International criminal prosecutions, human rights, and the law

Seth Engel, 3L, can be reached at see7@law.georgetown.edu.

On Wednesday, November 30th at 5:30pm, Georgetown Law will be hosting a panel exploring contemporary issues of international criminal prosecutions. Along with several other students, I have organized this panel in hopes of exploring some of the most pressing issues facing international justice today: the complementarity principle, wherein the International Criminal Court (ICC) is meant to be a court of last resort, the rights of the accused in a fair trial, and the role of military necessity in international crime. For me, though, this panel is more than just another event discussing important contemporary issues; this panel is designed to explore a tension in human rights law that has come to embody my law school experience.

I once read in a law school evaluation book that “Georgetown is a lion among law schools.” Yet, to me, it is the Georgetown students who are the real assets, merely formed and shaped by the school. Like the month of March in reverse, they come in like a lamb and go out like a lion. With such a heavy emphasis on international law, it is no surprise that such a large percentage of students enter Georgetown somewhat-idealistically hoping to be a “human rights lawyer.”  After law school’s grinding evolution of the brain, though, many if not most change their mind and move on to something else. But the human rights gestalt is nonetheless a driving force in my generation of law students.

On the one hand, we are mobilized by international groups, such as STAND Darfur and Amnesty International, while, on the other, we sympathize with American causes espoused by the ACLU and the Innocence Project. From what I have observed, this has caused two powerful currents of liberal lawyers as they graduate into the work force stream - the public defender and the international human rights lawyer. Under further analysis, however, I suggest that these two professions are in direct tension.

I have worked with a small NGO in West Africa, interned with the Federation International de Droit de l’Homme (FIDH) in Paris, and clerked at the ICC in The Hague, Netherlands. I’ve seen my fair share of human rights lawyers. A common thread among them, which I find most disturbing, is the thirst and lust for prosecuting the alleged perpetrators of human rights violations. It is true, groups such as Amnesty International, Human Rights Watch, and FIDH have extremely legitimate aims in attempting to shine a light upon the violations, massacres, tortures, rapes, deportations, and pillages committed around the world. That being said, the focus of this new wave of human rights lawyers is almost entirely on prosecuting, to the detriment of the actual criminal justice processes themselves. The evidence of this tension, between the emphasis on prosecuting and the desire for a legitimate trial, is everywhere. The “peace versus justice” debate, which has taken place recently in The Economist and the ICC Internship/Visiting Professional Debate Programme, exemplifies the tension. Did the ICC’s al-Bashir arrest warrant come at the expense of a valuable NGO presence in Darfur, who some argue were expelled in part due to the arrest warrant’s issuance? Did the ICC arrest warrants for Joseph Kony and his LRA underlings stall the peace process in northern Uganda? Did the International Criminal Tribunal for Rwanda (ICTR) stir up more conflict and political turmoil than it actually resolved?

These important questions are too often ignored. When I interned at the ICC, I worked in the Office of Public Counsel for Defense (OPCD), which is the rough equivalent of the Legal Aid Society and serves as a sort of collective memory and strategic database for ICC defense teams. Instead of dealing with poor clients, however, the OPCD handles clients who are dealt the worst possible deal in a criminal case; literally, the entire world is against them. If you asked someone what she thought of when she heard the name Moammar, the word “monster” would nearly inevitably arrive at some point in the conversation. You ask someone about al-Bashir’s presidency in Sudan and the same thing will occur for the word “genocide.” Is there any doubt as to why people question the legitimacy of ICC trials? Especially when the Prosecutor himself engages in this kind of rhetoric. Instead of remaining “impartial” (as required by the ICC’s Rome Statute) and instead of saying the accused were allegedly guilty or that the evidence suggests a certain conclusion (as required by several Pre-Trial Chamber rulings), Luis Moreno-Ocampo repeatedly called Gaddafi a murderer, torturer, and responsible for mass rape. Since Gaddafi was not in ICC custody, he did not even have a lawyer at this time. The OPCD filed a motion on his behalf arguing that his press conferences on Libya were violating the presumption of innocence.

I realize that the above paragraph sounds alarmingly like the rants of a public defender. Well, this is exactly the type of tension I am describing. I’d estimate that three-quarters of my public-interest friends who graduated from Georgetown Law this past year have seriously considered working as a public defender. At the same time, nearly all of us, myself included, arrived at law school considering becoming a “human rights lawyer.” While I agree that a public defender is indeed the most ardent bulwark for the human rights of the poor and downtrodden, many would not say the same thing for the valiant lawyers at the OPCD of the ICC. The question most posed to a public defender is the following: “how could you defend someone who you know is guilty?” It is this prejudice that public defenders face on a daily basis, in which the accused is so publicly reviled that he is already assumed to be guilty - and the job of a public defender is to incessantly and courageously battle against it.

This is the uphill fight faced by the OPCD of the ICC and the defense lawyers of the Gaddaffis and al-Bashirs of the world. And this battle is not made any easier with the flood of amici briefs, condemning reports, and expert testimony of human rights lawyers that are admissible evidence at the ICC and handily utilized by the Office of the Prosecutor. On the architrave of the New York City Supreme Court Building, it is written: “The true administration of justice is the firmest pillar of good government.” Without true administration, which undoubtedly includes the presumption of innocence, the right to an unbiased trial, and the right to a zealous defense, there can be no good government and no fair trial. This is a premise worth noting for future and current human rights lawyers, something that has been a staple of public defender philosophy for decades; even allegedly moral monsters deserve a fair trial, no matter what they are accused to have done.

The door is opening a crack and the internal tensions within human rights law, particularly in the field of international criminal justice, are beginning to shine through. It is this evolution that turn 1Ls into able law graduates, a process that Georgetown Law has mastered in many ways, and a process that turns us into the confident, ambitious alumni scattered throughout the world. I hope that the panel “Contemporary Issues in International Criminal Prosecutions” will further this cause and I hope to see you there.

‘Contemporary Issues in International Criminal Prosecutions’ will take place on Wednesday, November 30th at 5:30pm in Hart Auditorium. Reception to follow.