The American Bar Association led a 70-person delegation to The Hague in April 2017 as part of a continuing legal education series in international justice systems. Participants heard from judges, attorneys, and senior administrators for international courts housed at The Hague and other specialized courts around the globe addressing legal issues on an international level. The program engaged participants in thoughtful discussions of the missions and operations of international courts. Topics ranged widely, including the development of international criminal law, how to reconcile differences between the legal systems involved, and thorny matters like translation, detention and punishment, security, and the treatment of witnesses to atrocities.
The chair of the ABA Judicial Division, U.S. Air Force colonel (ret.) Linda Murnane, organized the international exchange and led the delegation. Murnane spent nearly a decade in senior legal positions in the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL). She previously spent 30 years as a lawyer and military judge within the U.S. Air Force, including as the chief circuit judge in Europe with jurisdiction over trials conducted in the war zones in U.S.-led Operation Iraqi Freedom and Operation Enduring Freedom.
International Courts at The Hague
The Hague, a small city west of Amsterdam, is the royal seat and capital of the Netherlands. It also hosts the world’s international courts. Outside the Peace Palace stands an early 20th century monument to hopes for international peace and inside the International Court of Justice (ICJ) and the Permanent Court for Arbitration. The ICJ deals with inter-state disputes, such as boundaries, access to water and other resources, migration, and other humanitarian matters.
In various locales around The Hague sit several international criminal courts. These include the International Criminal Court (ICC), established by 120 nations in the Rome Statute of the International Criminal Court, and several ad hoc international criminal tribunals that the UN Security Council created after the Cold War ended. The first came in 1993, when the UN Security Council navigated conflicting political agendas to establish and fund the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) to prosecute individuals for genocide and other heinous crimes committed during the civil wars in the former Yugoslavia. The ad hoc International Criminal Tribunal for Rwanda (ICTR), which was established in 1994 in Tanzania and closed in 2015, had its Appeals Chamber at The Hague. A Special Tribunal for Lebanon, inaugurated in 2009 and headquartered at The Hague, is responsible for investigating and prosecuting the assassination of Lebanon’s former Prime Minister Rafik Hariri and 21 other people. The Extraordinary Chambers in the Courts of Cambodia (ECCC), established as a special Cambodian court in 1997, represents a hybrid court with the United Nations and is located in Cambodia.
The following brief sections describe various aspects of what participants learned and discussed.
International Criminal Courts and Tribunals
The international criminal courts and ad hoc tribunals each create their own procedures and practices, but there are important commonalities. All have both common law and civil law judges, use a blend of those procedures, have English and French as official languages, and support extensive translation services to accommodate witnesses and spectators. Tight security protects facilities, personnel, victims and witnesses, visitors, and information technology systems. All the courts and their staff work to legitimate the concept of world justice by providing defendants with strict procedural fairness and the scrupulous use of evidence while demonstrating respect and care for victims.
Judge Gary LaFleur from Chandler, Arizona, observed that these courts are painstakingly producing indisputable records of fact for humanity and history, records that will prevent revisionists from rewriting history to gloss over their crimes. International criminal courts and tribunals give dignity to the victims and affirm the fundamental principle that organized genocide and crimes against humanity are intolerable to us all.
International Criminal Court
Our visit to the ICC, which was not in session, proved revelatory in several ways. First was the extraordinary level of security, a necessary precaution considering the nature of its defendants and the extreme emotions that its proceedings evoke. We also learned that, in addition to providing a measure of justice by convicting those otherwise immune from consequences for their crimes against humanity, the ICC tries to secure or fund reparations to victims. Perhaps most striking was the fact that, although created 19 years ago and budgeted at 150 million euros in 2016, the ICC has convicted only 23 people.
There are two basic reasons: (1) The ICC only acts if the locale of the crimes cannot or will not do so. Consequently, the process of catching suspects and gathering evidence for the heinous crimes it prosecutes is arduous and time consuming, and (2) The need for extreme procedural care, political diplomacy, respect for victims, and high security makes the ICC process glacial and costly.
Special Tribunal for Lebanon (STL)
The Special Tribunal for Lebanon (STL) was formed to find and try, under Lebanese law, those who assassinated former Prime Minister Rafik Hariri and 21 others. The STL Chambers consist of 11 judges, one of whom sits in the “pre-trial chamber.” The “trial chamber” has one Lebanese and two international judges, and one Lebanese and one international alternate. An “appeals chamber” consists of two Lebanese and three international judges. This mixture of judges aims to ensure that Lebanese law is applied correctly but impartially.
The Security Council’s criminal tribunals at The Hague are independent judicial organizations, so no legal framework defines their operations. Instead, a “Registry” is responsible for essentially all non-judicial functions. It organizes court proceedings; provides transcriptions, translation, and interpretation; archives court records; and provides facilities management and security, human resources, finance, legal advice, information technology, public information, and communications.
The STL has no police force to enforce judicial orders (e.g., subpoena witnesses and evidence). Instead, it relies on cooperating states to carry out court orders and to locate and protect witnesses. Accordingly, diplomacy is an important aspect of the Registry’s work.
An example illustrates diplomacy’s importance. The STL’s first investigating magistrate apparently proceeded so aggressively that Hezbollah and Syria, whose adherents were suspects, terminated cooperation. Only a subsequent magistrate’s meticulously fair approach to the evidence allowed the tribunal to reach the trial stage of its work.
Our group was able to tour the courtroom and listen to an evidentiary motion at the STL. We also heard interesting presentations from the president, the registrar of the STL, the Victim Participation Unit, Court Management Services, a prosecutor (Norman Farrell), and two defense counsel.
The trial of the four STL defendants began in January 2014. It is a trial “in absentia,” as the defendants cannot be found. The international community believes strongly that to establish the public record of what happened and who is responsible, a trial is important and necessary even if the presence of the defendants cannot be secured. They nevertheless get court-appointed defense counsel. The ability to request a retrial after the case is over is guaranteed if a defendant would ever personally appear, whether during trial or after conviction. Because the STL exists only to prosecute crimes associated with one event, it will terminate after the present trial ends.
Mixing Common Law and Civil Law
Because the judges and lawyers of the international courts are drawn from both common law and civil law traditions, the effort to blend the systems has generated misunderstanding and conflict. For instance, cross-examination is standard in common law systems but unheard of in the civil law, where a trained investigating judge gathers and presents the case. Defense attorneys may challenge the presentation,but rarely, if ever, gather or present evidence. As one civil lawyer complained, the blended procedure led to two prosecutors, one who prepared the preliminary case and another who brought it to trial.
Supreme Court of the Netherlands
Our delegation also enjoyed a reception at the Dutch Supreme Court. It consists of 36 members (appointed for life) who specialize in particular types of case. Interestingly, the Dutch Supreme Court may not determine the constitutionality of statutes enacted by parliament or of treaties, but it does determine if statutes conform to international treaties such as the European Convention on Human Rights. The Dutch Supreme Court may annul lower court judgments if they are contrary to law or lacking adequate judicial reasoning. Its rulings in these cases serve as precedents for Dutch courts. It also reviews the constitutionality of provincial and municipal enactments.
Support Functions and Use of Experts
An interesting presentation regarding complex financial products came from the visit’s co-sponsor, P.R.I.M.E. Finance, a private consulting firm. Working with the Permanent Court of Arbitration, it offers financially knowledgeable expert arbitrators, mediators, and analysts, plus administrative support concerning financial industry-standard documentation and subjects like comparative law and market practices for derivatives and other financial products. The presentation underlined the importance, in the international law context, of understanding the relatively arcane and rapidly changing field of finance via the use of experts. The discussion touched on possible collaboration with the ABA Judicial Division on the development of a bench book and other judicial tools concerning complex financial products.