#185      24 min 43 sec
Defending the indefensible: War criminals and the right to a fair trial

International criminal law expert Dr Kevin Heller discusses the role of the International Criminal Court (ICC) and argues why even the worst of war criminals are entitled to the best defense. With host Jacky Angus.

"What command responsibility does is it allows you to hold a military commander responsible for crimes committed by his subordinates." -- Dr Kevin Heller




           



Dr Kevin Heller
Dr Kevin Heller

Kevin Jon Heller is currently a Senior Lecturer at Melbourne Law School, where he teaches international criminal law and criminal law.  He holds a JD with distinction from Stanford Law School, an MA with honours in literature from Duke University, and an MA and BA, both with honours, in sociology from the New School for Social Research.  He received his PhD in law from Leiden University in June 2011.

Kevin’s academic writing has appeared in a variety of journals, including the European Journal of International Law, the American Journal of International Law, the Journal of International Criminal Justice, the Harvard International Law Journal, the Michigan Law Review, the Leiden Journal of International Law, the Journal of Criminal Law & Criminology, Criminal Law Forum, and the Georgetown International Environmental Law Review.  His book The Nuremberg Military Tribunals and the Origins of International Criminal Law was published by Oxford University Press in June 2011, and Stanford University Press published his edited book (with Markus Dubber) The Handbook of Comparative Criminal Law in February 2011. He is a permanent member of the international-law blog Opinio Juris.

On the practical side, Kevin has been involved in the International Criminal Court’s negotiations over the crime of aggression, served as Human Rights Watch’s external legal advisor on the trial of Saddam Hussein (whose lawyers cited his academic work in their appeals), and consulted with a number of defendants at the ICTY and ICTR.  He served from December 2008 until February 2011 as one of Radovan Karadzic's formally-appointed legal associates.

The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011)

Other publications

Credits

Host: Jacky Angus
Producers: Kelvin Param, Eric van Bemmel
Audio Engineers: Kelvin Param and Gavin Nebauer
Voiceover: Nerissa Hannink
Series Creators: Eric van Bemmel and Kelvin Param

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VOICEOVER 
Welcome to Up Close, the research talk show from the University of Melbourne, Australia. 


JACKY ANGUS 
I'm Jacky Angus.  Thanks for joining us.  Since the Rome Statute in 1998 and the founding of the permanent International Criminal Court in 2002, various national tribunals gradually began to address the atrocities perpetuated by some of their citizens.  As a result, trials have been held in relation to war crimes in places like Yugoslavia, Rwanda, Sierra Leone and, more recently, in Cambodia.In today's episode of Up Close we consider the complexities associated with this pursuit of justice at the international level.  With me in the studio is Dr Kevin Heller, Senior Lecturer in International Criminal Law at the Melbourne Law School of the University of Melbourne, Australia.  Among his various publications in criminal law and related areas, one book published in 2011 received particular acclaim.  This is Kevin Heller's magisterial work, Nuremberg Military Tribunals and the Origins of International Criminal Law.  In it, Heller provides the first comprehensive overview of all 12 of the Nuremberg Military Tribunals held in the wake of World War II.  By analysing the underlying jurisprudence to emerge in the trials, Dr Heller was able to assess the contribution each has made to the development of international criminal law.Welcome to Up Close, Kevin.

KEVIN HELLER 
Thanks, Jacky. 

JACKY ANGUS 
I'd like to start by clarifying the difference between a military tribunal and the International Criminal Court, or the ICC.

KEVIN HELLER 
The primary difference between the two is that the International Criminal Court is an international tribunal, it enforces international criminal law on behalf of the entire international community whereas a military tribunal is traditionally a national court.  It's a military court established by a particular country to try individuals who have violated the laws of war.  So one is international and one is purely domestic.

JACKY ANGUS 
So the jurisdiction of each is quite distinct but presumably the international court has got jurisdiction, what, in all the domestic arenas where someone's been indicted?  Would that be right?

KEVIN HELLER 
No, I mean each tribunal, international tribunal has its own particular jurisdiction so there will be overlap.  There will be individual war crimes in particular that could be prosecuted by a state in their own military tribunals or it could be prosecuted by the international criminal courts or another international tribunal, but you have to look at each individual crime and where it's committed and what courts might conceivably have jurisdiction over it.

JACKY ANGUS 
What happens with nations that haven't ratified the Rome Statute?

KEVIN HELLER 
That's a very complicated question.  The simple answer is that because the International Criminal Court is created by treaty, unless a state has ratified the treaty the Court does not have jurisdiction over crimes committed on its territory or by its nationals, but there is a very important qualification, or two important qualifications to that.  If a national of a state that has not ratified the Rome Statute of the International Criminal Court, if that national commits and international crime on the territory of a state that has ratified the Rome Statute, then the Court has jurisdiction.So it isn't accurate to say, as many do, that the ICC has no jurisdiction over the national of any state that hasn't ratified the Rome Statute.  That's too simple because if they commit a crime on the territory of a member of the ICC, it has jurisdiction.  The second exception is the very important one which is the Security Council.

JACKY ANGUS 
Yes.

KEVIN HELLER 
The Security Council has the right to refer any national of any state in the world to the International Criminal Court.  So in theory the ICC does have kind of a universal or a global jurisdiction assuming that the Security Council steps up and actually refers the case to the Court.

JACKY ANGUS 
Of course the problem would be that even though the referral might be made, and in case of a rogue state that doesn't want to play ball, that's going to be pretty problematic, isn't it, in actual practice?

KEVIN HELLER 
Absolutely.  It's all very and good for the Security Council to pass a resolution, but as we've seen twice in terms of the Security Council referring, the Sudanese situation, the Dafuri situation to the Court and, more recently, referring the situation in Libya to the Court.  Now yes, the ICC now has jurisdiction over those situations, the ICC has indicted Omar al-Bashir, the President of the Sudan, they've indicted Gaddafi when he was still alive, his son, Saif Gaddafi.  Getting their hands on those suspects, however, is a very different question.  States are not always willing to comply with the requests of either the ICC or the Security Council.

JACKY ANGUS 
There's two that you've mentioned, from the perspective of 2012 it sounds like a slow process.  For example, if the ICC was finally established properly to function in 2012, and if we consider the horrors of World War II, the Nuremberg trials, the Tokyo Tribunals, why did it take so long to establish this international body to be effective?

KEVIN HELLER 
You mean between World War II and today?  Well, it's a very long and complicated question.  There is obviously a profound number of political considerations that go into creating a court that is at least designed, it doesn't yet but is designed to have a truly global jurisdiction.  You're asking states to give up some of their sovereignty, you're asking states to say you can prosecute our nationals, our government officials, our ordinary citizens if they commit crimes and states are not always willing to give up that sovereignty.  So particularly in the '50s and the '60s and the '70s and even in the '80s you had the Cold War going on.  You had the entire world divided into competing blocks.  In a situation in which there was such political polarisation, the idea that you would create an international court that could prosecute members of both sides was really just not politically possible.

JACKY ANGUS 
But I understand that even as late as 1993 you had the big powers, for example, China, Russia and India and even the US refusing to be part of the ICC or at least undermining it.  I mean you can understand perhaps the other ones that didn't want to play ball like Iraq, Libya, Qatar and the Yemen, but how do you explain the resistance from the US and even Russia?

KEVIN HELLER 
Well I'm not sure you can lump them all into the same category.  It's probably easiest to deal with the United States because they're kind of the highest profile non-signatory of the Rome Statute and the simple answer is that they don't want to give up any control over the prosecution of their own citizens.  They have feared, and I don't accept these criticisms but I can articulate them, their belief is that an independent international criminal court will simply launch politicised investigations of American officials, even those that haven't committed any crimes, simply to harass the United States because of anti-American bias in the international community at large.Is there concern about the rest of the world being biased against the United States valid?  Probably.  Is it likely that the ICC would pursue those kinds of politicised prosecutions?  I don't think that's a very compelling claim, but that certainly is what's at the heart of the United States' resistance to it.  They don't want to give up control to an international organisation.

JACKY ANGUS 
You're listening to Up Close coming to you from the University of Melbourne, Australia.  I'm Jacky Angus and I'm talking to Dr Kevin Heller, international law expert, about developments in international criminal law.Kevin, can you tell me, what's the difference between the International Court of Justice and the International Criminal Court?

KEVIN HELLER 
That's an excellent question and it's a very important distinction to keep in mind.  The International Court of Justice is actually affiliated with the United Nations and it is a court that hears only disputes between states.  One state brings a claim against another state.  It's not a criminal court, it doesn't deal with the criminal responsibility of individuals and it can't deal with the criminal responsibility of individuals.  The International Criminal Court, although it does have ties to the UN, is completely independent of it.  It is a treaty based court and it only hears cases that deal with the criminal responsibility of individuals for war crimes, crimes against humanity, acts of genocide and, a few years in the future, acts of aggression.So one is a court about states and the other one is a court about individual criminal responsibility.  Both the ICJ and the ICC have their seat in The Hague.  The Netherlands is probably the best international citizen and they are willing to host almost any of the international tribunals, so really almost all of the international courts and tribunals that have been created since World War II have their seat in The Hague.

JACKY ANGUS 
Let's turn to the actual impact of the ICC since its inception as a court.  What sort of success has it had in bringing criminals to justice?  Why the delays?

KEVIN HELLER 
Well they have moved the ball down the field quite a bit.  They have completed their first trial of Thomas Lubanga Dyilo who was a Congolese warlord.  There have been other individuals detained who are awaiting trial in the UN detention centre in The Hague.  You have other trials going on to other Congolese warlords.  So they are kind of ramping up the operations.Now, have they been too slow?  It's debatable.  If you look at something like the International Criminal Tribunal for the former Yugoslavia which was created by the Security Council in 1993, they didn't really get their first case completed for almost five years.  That was a court that was just dealing with one set of atrocities.  It was just limited to the states in the former Yugoslavia.  So a six or seven year ramping up period for the International Criminal Court doesn't seem all that slow to me.  This is a court that again has jurisdiction right now over 120 different countries.  It is a very different project to build an international criminal court than a court that is just directed toward one particular set of atrocities.So I think all things considered, they've done pretty well.  I'm critical of many things that the ICC has done, but I'm not particularly persuaded by the it's incredibly slow criticism.

JACKY ANGUS 
Okay, can you give us some idea of what it is they have to do in terms of getting evidence?  It must be very difficult to actually gather evidence.

KEVIN HELLER 
That's an understatement.  This is the biggest problem that the International Criminal Court faces.  Again, they have in theory the Security Council's kind of punitive measures.  The Security Council, if a state doesn't cooperate with them, they can impose sanctions, they can order the state to cooperate, but the Security Council's a very political body.The problem with the International Criminal Court is it doesn't have its own army, it doesn't have its own police force, it is completely dependent upon states, those who have ratified the State and those who haven't, to cooperate with it and some states are good international citizens and will happily execute search warrants and detain suspects and turn them over to the Court and others won't, particularly those that have their own government officials under indictment.The Kenyan Government is not particularly keen on cooperating with the ICC.  The Sudanese Government is even less willing to cooperate with the ICC. And it's true, the ICC struggles to do anything about that situation.

JACKY ANGUS 
There does seem to be a substantial number of indictments against African states and citizens.  Would that be right?

KEVIN HELLER 
That would be an understatement.  In fact, all of the indictments that have been issued by the Court, to date, involve Africa.

JACKY ANGUS 
I suppose that's a matter of governance in general, isn't it, in Africa, being weak and unstable situations where there are a lot of atrocities?  Would that be right?

KEVIN HELLER 
I think that's actually a very good explanation.  What you tend to hear from ICC critics, what you tend to hear from African leaders themselves is that the ICC is some neo colonial, neo imperialist institution that's racist and biased against Africans and I think that that is a really, really problematic criticism.  I think it is very problematic that the ICC has focused exclusively on Africa, and I've written quite a bit about that, but to say that it's the product of neo colonialism or racism, there's just no evidence for that.  I mean 33 African countries have ratified the Rome Statute, a higher percentage of African states have ratified the Rome Statute than any continent in the world.  You have the newly elected prosecutor elect of the Court, Fatou Bensouda, who's a woman from the Gambia.  If you look at the judges of the ICC, of the 18 sitting judges right now I think four of them are from traditional kind of western imperialist powers.  Most of them are from the global south, from Africa, from Asia, from Latin America.So the idea that it is just kind of a puppet of western powers I think is a very indefensible criticism of the Court.

JACKY ANGUS 
That's very interesting.  Considering your own research, Kevin, which is into the Nuremberg Tribunals, how has that thrown light on the development of international criminal law?  Is there now, for example, a recognised law of evidence that defines a war crimes or crimes against humanity?  How does the ICC decide what genocide is, for example?

KEVIN HELLER 
Well there has obviously been kind of a slow evolution of what we would call substantive international criminal law, the definitions of crimes, what we call the modes of participation in a crime, aiding and abetting, command responsibility during criminal enterprise, defences to international crimes, but one of the great advances of the Rome Statute of the International Criminal Court is that it is the most comprehensive codification of international criminal law to date.  Because it was a treaty, they had to draft treaty provisions that said this is a war crime, this is a crime against humanity, this is the definition of command responsibility, this is the defence of necessity.All of that is contained in the Rome Statute and so it is a tremendous advance over the 60 some odd years prior because if you think about the World War II era tribunals, the International Military Tribunal at Nuremberg which was the four power trial or the ones that I've written about, the Nuremberg Military Tribunals, they were kind of making international criminal law up as they went along.Now war crimes had been around for a long time, states traditionally prosecuted violations of the laws of war, we had early versions of the Geneva Conventions so we had some idea of what a war crime was.  But really crimes against humanity, the crime of aggression, the international crime of genocide, these were pretty much made up from scratch by the post World War II tribunals and then, over time, they were put on a more of a codified statutory footing with the Genocide Convention, with the 1949 Geneva Conventions, but it really wasn't until the Rome Statute that we could say here, here is an overview of everything that international criminal law is.  That's why it's a real major advance for the field.

JACKY ANGUS 
So how do you think your book has actually contributed?

KEVIN HELLER 
I think it has filled a very important gap in the literature.  Now it's not that these 12 American trials held between 1946 and 1949 were unknown, quite the contrary.  They've been cited again and again by modern day tribunals like the Yugoslav Tribunal, the Rwanda Tribunal, the ICC, but no one had really systematically studied the jurisprudence and what I noticed was that not only scholars but even courts got the law wrong because there was nowhere for them to look to get a coherent understanding of how all of the tribunals handled a particular issue.If you line up the judgments in the 12 trials, you're talking, I think, almost 4000 pages of judgments.  You can't master all 12 trials just as a tribunal trying to answer a particular legal question.  So what I tried to do was actually say okay, I'm going to give you a coherent synthetic analytic overview of all of the legal issues that have been dealt with by these tribunals and so if you need to answer a question about them, instead of reading 12 judgments thousands of pages long, you can read a few pages in my book and say oh, so that's how they defined that particular war crime, that's how they understood what we would call joint criminal enterprise.It's not a reference guide, but it is, hopefully, an academic work that provides a valuable reference for modern day courts and tribunals to understand very complicated legal decisions by courts that are 63 years old.

JACKY ANGUS 
Well it's certainly a very substantial contribution, all 500 pages of it.

KEVIN HELLER 
I hope so.

JACKY ANGUS 
You're listening to Up Close coming to you from the University of Melbourne, Australia.  I'm Jacky Angus and I'm talking to Dr Kevin Heller, international law expert, about developments in international criminal law.You talk about recent developments and obviously post World War II, in today's world, in 2012 the whole issue of attributing responsibility to a government and the denial of responsibility by that government or by a senior person in that government, that makes it pretty complex.  Can you tell us a bit more about what you mean by command responsibility?

KEVIN HELLER 
Well, those are two different questions.  Command responsibility is one of the most important ways you can hold an individual accountable for an international crime.  So if you imagine a war crime in which a group of soldiers lines up a bunch of civilians and executes them, now it's not very difficult to hold those individual soldiers responsible for executing the civilians, but how do you hold their military commander accountable, someone who didn't necessarily tell them go kill civilians, didn't order them to do it, but created such an atmosphere of illegality and laxness about the laws of war that it's predictable that one of his soldiers or a group of his soldiers would go out and do it.What command responsibility does is it allows you to hold a military commander responsible for crimes committed by his subordinates.  Now there are limits on that.  The commander has to know that his soldiers are going to commit these crimes and then not do anything to stop them, or he has to find out that they've been committed and not punished them for violating the laws of war, but that's the way you hold them responsible and that's the way you reach higher ups in the military hierarchy who are not the ones pulling the triggers on the ground.

JACKY ANGUS 
That's right, the leadership, the idea of impunity of the leader who didn't know what the commander was doing further down.  That presumes a different type of responsibility attribution, would that be right, in law?

KEVIN HELLER 
Again it's an incredibly complicated question, but command responsibility can reach all the way up to the commander-in-chief.  Anyone who is in the military hierarchy who knows or, under certain circumstances, has reason to know that his or her subordinates are committing crimes and fails to stop them can be held responsible for those crimes themselves.  So it can be the immediate supervisor, the superior or it can be the commander-in-chief of the military.

JACKY ANGUS 
Finally, Kevin, I understand that you've had experience as an attorney in this area yourself, as legal advisor in the trials of Saddam Hussein and Radovan Karadvic which was 2008, I think, to 2011.  Can you tell us a bit about that, and I suppose what interests me is that, don't you find it difficult to defend someone whose behaviour you may personally regard as simply indefensible?

KEVIN HELLER 
Okay, well the first thing I should say is that with Saddam Hussein, I was the legal advisor at the Human Rights Watch on that trial, so I was simply keeping track of the trial and identifying the many problems with that trial.  With Karadzic, yes, I was actually, I won't say one of his lawyers because he's representing himself at the International Criminal Court for the former Yugoslavia, but I was one of his formally appointed legal associates.  What that meant was I was one of his two primary legal advisors helping him craft his defence in the case.Do I find it difficult to defend someone who might have done indefensible things?  I suppose the easy answer is no.  I don't think most defence attorneys have that problem.  It's a decision you make pretty early on in your legal career that are you the kind of person who can defend someone who might be guilty of horrible crimes or not.

JACKY ANGUS 
But you passionately believe that everyone's entitled to defence and Hitler, for example, was entitled to defence.  Is that correct?

KEVIN HELLER 
Well, had Hitler lived, I absolutely think he would have been entitled to a defence and one of the great triumphs of the Nuremberg military tribunals is that they tried some of the highest ranking Nazis in the German Government for the most heinous crimes that human beings had ever committed, yet they still managed to provide them with lawyers, they provided them with legitimate rules of procedure, they provided them with fair trials.  The fact that you could convict Nazis after a fair trial to me is the triumph of the legal system.  There was plenty of talk among Churchill, kind of foremost among them, who said we should just round up the highest ranking Nazis and put bullets in the back of their skull, let's not even try them.It really was, ironically enough, Stalin and Roosevelt who talked Churchill out of that plan and said no, we have to be better than the Nazis, we have to provide the kind of trials to them that they didn't provide to their own victims.  So yes, I don't really care what somebody has done, whether they're guilty or not, no matter how awful they are they deserve a fair trial and if I can play a role in helping ensure that a trial is fair, then I feel like I've done my job, regardless of what I might think of my client.

JACKY ANGUS 
Okay, but are there any limits to anyone that you would defend?  Would you have defended Hitler if you'd been in that position?

KEVIN HELLER 
No, I would not have defended Hitler, but not in any way because I think that he didn't deserve a fair trial.  I wish he had lived World War II, I wish he had faced justice at the hands of the Allies, certainly ending up in a ditch covered with petrol on fire is not the best ending for someone, so there was that kind of justice, but I have only one limit and that's the limit of a conflict of interest.  All defence attorneys have some limits and I'm a Jew.  My family is from Eastern Europe, from Russia or, depending on the decade, Russia or Poland.  I couldn't have defended one of the Nazis zealously, but that certainly doesn't mean that I wouldn't have been deeply grateful for a non-Jewish defence attorney who was willing to defend them.So the only client I would not defend is someone who I had a personal interest in seeing convicted.  So I can defend Radovan Karadzic because I don't have any ties to the Yugoslav conflict.

JACKY ANGUS 
Thank you very much for coming on Up Close, Dr Heller.

KEVIN HELLER 
Thank you.

JACKY ANGUS 
That was Dr Kevin Heller from the Melbourne Law School at the University of Melbourne, Australia.  He was discussing developments in international criminal law.This episode was recorded on Thursday, 23 February 2012.  Relevant links to Dr Heller's publications, a full transcript and more information about this episode can all be found at our website at upclose.unimelb.edu.au.  Up Close is a production of the University of Melbourne, Australia.  Our producers were Kelvin Param and Eric Van Bemmel.  Audio engineering by Gavin Nebauer.  Up Close is created by Eric Van Bemmel and Kelvin Param.  I'm Jacky Angus.  Until next time, good bye.

VOICEOVER
You've been listening to Up Close.  We're also on Twitter and Facebook.  For more info visit upclose.unimelb.edu.au.  Copyright 2012, the University of Melbourne. 


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