secures? Should not courts of law be judged on whether justice is served, which in the normal course of things would necessarily involve convictions and acquittals?
Assuming, as we must, that the tribunal gets it right almost all the time leaves a nagging question. How can skeptics in the Balkans be won over? Education and reconciliation, after all, were among the main missions of the tribunal. Journalists could help by providing both fairer and more thorough coverage of the proceedings. On a normal day, only a few reporters can be spotted around the courtrooms in The Hague. Trial openings and verdicts attract media attention, but these are arguably the least interesting parts of a case. It is in the struggle over evidence and testimonies that defense attorneys, prosecutors, and judges can be seen doing their most useful--and eye-opening--work.
The lack of journalistic interest in the tribunal's daily work--compounded by the secrecy of many hearings--is particularly unfortunate given the distorted vision of the proceedings that prevails in the Balkans. As Misetic notes, "Ten times out of ten--I would say not nine times but ten--the people in the region view the judgements of the tribunal on the basis of their own ethnic affiliation." When a Bosnian Croat is convicted, his fellow Bosnian Croats conclude that the judges are prejudiced against them; Bosnian Muslims believe that justice was served. The dearth of information coming out of The Hague does nothing to promote the tribunal's aim of reconciliation or to reassure people that its decisions are based solely on the facts and the law.
Human Rights Versus Due Process
In the court of public opinion, to be indicted by a UN tribunal is to be guilty. When the label "war crimes" is attached to an offense, prosecutors automatically become heroes, and suspects villains. But from the standpoint of a defense lawyer, perhaps the most dispiriting aspect of this warped debate is the position taken by civil rights and human rights groups.
Advocates who at home dare to brave public prejudice by standing up for people accused of mass murder are suddenly reluctant to take a principled stand for the rights of defendants. At the beginning of the Furundzija case, Misetic contacted the Center for Civil and Human Rights of the Notre Dame Law School, his alma mater. The school had taught Misetic lessons that stayed with him: The most unappealing suspects have a right to be represented; turn them down only if you're prepared to see them face prosecution alone. But when Misetic sought advice on defending his unpopular client, the Center for Civil and Human Rights was in no position to help. Its associate director, Garth Meintjes, told Misetic that he was placing graduates as trainees with the Office of the Prosecutor and that there would have been a conflict of interest if the Center got involved with the defense. "I was disappointed that someone for whom I had so much respect would take this position," Misetic says. Later, during the battle over the medical records, he was stunned when the Center filed an amicus brief against him. Meintjes believed the defense was trying to use the trauma suffered by a rape victim to cast doubt on her testimony. The victim, Meintjes says, had to be protected "from being violated a second time by abusive tactics from the defense."
In general, human rights organizations readily sympathize with the prosecution in war crimes cases. This is obvious in the ongoing talks in New York on the ground rules for the International Criminal Court. Delegates from about 160 countries are taking part, with a coalition of nongovernmental organizations (NGOs) playing a significant consulting role. NGO reports on the proceedings do mention the rights of the accused. But their main message is pithily summed up by Human Rights Watch: "Delegates are urged to ensure that the Rules do not add to the burdens of the Prosecutor, create additional procedural steps or further limit the Court's jurisdiction." The Lawyers Committee for Human Rights, for its part, frets that the draft rules under which the prosecution would have to seek authorization from judges before launching an inquiry could "lead to unnecessary delay" and represent "a needless addition to the burden on the Prosecutor at the earliest stage of an investigation."
Some human rights groups ape the tactics of law-and-order conservatives. The Washington-based Coalition for International Justice has a Web site--War Criminal Watch--similar in tone to the lurid TV shows liberals are supposed to loathe. The site flashes pictures of the "UN most wanted" and provides a feedback form for people who may have spotted them. A link is also available to Interpol's mug shot of Yugoslav President Slobodan Milosevic, which comes complete with the warning "Person may be dangerous." Despite the disclaimer that "our mission is not to convict suspects before they have had a chance for a fair trial," it's hard to come away from this rogues' gallery with the impression that any of them is presumed innocent.
The NGO motives are admirable. The mission of most of these organizations involves sticking up for victims. It is easy to see why a group like REDRESS, which seeks compensation for torture survivors, should consign the rights of the accused to a short paragraph at the end of its list of recommendations on reparations for victims. Protecting the bank accounts of former Argentinian colonels who might be misidentified as torturers was, understandably, never foremost in the minds of REDRESS activists. And because NGOs have led the good fight against impunity for dictators, the war crimes tribunals are in many ways their offspring.
The first two chief prosecutors in The Hague were fittingly drawn from the human rights and civil rights communities. But now that UN tribunals are at work, a change of mind-set is needed. The emphasis on a result (trying suspects) is not enough. At least equal attention ought to be paid to the process. The best analogy is war. While fighting continues, what counts is an outcome--victory. The process (respect for rules of war and for civil liberties) matters, but less so. After the war, reconciliation must take precedence--and this is driven by neutral rules. In the debate over war crimes trials, those who treat defendants' rights as an afterthought rather than a priority are continuing the war by other means. Such a result-oriented approach is unjust, however just the war was.
Of course, it is difficult for decent people to consider indicted Yugoslav, Rwandan, and someday perhaps Khmer Rouge leaders as innocent until proven otherwise. But why should we be less fastidious about their rights than we are about those of domestic defendants? Why should the enormity of the crime lessen the burden of proof? It would help to realize that by going out of our way to treat war crimes suspects fairly, we do not endorse the Milosevics and Pol Pots of this world. On the contrary, we highlight the difference between our idea of justice and the vengeful fantasies these despots nurture. And in the end, we take satisfaction in locking them up if we have to. As Luka Misetic puts it, "When we defend the rule of law, we defend it for ourselves." ¤
Addendum, July 25th, 2000:
On Friday, July 21st, the War Crimes Tribunal in The Hague
dismissed Anto Furundzija's appeal.
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