Judge Howard Morrison QC

a Holding Redlich Distinguished Visiting Fellow

"Human Rights Challenges in Trying Grave Crimes"

Public lecture delivered 8 March 2007 at the Monash University Law Chambers

Research in California, where else, has indicated that something like 10% of you will remember what I say for 48 hours, another 20% will remember what I say for 24 hours and the other 70% of you are going to sit there immersed in your own erotic thoughts so it is a great comfort to me that whatever I say the majority of you are going to be enjoying yourselves. Selling human rights is a bit like raising money for animal charities. It is very easy to get money for koalas but not so the ‘save the scorpion campaign’, you can shake your tin on a street corner for a long time before you get two cents. Too often ‘human rights’ is translated in the mind of the public as being soft on ‘criminals’

A popular mindset is victims ‘yes’, perpetrators ‘no’, but of course we’re all in it together and I have a Darwinian approach to human rights, I firmly believe it’s part of our evolution, our mental and social evolution and what it comes down to in it’s most simplistic form is an equality of esteem for one another, both as individuals and societies. Within that equality of esteem you also have to look at the people who are on trial as well as the witnesses and the victims who are sometimes the same individuals and sometimes not. International courts and tribunals are by their nature dealing with very serious offences and with people who are alleged to have committed the most grievous of offences; getting sympathy up for a mass murderer or a genocidaire or a rapist or torturer is not easy. However, when we are concerned with ending immunity and impunity for people who allow or commit these offences and perpetrate these horrors, a transparently fair trial and due process is part of the human rights complex that we must be aware of and it’s something that we can lose sight of very easily. 

The predominance of anti-terrorist legislation is becoming an issue; and I’m really not quite sure that I’m ever happy using that term ‘terrorist’ because people who commit criminal acts of murder and damage to property for political purposes are by and large capable of being tried by most national domestic tribunals using ordinary criminal laws.  All developed legal systems have laws that are capable of trying those people nominated as ‘terrorists’. We have established fair trial procedures and we have proportionate punishments even for the most serious of offenders. That it is easy to go emotionally overboard for terrorist offences I can understand, but it is, in my view, almost always unnecessary. Why it happens is really not a matter of jurisprudence, it’s a matter of politics. You can advocate a war against terror relatively easily and when you do concentrate the popular mind to make war against terror you can start to erode vital safeguards such as detention before trial and burdens and standard of proof. Once you start eroding those on a national scale it is easy to erode them on an international scale and once they’ve gone it is all too difficult to get them back again.  So what of international courts and tribunals and the implication for human rights?

We start off almost inevitably with Nuremberg and Tokyo. Almost everybody recognises that they were a necessity at the end of the Second World War, some great catharsis was needed.  However Nuremburg and Tokyo suffered defects and they were subject to quite proper criticism both at the time and often since. In their favour it is plain that they broke new ground and created much needed dialogue amongst international jurists.  Conversely, there was no proper appellate procedure and the jurisprudence in particular as to retrospectivity was unsatisfactory, in addition there was the death penalty. However justifiable the criticisms and cries of ‘victors justice’ it was seen that both Tokyo and Nuremberg broke new ground and were very necessary foundations. It was probably the genesis both politically and internationally of the thrust towards the Geneva conventions and protocols and eventually the growth of human rights in terms of international bodies and statutes. The Universal Declarations, the European Court of Human Rights, the African, American and Asian courts of human rights can all trace a lineage back to the post WW2 concepts of culpability, and all this has generated an immense ground swell of understanding that these are rights which need to be recognised essential to us all.  By and large I think you could say now that it would be the most reactionary of banana republics that didn’t recognise that those were in fact in existence, whether they are accepted as necessary in every domestic context is another matter.  But they’re there in the collective consciousness and so when you get to look at it from the international legal stage you’ve already got those sub-strata of fundamental rights, that foundation of understanding.  

So how did we come to create the tribunals for Rwanda and for Yugoslavia ? In reality they were born out of failure.  The Yugoslav tribunal was born out of the failure of the United Nations to properly manage its involvement and discharge its duties in the former Yugoslavia. Take, for instance, Srebenica. You set up a safe haven, you encourage people to go to it and then you don’t protect them properly when they get there. In Rwanda the UNAMIR forces on the ground knew there was a ground swell against the Tutsis by the Hutu militia, the interahamwe was arming, radio Mille Collines was pumping out propaganda, obviously something awful was going to happen. General Romeo Dallaire, who was the French Canadian general on the ground, pleaded with the United Nations for 5,000 extra troops.  He didn’t get them and he didn’t get them because the man to whom the cable was sent sat on the cable for two weeks because he knew what a political hot potato it was. The Americans who had just suffered the humiliations in Mogadishu were not going to be keen to be involved.  Well in that two weeks the plane of General Habyarimana was shot down over Kigali and the genocide exploded. Within three months, although it is difficult to be exact, something like 800,000 to 900,000 people were butchered, many by machetes at roadblocks or burnt alive.

It is difficult to imagine a grosser breach by the United Nations in exercising it’s chapter 7 mandate. So what happened? It wasn’t of course the General Assembly, but it was the Security Council of the United Nations, not without some difficulty, who set up the tribunals. They both have their own statute, they both apply principles of customary international law and they had their seats for the Yugoslav Tribunal in the Hague and for the Rwanda Tribunal in Arusha in Tanzania. These were arguably courts of conscience, some more cynical say retribution.

The Tribunals are hybrid structures. In the first place there is a tripartite structure in each. There is the office of the prosecutor, the registry that deals with all the administration, the chambers which is basically the courts and judges. That is it. You immediately spot the absence of the defence as part of the organic structure. The defence units were really an add on in both cases, not a very happy add on at that. In the beginning there was great inequality of arms, great inequality of budget and facilities. When I first went off to The Hague in 1997, and I really don’t joke, you went to speak to people and you have your little identity card which was the only identity card that had your job on it, it had DEFENCE written across it in very large letters, people would virtually hold up a crucifix as you came near, you would go into a meeting and everybody would be wearing strings of garlic on them. Defence counsel were openly regarded as people to be avoided. In the early days we weren’t even allowed to use the library if you were a defence counsel. Why not? Well, perhaps in case we researched something that might lead to an acquittal.

The mandates, the wording in the founding documents of the ICTY and the ICTR are thus, the Tribunals are to ‘prosecute those responsible for serious violations of international humanitarian law.’  Not ‘courts to try people accused of serious violations’ and it is actually worse because if you go back in the UN documents you will see that originally the founding doctrine was to say tribunals “to convict people” accused of serious violations. That prosecutorial ethos was the basis and foundations of the tribunals. Not a fatal flaw if once they’d been setup, that ethos had been watered down but in reality it wasn’t, and for the first few years it was very difficult to practise. There was a non collegiate atmosphere between the prosecution and the defence, there was non disclosure of important material and as a defence counsel you had no way of knowing that it hadn’t been disclosed. The prosecution had access to NATO documents, to spy satellite information, to the documentation of the intelligence services of NATO and Security Council countries; we had nothing.  In one case I wrote to NATO to ask them for some information, not only didn’t they give it, they didn’t even respond to the letter. We were very much fighting a rear guard action. Things improved, and, happily, they have improved dramatically due to enormous efforts by concerned individuals, but it was a very necessary change because the rights of the accused to a fair trial and to due process was seriously contaminated in the early days.

The fact that you have such a mixture of styles does not help. The tribunals have an adversarial system but no jury, they have judges with civil and common law backgrounds, prosecutors and defending counsel from civil and common law backgrounds, and everybody is trying to use their own system, and nobody can understand all the nuances of the other systems. Therefore you get the judges from civil systems who really don’t understand cross examination and frankly don’t like it very much, and you get the judges from the common law background who are completely none interventionists because that is the way we are in the Commonwealth system, we let the counsel get on with it and that again took a long time for a commonality to develop for those two quite radical and opposing views of judicial philosophy to come together and the prosecutors and the defence had the same battles to fight.

I went to the Tribunals knowing really nothing of what there was of international procedure. In a sense you couldn’t blame people for not knowing because it didn’t really exist.   You could train people in international customary law if they bothered to go along to the academics and learn, but there was no practical way you could get experience without doing it in the court and that’s what we did day in day out until we eventually reached some common level.  In the meantime the defendants were going through the difficulties that that engendered and there were some very poor consequences. The case of Barayagwiza in the Rwanda tribunal is one in point. He had been arrested and kept in custody for months and months without being charged. He was eventually sent to Arusha, again kept in custody for months still without being charged or even questioned. His lawyers put in a writ of habeas corpus, the court didn’t even bother to consider it. It was simply never determined as there was no procedure to cope with such an approach. Eventually when the matters did come to a head, and it did get in front of Judge McDonald, she thought it was such an abusive process and unconscionable that she threw the case out with prejudice so the prosecutor wouldn’t be able to start again. 

I was in the detention centre in Arusha and saw Barayagwiza several times. A small man physically, but a monster if it was a true indictment. He was sitting with his ill-fitting suit, even more ill-fitting with his months in custody, with his little suitcase by the prison gates waiting to be released; he sat there day after day after day. He never was released because what happened is that the prosecutor Carla Del Ponte ‘found’ some new evidence. I won’t bore you with the details but it was I’m afraid a very very sad day for the quality of jurisprudence and judicial independence at the Tribunal. He was eventually tried and convicted and sentenced to life imprisonment and it may be that it was a true bill and some people may say ‘well what’s wrong with that?’, What is wrong with that is that it started off as a complete and utter denial of his rights, denial of due process and so it went on until a reason was fabricated [in many observers eyes] to overturn Judge McDonald’s very proper and independent judgement. Better that you had lost that one case against him and maintained the dignity and the function of the court in my view, than finding some dishonest way around it just to make sure he was convicted and that the regime in Kigali is kept sweet.

I do not make political speeches or say anything that is vaguely political so if you hear something that is vaguely political, it is probably some defects in the acoustic system here so ignore it completely; but the reality is that there are huge vested interests. There are vested interests in people who wanted the Balkan cases determined in a certain way, there were vested interests in the people who wanted the cases of Rwanda to be sorted out in a certain way, the Great Lakes and the Congo are rich pickings. The Government in Kigali, the Rwandan capital, has a very very strong interest in seeing that everybody appearing before the Rwanda Tribunal is convicted and on the rare occasions when there has been an acquittal they have been enraged, rent-a-mob is instantly on the streets of Kigali, and co-operation with the tribunal is shut down. When they stop co-operating with the Tribunal, the Tribunal cannot function.  For the ICTR to function it depends very much on the Government in Kigali. I don’t know if you know much about the Rwandan genocide but, essentially, the majority population in Rwanda was Hutu and the minority population in term of numbers was Tutsi but there were a lots of Tutsi émigrés, in particular up in Uganda.  Resentment by the Hutu against the Tutsis was growing and it was ugly racist and violent. At the same time in the early 90’sd there was an invasion, [this is a very simple account of the story, it is much more complicated than this], but essentially there was an invasion of Rwanda from Uganda by the RPF. At the same time they were invading and heading south the genocide started to explode in the south of the country following the shooting down of Habyarimanas aircraft. During the course of the RPF invasion from the north at least 200,000 people were killed, some in atrocious circumstances. The mandate of the Rwanda Tribunal allows them to try both the Hutu and the Tutsis, in other words all parties.  But not one Tutsi has been indicted, not one Tutsi will ever be indicted because if a Tutsi is indicted the Kigali Government will simply refuse to co-operate and they’ve made that perfectly plain and the Tribunal, to the great embarrassment of the United Nations will shut down, and so those sort of very strong political influences are there, and again that has an impact upon fair trial process and obviously has an impact upon due process. Carla del Ponte made it plain that she was considering indicting some of the RPF soldiers for crimes against humanity. Before she could she was replaced as the Prosecutor for the ICTR although retaining responsibility for the ICTY.

A coincidence?  Not many think so.

The political dimension also has a wider impact and I’m not just talking about the defendants because it is necessary to consider the witnesses as well. Witnesses come under enormous pressure at both the ad hoc tribunals. In the case of Tadic, in the Yugoslav Tribunal, a colleague of mine was defending, Steven Kay.  One of the witnesses in the Tadic case said that he had been present in the concentration camp when Tadic had been raping and murdering people and he was only there because his father had been killed in the war and really had nothing else that he could do except go along and work as a prison camp guard, he was forced to brutalise the prisoners at gun point.  There was a lot in his testimony that raised suspicions, asked how high the fence was around the prison camp, he said it was two metres, well Steven Kay had been to the site about a week previously and saw that it was a fence less than a metre tall, it was an old one and he formed the view that this man may never even have been to the camp as he couldn’t describe the layout of the camp properly.  So they went off to Bosnia and while they were in that area, by chance somebody cycled past, Steven Kay looked at him and thought,  ‘My God that’s a mirror image of our witness in the case’, they followed this chap home on his bike and when they got back to the home they found the father, who had allegedly been killed, alive and well and the brother who was supposed to not exist was the lad on the bike.  They took those two to The Hague and the witness admitted first of all he’d lied comprehensively, never seen Tadic kill anybody, had never been to the camp but he had been paid to give his testimony. By sheer chance he was found out., Had that been the only witness against him, the man could be serving life in prison without any hope of salvation. What good does it do to the victim if their accounts are not being properly told, properly demonstrated and properly adjudicated because then their rights, their suffering is actually increased rather than decreased.

In the case I did in the Rwanda Tribunal, one of the witnesses was a mass murderer. He was a Hutu giving evidence against Hutu, he had been at a road block, admitted he’d personally taken part in the slaughter of many many Tutsis that came through the road block, a favourite method was to cut arms and legs off and allow people to die slowly, girls and women were routinely raped before being slaughtered. There were many children killed. They’d say to the children ‘do you like a long sleeve or a short sleeve or a t-shirt’ and the kid would say ‘I’ll have a t-shirt’ that’s when they cut their arms off at the shoulders If they said they wanted a short sleeve, they would cut their arms off at the elbow, if they said long sleeve, they’d just cut their hands off. They did that to about 300,000 to 400,000 people. He was one of those monsters..  When he had finished killing one day, and he was telling us quite unabashed, he said that there was a girl that came along about 16, there were 4 or 5 drunken interahamwe there so they stripped her and tried to rape her, but she put up such a struggle that none of them could, so to amuse themselves they poured a can of gasoline over her and burnt her alive.

I’m sitting there listening to this catalogue of horrors and I find out again by pure chance that this man had not been sentenced yet. He had been convicted by a court in Kigali for his offences, he had admitted them, he was hiding nothing, he hadn’t yet been sentenced, yet normally speaking, that would have attracted the death sentence in Kigali. Indeed much less would attract the death sentence, and I said to him “why haven’t you been sentenced yet?” and he was disarmingly honest, he said “look, they’re not going to sentence me until I finish giving my evidence”. Would you prefer the bang of the cell door or the bang of the Kalashnikov, how can you trust that sort of evidence, somebody who is under such enormous pressure to give testimony in such a particular way? It is the sort of example that stays with you because when you’re listening to these horrors and dealing with them and seeing the pictures day after day it lives with you and it stays with you and it does worry you.  The implications for an abuse of due process and human rights are obvious.

We built the court in Sierra Leone and the court in East Timor and they’re talking about a court in Cambodia to try the Pol Pot regime. . I don’t want to be completely dismissive of the latter, but why wasn’t it done 20 years ago?  We’ve got to live with that denial of human rights on a vast scale.. Now the International Criminal Court has been establised but is it is again an enormously ‘political’ court in terms of its genesis.  Tremendous battle were fought to get it set up, tremendous efforts made to get the own statute sorted out and ratified. I took a very small part in encouraging the recognition of the defence and putting defence perspective into part of the statute. It was very necessary because one could see how it hadn’t been done in the Yugoslav and Rwanda Tribunals.  The ICC has been in existence for four years, it has cost the best part of $500M and does anybody know how many cases it has tried? , None. Maybe we are on the verge of seeing the first case, let’s hope so, and let’s hope it is a success and it goes on to be a series of successes because there has to be an end to the immunity and impunity of people who commit these egregious offences; but it has to be done judicially and not politically.  The United States has set its face against the ICC. It has gone around the world creating bilateral treaties with small countries saying if you don’t send American citizens to the ICC we won’t sent your citizens, and it has persuaded a lot of countries to join in. Of course coupled with that, have been promises or even denials of aid.  America isn’t a signatory, China isn’t a signatory, India isn’t a signatory, so there you’ve probably got more half the world’s population. There is a huge struggle to move the ICC ahead.  It isn’t going to happen overnight and it’s going to take a lot of pressure.  It is going to take commitment from people interested in human rights to make sure it happens and to make sure that human rights are up there at the forefront of the agenda, and that the political considerations, which we’re never going to get rid of, that would be too much to ask, are secondary to the aim of uniting mankind behind a wall of common justice.

The statute of ICC ensures that if a country is able and willing to try it’s own war criminals the ICC has no jurisdiction in those circumstances. I’ve been privy to a lot of the information from the IHT, the Iraqi Higher Tribunal, and took part in training some of the judges in the early stages of their training and I’ve been allowed to see a lot of documentation and things that I otherwise wouldn’t have seen.  Any decent attempt at holding a public trial is better than no trial at all as long as it is a genuine trial and it is based upon evidence rather than prejudice. Some of you may remember President Ceausescu of Romania and his wife. What did they get ?, They got a 15 minute harangue, a quick trip around the back of the building with a couple of youths with sub-machine guns. You know what Human Rights Watch said about it? Nothing.  So you have to be very careful when organizations such as Human Rights Watch make detailed criticism of people who are trying to try cases such as the IHT in Baghdad. People are partial even in organizations with good intentions, so one has to be very careful to steer the middle line. In my view, and it is simply my view, the Saddam Hussein regime was monstrous. For 35 years it butchered hundreds of thousands of people, killed tens of thousands of people in endless wars with Iran using chemical weapons, butchered Kurds, used chemical weapons against children, it was a monstrous regime and, as I say, it is difficult to find any sympathy for the ‘save the scorpion’ campaign. Scorpions they may have been but they still needed a public trial and it had to be as fair a trial as could be devised in the circumstances. 

Now the Saddam Hussein trial was typified, like the Milosevic trial, by defendants and lawyers making political speeches and trying to turn the judicial proceedings into a political arena. I don’t know what the answer to that is but it is easier to run a trial if it doesn’t happen and it does not happen so readily if they is no media circus.. One of the little known facts of the case is that the longest period of time that Saddam Hussein ever interrupted the trial proceedings on any one day in the whole of the Dujayle trial was nine minutes and one day a TV network broadcast seven of those nine minutes and didn’t mention the other five and a half hours of testimony that occurred that day.  Now of course, five and a half hours of witnesses telling about brutal torture may be good news in some ways, it’s not very dramatic but seven minutes of Saddam Hussein calling the Judge a whoremonger and jumping up and down and generally being obstructive is great television. It is not however balanced justice and so you have to be very careful when you watch the television reportage of these trials to understand that you are not seeing all what has happened.  You are being shown what somebody wants you to see and that was a valuable lesson that I had to learn.  Milosevic did a great job of showboating. Barzan, Saddam’s brother in law, made it an art form. He was a particularly brutal individual. His speciality was torturing women personally. A horrid man, but he deserved a fair trial. He deserved to be in a court where evidence was heard, where he was sentenced in accordance with what he did. By and large the Iraqi population couldn’t understand why Saddam Hussein was having a trial at all. They thought the better idea was to take him to the cellars of the Ministry of the Interior and devise an interesting way of killing him. Mnay were absolutely outraged that he was having a trial. The Sunnis were equally outraged that he was having a trial and that was because he didn’t deserve a trial at all because he wasn’t guilty. This enormous polarity of feeling and emotion makes it hard to find a middle ground, and as lawyers and as human rights activists that’s our job, to find the middle ground and to make it work. There was and is no international court or tribunal with the jurisdiction to try Saddam. It was the IHT in Iraq or shades of Romania. Which do you choose? I’m not a revolutionary, far from it, but I do believe in throwing rocks in the pond and when you see a pond of complacency or a pond of intrigue it never does any harm to lob a rock in every now and again enough to oxygenate the water, you never know where the ripples are going to spread, you might actually do some good, chase some of the weed off the top and that’s really what I encourage people to do, encourage students and try and encourage other people who are involved. Do not be complacent. Work to make some useful ripples.

There are new challenges ahead. The terrorism legislation that’s coming out in many countries is going to challenge the presumption of innocence, it is going to increase pre-trial or even pre-charge detention it is going to erode rights and we’ve all got to be particularly aware of that. 

It comes in a variety of forms, there is great talk in England at the moment about easing traffic congestion by fitting your car with a GPS so that somebody can monitor how many miles you have driven, on which roads you have driven, calculate your road usage and then send you a monthly bill. That’s not a bad idea except it means this, somebody knows where you are, where you are going and maybe who you’ve been to see, what time you went home, what speed you were travelling at. Dangerous stuff..  What looks on the surface like a good idea has hidden implications.

It’s unhappily very easy to subvert rights and very dangerous to do so under the cloak of claimed legal process, moving the goal posts has never been a very good way of winning a football match. International courts and courts trying people accused of international crimes have got to be the standard bearers. If we lose confidence in the big things, we’ll lose confidence in the small things. It was Balzac who said ‘law’s are like spiders webs, they catch the small flies but the big flies go free’.  That’s got to stop and big flies have got to be caught but they’ve got to be caught and tried in a way that we’re justifiably proud of and not in a way that we come to regret. We’ve got to apply exactly the same considerations to a 20-year-old Islamic boy charged with terrorism as with a 55-year-old accountant charged with fraud. It’s law. It’s human rights. It’s due process. That’s what we’ve got to do keep in mind to maintain the advances we have made and there must be a struggle against any movement away from that.

Now I started this address with my rather simplistic universal definition of human rights, a commitment to the equality of esteem.

Well if nothing more, then certainly nothing less.  Thank you.