I’m currently interning at the Colorado Public Defender’s office. Coming by this internship was difficult, because last summer I interned for the Office of the Prosecutor (OTP) at the Special Tribunal for Lebanon (STL).
My focus in law school has been on international criminal law. When faced with the established international crimes –genocide, war crimes, and crimes against humanity, it seems like a shoe-in that one would work for the Prosecution. I never gave it much thought –until, while interning at the STL, I had the benefit of viewing The Khmer Rouge and The Man of Non Violence. The film was about Francois Roux’s defense at the Cambodian Tribunal (ECCC), of Duch. Duch oversaw S-21, the infamous prison camp where thousands of Cambodians were held for interrogation and torture during the Khmer Rouge regime that devastated Cambodia in the 1970s. Of the 14,000 people known to have entered S-21, only seven survived. At the ECCC, Duch was charged with war crimes and crimes against humanity. Mr. Roux also defended the “20th Hijacker” of the 9/11 events -Zacarias Moussaoui. What goes into defending someone like this?
When I was interviewing across the Front Range for an internship at the PD’s office, I inevitably had to answer how and why I had worked for the OTP at the STL, and how and why I now thought I could work for defense. This included part of the normal line of questioning –how will I handle a situation where my client tells me he’s guilty, where it is a crime of violence against a person, a sex offense, etc. These were difficult questions to answer, and I am still grappling with the issues (I was a philosophy major in college –this does not make things easier.) I answered the question of how I could work at the OTP at the STL in this way: I believe there is a similarity in the underlying values of international prosecution and domestic defense. In essence, in most cases you are defending the little guy, the voiceless, against the big and powerful. In international prosecution, the victims are often powerless citizens that have suffered extremely at the hands of the state –it’s the state officers that are on trial. In domestic defense, as a Public Defender you are most often being a voice for an indigent client, often caught in the cycle of the criminal justice system, against the hands of powerful and often impersonal State.
But the question of how I might defend someone who told me they were guilty, or potentially committed a violent crime against another person and I will help to get back on the street –continues to stick with me. Only experience will shed light on these complicated issues at the PD’s office. But in the meantime, I want to hark back on my experience at the international criminal tribunals to compare and contrast international criminal defense with domestic criminal defense. Maybe my exploration will help shed light on the overall subject for me…would it be too much to ask that it would for you too?
Francois Roux’s Defense of Duch at the ECCC
Francois Roux is currently the head of Defense at the STL, but prior to that he has vast experience in international defense. He categorizes himself as a disciple of Gandhi, defender of those who practice civil disobedience, and believer in non-violence. I had the immense privilege of meeting Mr. Roux in the cafeteria of the STL with some of my fellow interns. We barraged him with questions about how he was able to do the work that he does. He also said “remember, a man must never be reduced to his crimes. He is more than that.” My colleague, Will Xu, wrote about our insightful experience with Mr. Roux better than I can attempt to:
"Francois is motivated by the potential for redemption. This redemption is not just for the accused, but for society at large. In reducing the man to his crime, we paint the world black and white. There is no mercy, no rule of law, and we strike him down with a judgment amounting to blind vengeance. But, there is a difference between vengeance and justice. There can only be redemption through justice.
And what is justice? “A just punishment is a punishment the accused is willing to accept. Only then can there be redemption.” If Francois can obtain a “just” sentence for his client, he will have obtained the elusive consensus between the victims and perpetrators. Only if the perpetrators recognize their wrongs can the long process to potential reconciliation begin. As the defense lawyer, he is one who tunes our moral compass as “civilized” peoples."
One of Mr. Roux’s moving yet tactical skills is his ability to bring out the humanity of the Defendant. During his closing argument to the court for Duch, he stated:
"The task of the lawyer, particularly of a defence lawyer, who is being charged with such serious crimes is not easy, however, we always hold one major advantage over the Co-Prosecutors. They have all of the means possible at their disposal. They have a full team. They have experts. They have assistants. They have everything that they could possibly ask for, but they lack one thing. That is contact. They lack contact with the accused person.
We the defence, we meet with the accused person in his prison cell in private moments where he is able to speak openly, where he is able to speak freely from the heart. We see what you, Mr. And Ms. Prosecutor, are unable to see. We see an accused person who tries to hide himself discreetly and when he collapses in tears there is no one other than his own lawyers who are able to witness the tears that he sheds on the graves of the children who died. That is what we bear witness to. And that is what I testify to today."
In the film I referenced earlier, Mr. Roux explains "I always try to seek out the man in the torturer." Mr. Roux’s strategy with Duch was to get him to come to terms with the reality of what he has done, to get him to a place where he was able to say something meaningful to the victims of the tragedies in Cambodia.
There was a technical hang-up, however. The concept of the plea is one of the major differences between criminal procedure under common law and procedure under the civil law system. In civil law jurisdictions, there is generally no concept of a plea of guilty. A confession by the defendant is treated like any other piece of evidence, and a full confession does not prevent a full trial from occurring or relieve the plaintiff(s) from its duty of presenting a case to the trial court.
And so, in an astounding, almost comical conclusion to Duch’s trial, his two defense counsels, one Cambodian –Kar Savuth –and one international –Mr. Roux –both entered different pleas for the Defendant. Kar Savuth asked for an acquittal, perhaps because he was fearful of government retaliation against himself, but also in part due to the technicality of apparently having to work within the civil law system. To Mr. Roux, the cathartic moment of Duch admitting to his guilt, for Duch himself, for the victims, and for Cambodia, was what he was working for the entire trial. Kar Savuth’s request for acquittal raised doubts about his admissions of responsibility and his pleas for forgiveness. Yet Mr. Roux also blamed the Prosecution’s theory and method during the entire trial for the shocking and tragic confusion:
"So it is true that before this Court we have a civil law system. The guilty plea does not exist as such, but I should like to know what could have prevented any attempts to promote such a plea because it is stated in our Internal Rules that what is not provided for in national law can be sourced from international law.
So what was the obstacle? Well, the obstacle was a missed opportunity on the part of the Office of the Co-Prosecutors which missed its date with history; I stated it here. It led to frustrations as expressed in public opinion amongst the victims who were told incessantly, he is not telling all. This was the approach that was used even as late as yesterday in this courtroom. They said he is not saying everything. What he is saying will aid reconciliation but little. This is what I heard. What a waste. When you have an accused who from the very outset, from the very first day, told the Investigating Judges, "I am guilty. I am responsible for all the crimes" -- but no.
The prosecutor decided to submit a conventional, traditional argument whose underlying philosophy is as follows. This man is a monster, even though they said "I am not saying this man is a monster". In fact, the attempt was made to portray him as such. And they said "Lock him up for 40 years and society will be the better for it", but when will the prosecution admit that these are words that have been heard before. These are clichés and that we must go further, we must try to understand the mechanisms that lead a man, who is a decent man by all accounts, becomes a torturer.
Mr. Prosecutor that is what I would have liked to hear you say because the same thing was said in Nuremberg. They said, "These people are monsters, we're going to condemn them to death and this will set an example". But after Nuremberg there was Cambodia, wasn't there? And then there was Rwanda. So what is the example that you wish to show? What use is it in your conventional arguments? You do not deal with the problems. Well, we shall deal with them. We of the defence shall deal with the problems."
In the film, Mr. Roux appears quite crushed that this did not happen as fluidly as he had wished. However, there were many other incredible implications in Mr. Roux’s closing argument. Mr. Roux appealed to the humanity that runs through all of us, and the implications each of us has in the atrocities like what happened in Cambodia, what we all have done to create a world where a man could be forced to chose between obeying his superiors and committing such atrocious acts, or being killed himself, and endangering the lives of his family and loved ones. His words are some of the most inspiring I have ever heard or read. I would encourage anyone to read them, but I have selected some of what I consider the most powerful to reproduce here.
Mr. Roux based his theory of defense not on the crimes that Duch had committed at S-21, but on the crime of obedience.
"The crime that Duch committed and is according to me, and above all, a crime of obedience. Mr. Prosecutor, we said that we did not wish our client to be the scapegoat. I would like it to be clearly understood what is meant when I use the expression "scapegoat". As you well know, scapegoats in societies, including societies of old, was loaded with all the evils, with all the suffering of a society. All of this was loaded onto the head of a goat. Amongst the Hebrews, the goat was sent into the desert so that the social group could be reformed because they would say, "This goat bears all our wrongdoings". That is the scapegoat.
As long as the prosecutor's submissions will focus on this man as a scapegoat, you will not advance by so much as a millimetre in the development of humanity.
"This will not happen again," they say. Well, let me tell you it will happen as long as we haven't brought up with lucidity the phenomena that lead a normal man to become one day an executioner…To find the source of evil that was implemented each and every single day in S-21, we didn't have to look any further than ourselves. This is terrifying, but this is far removed from the very easy explanation of identifying a scapegoat."
Mr. Roux weaved philosophy, religion, literature –all of the things that bring us together as humanity, through his closing argument. In his final lines to the court, Mr. Roux said this:
"Here is a story -- a story that is told by Cambodians, but a story that is universal. It is the story of a wise man. It could be the story of an old imam, an old rabbi, a philosopher, a priest or a pastor or -- in this country -- a Buddhist monk. He teaches his disciples and asks them, "How do we know that we are moving from night to day, from the shadows to the light?" So one disciple says, "When we begin to distinguish the colour of the mango leaves." Another one says, "When you begin to see the cardamoms in the distance." No. And yet another one says, "When you can recognize your brother in another's eyes."
Duch, all your victims were your brothers and sisters in humanity. You said that you had been cowardly and that you did not go to see them while they were in detention. In human eyes, you will never be absolved of these crimes and the eyes of those you did not wish to meet will remain on you forever. But what about us, Your Honours? Are we prepared to look Duch in the eye and see him for the fellow human that he is? And the final question; through your ruling will you bring back Duch into the fold of humanity?"
The Defense at the STL
Francois Roux is now the head of defense at the STL. Yet the task presented to him and the defense team is entirely different. The STL is quite a unique tribunal amongst the other tribunals. The main ones –the Yugoslavia tribunal, the Rwanda tribunal, and the Sierra Leone tribunal, all involved mass atrocities and the deaths of many innocent people. But the STL is more complicated. Lebanon is a deeply divided country –politically, ethnically, religiously, historically, the list can keep going. There are widespread fears the trial could open a new chapter of sectarian tensions. Many have spoken out against the tribunal, challenged the basis on which the tribunal was established, and doubted its credibility.
There are essentially two ways to create an international criminal tribunal. One is by request of the country, which results in a treaty-created tribunal. The other is by a UN Security Council Resolution, where the Security Council uses its Chapter VII powers to create a tribunal as a solution to a threat to the peace. The STL is the only tribunal to have been created by a weird morph of these two –which may smack of foul play and may have doomed success of the tribunal from the start.
On December 13, 2005, then Lebanese Prime Minister requested the UN to establish of a “tribunal of an international character” to try those responsible for the assassination of Rafik Hariri, former Prime Minister of Lebanon from 1992 to 1998 and again from 2000 until his resignation, 20 October 2004. The now five suspects are connected with the powerful Lebanese Shia political and militant movement Hezbollah.
One week later, the Security Council passed Resolution 1664 urging the Secretary-General to negotiate an agreement with the Lebanese government “aimed at establishing a tribunal of an international character.” As per the understanding, the U.N. would draft a proposal to establish the Tribunal and then present it to the Lebanese cabinet for approval. The Lebanese cabinet would then pass it on to Parliament for final approval.
The U.N. presented a draft statute of the Tribunal to the Lebanese government on November 10, 2006, at a time of heightened political tension in Lebanon. Already splintered by disagreement over parliamentary issues, such as Hezbollah's demands for a greater share of political power in the cabinet, the government became polarized over the Tribunal. On November 11, Hezbollah resigned from the cabinet, citing the failure of the power-sharing negotiations and the unexpected announcement by the pro-Hariri camp that a vote on the U.N. draft resolution would be held two days later. Yet, despite Hezbollah's contention that the absence of Shiite representation extinguished the government's constitutional legitimacy, the government moved forward with negotiations. Without the six Hezbollah members, the cabinet approved the U.N. draft for the Tribunal on November 12, 2006, by a two-thirds majority.
The government still needed Parliament approval, however, a feat that became increasingly difficult to achieve. Over the next few months, the situation in Lebanon continued to deteriorate. Hezbollah led protests against the government throughout December, bringing the government to a political deadlock. Creation of the Tribunal became the central issue in what was being called “Lebanon's worst political turmoil in decades.” Each side accused the other of using the Tribunal to achieve political goals. The pro-Hariri camp argued that Hezbollah and its allies had resigned in order to prevent the Tribunal from forming; Hezbollah, in turn, alleged that the pro-Hariri camp was using the Tribunal as a political tool to threaten “Washington's enemies” in Syria and Lebanon.Throughout January 2007, sporadic bursts of violence related to the deadlock threatened to plunge the country into civil war.
Amidst the crisis, the pro-Syrian Shiite Speaker of the House, allied with Hezbollah, refused to convene Parliament until the stalemate was resolved. Likewise, the Lebanese president, a long-time Syrian ally, refused to sign off on the draft. With no resolution in sight, in February 2007, the Prime Minster asked the U.N. to use its Chapter VII powers to circumvent the Lebanese Parliament and unilaterally impose the Tribunal, sparking outrage among the pro-Syrian factions. On May 30, 2007, the Security Council did just that: Resolution 1757 gave the government until June 10, 2007, to ratify the Agreement, at which point the Agreement would enter into force unilaterally. Not surprisingly, the Parliament did not ratify, making the Special Tribunal for Lebanon the first treaty-based tribunal in the history of the U.N. to be enforced by resolution under Chapter VII.
Defense counsel at the STL has already described the tribunal’s creation as “discriminatory.” “Have the Lebanese been divided into a first class that deserves a tribunal and a second or third or even fourth class that does not deserve for their killers to be referred to the judiciary?”
Methods of Defense
International criminal tribunals have been set up for a number of reasons –to bring justice to the victims, to aid in national reconciliation, to deter such crimes from ever happening again. The goal of the STL is comparatively unclear. It may bring justice to the victims, but will it do anything to help Lebanon in the long term? Will it deter future terrorist attacks? So far it has not, there have been many terrorist attacks in Lebanon since the attack on Rafik Hariri and his convoy. Another problem is that the defendants are being tried in abstentia. This means that another pillar of Mr. Roux’s defense strategy is missing –his ability to personally connect with the defendants and bridge the gap between them and the victims.
So how does the Defense at the STL orient itself? Can Francois Roux team appeal to such deep seated elements of being a human as he did in the Cambodia tribunal? Or will the STL’s defense strategy consequently look more like domestic defense currently does –focused on tactical and procedural matters with the goal of proving the defendants’ innocence? That is what it is looking like so far.
The Defense opened stating that the Prosecution did not have any real evidence that their clients plotted to kill Hariri, and that accusing Hezbollah of being behind it was “astounding.” “The indictment described a political, legitimate Lebanese party ... as a political and military organization, implying it is an illegal organization that does not enjoy legal protections in Lebanon. This is a transgression against the Lebanese state” and implies Hezbollah is responsible, Defense counsel stated. The Defense has also suggested the disturbing idea that its potential witnesses have been systematically assassinated.
The Prosecution’s case is largely made up of telecommunications data linking the accused to tracking Hariri leading up to the attack. The Defense is expected to argue that techniques relied upon by the prosecution to identify the location of the suspects is unreliable and therefore invalid in court. They also challenge that the Prosecution has yet to come up with a clear motive for the attack. The Defense is also challenging the evidence from the Prosecution that there was actually a Mistubishi Canter van that carried the bomb. There does not appear to be any CCTV footage of the Mitsubishi Canter van at the moment of the explosion, despite extensive surveillance in the area and the van’s proximity to the Monroe Hotel, which faced the scene of the attack. The Defense questioned why no CCTV footage or satellite images of the scene at the moment of explosion had survived. The van is one of the key components of the prosecution's narrative. The prosecution claims its telecommunications data allowed it to track a network of operatives involved in the van's purchase. One theory is that police investigators did not adequately look into the possibility that an underground explosion killed Hariri.
Another idea is to resuscitate the focus on Syria’s involvement and perhaps backing of the assassination. Hariri had increasingly been at odds with Syria's government, opposing the far-reaching Damascus influence in Lebanon. A UN investigation led by the former chief investigator, Detlev Mehlis, implicated top Syrian and Lebanese officials in the attack.
The Defense also indicated that they have evidence that Abu Adass, was in fact a member of Al-Qaeda who was aware of the plot to assassinate the former premier Abu Adass had appeared in a video aired shortly after the bombing, claiming responsibility on behalf of a group called “Nusra and Jihad in Greater Syria.” The prosecution alleges that the group is fictitious and that Abu Adass had nothing to do with the assassination. His DNA was not found at the crime scene.
With so much potential at the STL (it is the first international tribunal to deal with the crime of terrorism, which is not yet an international crime but is brought in under Lebanese law), I deeply hope that Mr. Roux has plans to connect this trial to our progression as humanity as he has in the past, which I find to be the ultimate goal of international criminal law. Perhaps this is the work of defense in little pieces throughout the world, be it domestic or international. Prosecution halts the continuance of crimes against people, defense turns the mirror on society and shows us that we all play a role in making the world a place where individuals can make such choices.
