http://www.nationalpost.com/commentary/story.html?f=/stories/20020418/67
5076.html
NATIONAL POST, Thursday, April 18, 2002 LETTERS
International court on trial
At a time when war, terror and ethnic violence dominate the headlines,
it is
worth pointing to evidence that one day the international rule of law
may
prevail. The world is witnessing two events that may be on a par with
the
Nuremberg trials. The first is the trial of Slobodan Milosevic. The
second
is the creation of the permanent International Criminal Court (ICC) on
April
11 at the United Nations.
Both events confirm the emergence of an international criminal justice
system to deal with the worst cases of genocide, crimes against humanity
and
war crimes -- using courts rather than war to bring the perpetrators to
justice. It is fitting, and healthy, that both the Milosevic trial and
the
ICC are stirring up some heated controversy. Much the same thing
happened
with the Nuremberg trials in the late 1940s -- with some critics
demanding
"rough justice" for the Nazis and others complaining about show trials
and
"victors' justice."
We are defence attorneys -- the ones who ensure, to quote a fellow
attorney,
Mr. Edward Greenspan, that "thugs" receive a fair trial. We fight to
ensure
that alleged thugs have the right to a full and answering defence.
One of the architects of Nuremberg, U.S. Supreme Court Justice Robert
Jackson, stated our ideal of criminal justice succinctly in April 1945,
when
most people (including Winston Churchill) wanted summary execution of
the
Nazi leaders. He said:
"Courts try cases but cases also try courts ... You must put no man on
trial
before anything that is called a court ... under the forms of judicial
proceedings if you are not willing to see him freed if not proven guilty
...
."
Judges and prosecutors focus on trying the case. The role of the defence
is
not just to defend the accused but to ensure "the case tries the court."
This is precisely what Mr. Milosevic is doing by launching his frontal
attack on the political and moral legitimacy of the International
Criminal
Tribunal for the former Yugoslavia (ICTY). However much people disagree
with
his view, it is vital that he has the opportunity to challenge the court
and
present his story.
Make no mistake about it, the ICTY is being "tried" by the Milosevic
case.
It will meet the test only by ensuring that its proceedings are
perceived by
the world as fair and impartial. By doing this case after case, it will
be
embraced by the world as a true hall of justice. In our view, the "worst
case" is not the acquittal of Milosevic but -- rather -- a series of
easy
victories for the prosecution. Such easy victories would undermine the
strength and legitimacy of the system.
In this high-tech age, we believe passionately that criminal justice is
not
a mechanical or "engineered" process. Rather, true justice emerges from
a
very human, often painful process -- the process of debate, controversy
and
confrontation between different versions of the story surrounding a
crime.
Some defence attorneys question the fairness of the ICTY proceedings. In
an
article in the Post, Mr. Greenspan has branded the Milosevic trial a
"lynching" ("This is a Lynching," March 13). We believe such a judgment
is
premature, to say the least, especially since Mr. Milosevic has chosen
to
conduct his own defence in this highly politicized case. While we do not
agree with Mr. Greenspan's opinion, we will defend to the death his
right to
voice it.
Defence watchdogs should bristle at any sign of prosecutorial
overreaching
or judicial efforts to hamstring the defence of those accused of even
the
most heinous genocidal actions. Vigorous public debate is part of the
process of testing the ICTY.
Elise Groulx, attorney and president, International Criminal Defence
Attorneys Association; Daniel N. Arshack, National Association of
Criminal
Defence Lawyers.
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Serbian News Network - SNN
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