The Influence of Attorney Background on Judicial Decision Making at the International Criminal Tribunal for Rwanda
Meernik, James, Farris, Christopher, Judicature
Mations of the world are increasingly resorting to international law to adjudicate and resolve violent disputes and wars in places as diverse as the former Yugoslavia, Rwanda, Sierra Leone, East Timor, and Cambodia. The end of the Cold War, a heightened resolve to hold accountable brutal dictators who had acted with impunity because of an international reluctance to violate national sovereignty norms, and the success of the Rwandan and Yugoslav tribunals have led to greater demands for international justice and the enforcement of international humanitarian laws.
This movement to provide international justice culminated in the establishment of the permanent International Criminal Court (ICC) to prosecute those suspected of violating international humanitarian laws. Whether one supports or opposes this increasing legalization in international relations, it is an inescapable fact that international criminal and humanitarian law are becoming more codified and supplemented by a plethora of important judicial decisions coming from these international tribunals, and that the international machinery of justice is becoming increasingly institutionalized.
As the creation and utilization of these international institutions continue, the demand for experienced international defense lawyers will also continue to grow. The international courts are developing a substantial base of expertise and personnel skilled in this fairly novel area of international law, and are supported by a significant commitment of resources from the international community. As reliance upon international law to adjudicate conflicts continues, this prosecutorial advantage in expertise and support can only grow as well.
But what of those charged with the defense of alleged war criminals? Are they equally as skilled and also provided with sufficient resources to defend their clients to ensure an equality of arms in the courtroom? Are some of these defense lawyers better prepared than others to defend their clients? Many critics charge that there is an inequality of arms between the relative experience of the prosecution and that of the defense. This preliminary analysis seeks a better understanding of this issue by exploring how defense experience and background might affect the outcome of international criminal trials.
The international criminal tribunals are unique hybrids of international law, common law practices, civil law practices, and their own rules of procedure and evidence that have often developed sut generis in response to the tribunals' own changing needs and circumstances. Therefore, we must wonder to what extent the background of defense attorneys influences their ability to argue successfully their clients' cases in these unique environments. Are lawyers skilled in the arts of courtroom argumentation belter able to defend their clients in the adversarial proceedings of the international tribunals? Are defense attorneys coming from nations whose judicial systems provide for greater judicial independence and fairer trials better able to adapt to the Western model of justice the tribunals rely upon? (an increasing the number of a defendant's attorneys help alleviate the advantages enjoyed by the prosecution in expertise, resources, and institutional memory?
This article focuses on the International Criminal Tribunal for Rwanda (ICTR), which despite the lack of attention accorded to it in comparison to the International Criminal Tribunal for the Former Yugoslavia (ICTY), has issued a number of important rulings and precedents in international law. The ICTR is also unique in the wide variety of defense attorneys who practice before it and hail from around the world. While defendants at the ICTY generally choose lawyers from the former Yugoslavia, defense attorneys at the ICTR have come from a variety of common law, civil law, customary law, and developed, developing, democratic, and non-democratic nations.
The article investigates what role defense attorney backgrounds play in the likelihood of obtaining a verdict or sentence favorable to their clients. …