International Criminal Courts: Their Virtues and Vices

So, I have realised that I have been making somewhat of a mockery of my blog’s title of late. I have resolved to rectify this egregious behaviour and thought I would make a start by writing about a fascinating debate that I attended at the weekend, at Ustinov College, Durham.

Entitled ‘International Criminal Courts: Their Virtues and Vices’, it was organised by four post-graduate students, in conjunction with Inner Temple, and placed us in the company of those who have truly served at the coal face of the international criminal justice system – the International Criminal Court.

Advancing the case for international courts was Iain Morley QC of 23 Essex Street Chambers, who acted as prosecuting counsel for the UN in the ad-hoc tribunals for the Rwandan genocide and Hariri assassinations. Advancing the case against was Steven Kay QC of Nine Bedford Row who, in amongst other notable cases, defended Tadic in the very first case of the ICTY. The debate was presided over by The Rt. Hon. Lord Justice Laws and his interesting jumper; a summary of the arguments (with a few observations of his own) was given by Professor Michael Bohlander.

Opening remarks were delivered by The Rt. Hon. Lord Justice Laws. Although he emphasised that he did not consider himself  by any means an expert in the field of international criminal law, he made a series of acute observations. He noted that issues of sovereignty were of paramount importance in such matters and that there was, quite often, constitutional difficulties in the administration of justice on the international stage. Similarly, there is always potential for tensions between proponents of differing legal systems, rules of evidence, procedures and so on, but given that compulsory criminal jurisdiction is not enforceable, it behoves all to proceed by consent and find a way around these problems.

Iain Morley QC began his case by stating that, although there were problems with international criminal courts, on balance he believed that the world was a better place for their existence. It was his view that international criminal law began properly not with the Nuremburg trials, but with the fall of the Berlin Wall. This event ushered in a new world order and brought about the cessation of geopolitical infighting, allowing true international criminal law to develop.

Mr Morley then turned to a criticism often levelled at the international criminal courts, that of their cost. It transpires that the permanent International Criminal Court costs somewhere in the region of five to eight million dollars per month to run. Yes, you read that right. Per month. The Tribunals for both Yugoslavia and Rwanda ran to a total of one and a half billion dollars a piece. (Mr Morley, you may have your work cut out here). It turns out though that this cost accounts for less than 1% of the annual cost of conflict in the world, and conceivably the existence of such courts might go some way to reducing the overall expenditure by reducing instances of war crimes and crimes against humanity. Ultimately, he said, money is not and should not be the issue. It is the efficiency and speed with which cases progress that should be held up to the light; cases can and usually do take years to complete. The Courts’ virtue lies in the fact that we have a system that can be improved, which is infinitely preferable to having no system at all. That said, cases are getting faster. Mr Morley attributes this to the ‘army’ of young lawyers and experienced judges toiling away at the Hague, developing both jurisprudence and a homogeneity of approach that is beginning to diminish the inefficiencies of previous years.

So, what is the point of an international trial? Mr Morley identified five critical points that he believed tip the scales in favour of international criminal courts, the first of which is empowerment. The development in victims’ minds of a sense of empowerment comes from seeing those who have wronged them being brought to justice. Often this is in circumstances where entire communities have suffered a lack of control over their existence for generations, and these trials can be part of the healing process. This consequently leads to the second point, an end to the idea of impunity. Accountability increases, as does the deterrent effect of international justice. The third point is the issue of record. History consists of many interpretations of events, from many different vantage points. In the records of the courts, future generations can benefit from a definitive script that tells both sides of the story and is evidence-based. Diversity is also a principle virtue of the international criminal courts. The Hague is full of all colours and creeds working together to achieve a just outcome and this is something to be valued and further encouraged. Mr Morley’s final point was that of homogeneity. At last, we have something approaching universality in how to conduct trials, born of a better understanding of different legal traditions and this is working to improve the conduct of trials in other countries. The younger generation that work in the courts have considerable influence in helping develop principles and are not tethered to archaic practices. Mr Morley held that, although he would not disagree with anything raised by Steven Kay QC, it was his belief that the virtues of the international criminal courts outweighed the vices.

In advancing the case against the international criminal courts, Mr Kay began by harking back to the origins of the court. Article 7 of the UN Charter included the intention to establish a court to restore and maintain peace. This was unprecedented as the United Nations has never before involved itself with courts, more matters of sanctions and the use of force. The UN established the International Court of Justice through the General Assembly; the International Criminal Court came through the Security Council, as they were sure that it would not pass if put to a General Assembly vote. Mr Kay referred to Cassesse, terming him a crusader, and noting that there was no chance of ‘dispassionate’ judgement of the legitimacy of the court from him.

Mr Kay touched briefly on his experiences defending Tadic at the ICTY. The case began on 8th May 1996 and  he saw it as a time of optimism, with justice on the horizon. He was very hopeful as to where it may lead in the future. Fifteen years later, he is disillusioned. Has there been less war? Less aerial bombardment? The alarm bells first rang for him in May 1999, on the lead up to the Kosovo War. He watched news reports in confusion as Clinton built up forces around Kosovo. There had been no resolution from the Security Council and NATO’s Charter only permitted self-defence in the event of an attack. Surely this must be illegal? At this point, Mr Kay quietly stated that 95% of people killed in war are now civilians; military installations are rarely targeted any longer.

His confusion turned to disbelief in the wake of some ‘ludicrous’ judgments from the International Criminal Courts against Kosovo and Serbia. Further still after the indictment was taken out against Milosovic, which Kay considered to be an overtly political act. He was dismayed that the issue of legality of the war had no consequence for the NATO side.

Mr Kay also drew on more recent examples of events that had disillusioned him further, during the Libyan conflict. He recalled a headline from a British tabloid that read “Troops taking Viagra to rape women”. On further investigation, he discovered that this was a quote attributed to Moreno-Ocampo,  the ICC prosecutor. The office of prosecutor is meant to be independent, not a tool for the Security Council.

A further cause for concern came in the form of Kenya and the definition of crimes against humanity. Mr Kay drew attention to Article 22 of the Rome Statute which states, ‘The definition of a crime shall be strictly construed and shall not be extended by analogy’. The International Criminal Court is not a world human rights court. Does it really serve international criminal justice?

Mr Kay considered the development of jurisprudence to be helpful, but took grave issue with the quality of judges that sit in the permanent court. Likening their appointment to horse-trading in New York he raised the Celebici case, where one of the judges gently slumbered his way through the admission of evidence, and pointed out that in some countries one did not require a law degree to sit on the bench. He also expressed concern about the number of youthful, inexperienced people working at The Hague. They draft long, lumbering judgments because they do not know which bits are important. Citations are frequently either wrong or missing altogether.

Mr Kay concluded by noting that divisions not only remain at the Court, but are overt. Resentment is building in Africa, as its countries are becoming bitter and disillusioned with the failure of the ICC to deal with significant legal conflicts that occur outside of the African continent.

Professor Bohlander spent two years at the International Criminal Court, and like Mr Kay, very quickly became disillusioned. He noted that the theory of international criminal law does not often reflect the practice and was struck by the number of people undertaking work there purely for CV enhancement. He had observed that states were treated very differently within the system, contrary to the principle of equality of sovereignty. Professor Bohlander further agreed that the Court was costly, but considered this to be less of a point if it offered value for money. He wasn’t sure if he was convinced of that argument.

He violently disagreed with Mr Morley that the number of young people, straight out of law school, working at the Court was a cause for celebration. He thought it nonsensical that they were launched into writing extremely important judgments. The notion of empowerment was also one that he took issue with, citing reliable sociological research that contradicted this argument. This is particularly relevant in cases where conspiracy to commit genocide attracts a lower tariff than a single murder would in the domestic courts. Professor Bohlander also observed that the primary function of the International Criminal Court was not the development of the international criminal law, rather to put people away. To claim otherwise is only to try to expedite the acceptance of international criminal law worldwide.

A poll was taken of the students present, both before and after the debate, to gauge how persuasive we found the arguments of each side. Movement could be counted in terms of individual percentage points, with Iain Morley QC edging slightly ahead by close of the debate. This was both enlightening and entertaining, and I thoroughly enjoyed it.

This debate was part of the Cafe Politique series of seminars and debates, at Ustinov College, Durham University.

Raising the bar on diversity – A response to Zoe Saunders

I read with interest Zoe Saunders‘ post Why the bar really is a meritocracy, a ‘retort’ to my observations in Access Denied.  It offered a barrister’s eye view of the pupillage process at St John’s Chambers, and indeed some insight into Ms. Saunders’ own route to the Bar. What it did not offer, however, was an effective rebuttal of the points I had originally made. This is why I feel compelled to reply.

The perception of the bar as an elitist profession is pervasive. Much of this is a legacy from times past, but still shadows remain and for good reason. While Ms. Saunders concentrated on the search for pupillage, my observations were broader in approach and considered too the barriers in place even before becoming a pupil. This included the up-front cost of the BPTC, running currently between £10,000 to £15,000, and the dearth of funding options available to all, let alone those in the position of supporting a family or paying a mortgage. The widespread withdrawal of career development loans has further compounded the issue. Ms. Saunders herself admits to having ‘got into enormous debt’ to do the bar course. It would appear that the option of getting into enormous debt to fund the BPTC is not one that is open to students in 2011 and beyond, whether or not they are taking a circuitous route. In a recent blog post, Professor Julian Webb identified the 25 – 39 year age group as that which accomplishes the most for the sector in terms of social mobility and diversity. If this demographic cannot access funding to complete the professional stage of training due to the financial and parental responsibilities that are common amongst the age group, then this surely is an aspect of accessibility worthy of scrutiny?

It has been suggested that the statistics do not support the ‘easy myths’ that I peddled in my previous piece. At first glance, that appears to be correct. On subsequent inspection of said statistics, however, it seems a little thin as an accusation. The Bar Council‘s report concerns itself only with ‘gender distribution’ and ‘ethnicity distribution’, an either/or approach that considers neither both occurring concurrently nor any of the alternative factors given to affect diversity and accessibility. Far more comprehensive is the information contained here, a University of Westminster research publication funded by the Legal Services Board. This looks beyond the obvious ethnic/gender splits within the profession and consider the combined effects of gender, education, funding, ethnicity, socio-economic class and parenthood on the aspirant student. As tempting as it is to reproduce pages of this document here, I shall instead content myself with a few salient extracts which serve to illustrate the main theme of the findings.

“…respondents spoke of the importance of ‘opening up’ the profession to talented individuals from less wealthy socio-economic  backgrounds… evidently the cost of training adversely affects aspiring lawyers from lower socio-economic and some BME (Black and Minority Ethnic) groups as well as mature students who must self-fund through university and training”.

“… motherhood appears to be taken as automatic evidence of reduced commitment in a way that fatherhood does not, with the result that women of child-bearing age are perceived as making a similar commitment only if they ‘choose’ not to have children and clearly demonstrate that choice”.

“The cost of tuition fees and living expenses was a recurring theme, and clearly had affected the career choices of at least some of our respondents… These financial difficulties were exacerbated by the need to dress up one’s CV to demonstrate dedication and maximise employability through unpaid experiences and costly extra-curricular activities”.

These accounts, expressed throughout the research paper by lawyers past and present, are indicative of recurring difficulties experienced by many in their journey to infiltrate the legal profession. Also charted is the disproportionately high number of women who chose to leave after qualification and the not-unrelated resistance of some chambers to flexible working. For those amongst you who enjoy number crunching, consider this – in 2007/08, 62% of pupil barristers were drawn from the top two socio-economic groups and 68% of pupil barristers attended a Russell Group university. In 2010, 82% of practising barristers were Oxbridge educated. A myth has no discernible basis in fact. This is no myth.

A further publication by the Legal Services Board, entitled ‘Barriers to the legal profession’, made the following observation:

“At each stage of the process of entry and progression, those from higher socio-economic backgrounds are at an advantage: attending a more academic school followed by a Russell Group university… These advantages are likely to account for the over-representation of those from private schools in the profession, leading to the profession being perceived as having an elitist culture”.

This report put the proportion of judges and barristers that had attended an independent school at 70% and 68% respectively.

In an experience that mirrors my own, Ms. Saunders referred to a less than helpful careers service reaction at her university.  I was told by one particularly unenlightened advisor that “students from this university don’t go to the Bar”, despite some very well-known students having done just that. Luckily, I too am perfectly capable of finding out what I needed to know without being ‘spoon-fed’. I have been a member of Inner Temple for a year and have attended several of their functions and events in London. My scholarship application has been submitted. Rather disingenuously, my observations have been casually dismissed by many who feel that I did not research my intended career before starting down this path. On the contrary, my views chart the discrepancy between my (extensive) research and the reality of accessibility to the Bar. It was this discrepancy which served as the source of my disquiet, not a lack of understanding as to the intellectual rigours of the profession, nor my ability to persuade.

A career at the bar is something that @ZASaunders clearly feels passionately about and to that end, we are aligned. I do believe that the Bar has meritocratic virtue, once you are there. That said, to deny that problems still exist is to be guilty of perpetuating the status quo. I criticise the profession because I wish to join it, but join an improved version of it. The landscape is changing, slowly, but much more needs to be done. To quote the illustrious Gerard McDermott QC,

The Bar is changing and it’s up to us as a profession to help… those aspiring to be barristers”.

Access Denied

Last year, I was mostly angry. Not the sort of American-take-a-sniper-rifle-to-the-clock-tower angry; I get the impression that you can only pull that one off once in a lifetime. No, this was like a creeping itch of rage, manifesting itself in a cynical outlook and a hefty dose of class-envy.

What caused it was an extended epiphany I had over the course of several months, and the rage was squarely directed at the Bar.

During the course of my life, I have clung to the notion that I, one day, would be a barrister. From the age of seven I thought of little else (if you ignore the brief teen flirtation with politics) and this notion buoyed me up through years of raising children and watching my peers spread their wings. When I finally arrived at university, I was the ripe old age of 29 years and terrified at the thought of the effective 18-year-old synapses firing around me. Over the course of a few weeks the fear subsided and I realised that, not only was I passionate about law, I was really quite good at this.

Through the first year it seemed like a whole new world was opening up to me and at the start of the second year I began my evil plan to get to the Bar. I joined an Inn, I attended conferences, got the grades at uni, I observed barristers in the Crown Court, I hobnobbed, attended functions laid on by my Inn. I spent half of my time in London, travelling down six hours overnight on the awful, but cheerfully cheap, Megabus.

I did all this because isn’t the Bar now a meritocracy? Is not pupillage now paid? The Inns hand out a fortune in scholarships every year, you know.  If you are good enough, you will succeed.

What slowly began to dawn on me was that to a lesser or greater degree, all the above are true. The Bar is a meritocracy, to a point. I’ve met several barristers from my Northern patch who started from roots as ‘lowly’ as mine and who have ascended to dizzying heights of greatness. It was a challenging path, but they made it. Pupillage is now paid, albeit for the most part at a minimal level. The Inns do cough up an average of a million pounds every year in scholarship payments.

All this notwithstanding, other truths revealed themselves to me over the course of last year. For a start, you get nowhere without work experience. You can do a mini pupillage, marshal judges and the like, but then doesn’t every law student do that? Well, you need to do something a little different then. Do a Masters course. Perhaps you could teach English in Asia, or volunteer for an NGO in Africa. Maybe you could do an amazing internship in London, even Europe? To stand out, you must be different from the get-go. You need to have shown your dedication and that manifests itself in months of unpaid work. Oh hang on…

I spy a problem. The student loans that my partner and I receive do not support two, but five people. I can’t afford to work without remuneration for months of the year, or pay the fees for postgraduate courses. Ok, well how about those paid internships at the big law firms? Cripes, there’s another issue. It’s paid, but the online application forms seize up at the merest hint of a mature student without A-Levels. If you haven’t got 320 UCAS points, the forms will not let you progress. Even without this, internships anywhere beyond an hour’s commute from home leave me with potentially insurmountable childcare issues.

The BPTC? Impossible without a scholarship from the Inn. Even then, a scholarship would probably only extend to a partial satisfaction of the fees. Where do I find the rest of the money for the fees? What do we live on?

The point that I am slowly meandering to, and indeed the source of my rage toward an entire profession, boils down to this. With a few notable exceptions, the Bar is trying to exist in the same self-contained air pocket that it did one hundred years ago. Some things have changed and on the face of it, the Inns have worked commendably hard to create a level playing field. As a profession however, the Bar has not adapted well. It lacks the hunger evident in the solicitors’ profession, the unrelenting pushing forward to evolve and devour everything in its path. By allowing itself to become squeezed, the Bar has accidentally created unsustainable levels of contest that can only allow unmarried, childless, parental-funded, internship-wielding super-students to compete. “Age is no barrier to the law”, I was once informed by a Senior Clerk. For the reasons I have given, I have to disagree.

What of the barristers that I mentioned at the start, reaching and succeeding at the Bar? Quite simply, they were men. At least one that I know had a comparable domestic situation to myself, a spouse and children. I guarantee that during the time that he was submitting applications and attending the eighty-two interviews he had before securing pupillage, it was his wife who carried responsibility for the home and everyone in it. I am no militant feminist, but I find it difficult to pinpoint anything that is designed to facilitate the career of an intelligent and capable woman who has chosen to have children first.

As I begin the final year of my degree the rage has ebbed away, to be replaced with weary resignation. Reality has kicked in and, armed with my epiphany, I am coming to terms with the fact that my path, for now, may lie in a different direction. The desire remains, and perhaps a few years of working in a different role may equip me with more of the experience I need to stand out from the crowd.

Please feel free to let me know what you think.