DEFENDING WAR CRIMES SUSPECTS IS BOUND TO BE UNPOPULAR. BUT WITHOUT DUE PROCESS, INTERNATIONAL TRIBUNALS WON'T SERVE JUSTICE.
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, Anton 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. …