Professor Felicity Gerry KC — What is it like to Defend at the International Criminal Court?
I am delighted to speak to you all today at the Melbourne Journal of International Law Annual Cocktail Evening for 2023. Normally I would thank the faculty staff but today I will thank them for their strike to improve pay and conditions.
I would like to thank Editors Jasmine Gan, Eleanor Twomey and Jonathan Ta for their kind invitation to speak on my experiences of what it is like to defend at the International Criminal Court. I was an ideal candidate to ask since I recently returned home to Melbourne from the International Criminal Court ('ICC') where I was on the team defending Mr Al Hassan who is accused of various international crimes arising from the situation in Mali. We have made our closing submissions and we are awaiting verdicts, so I will be a little circumspect in what I say. That said, to recognise that this Journal strives to shape discussion of the most important and relevant legal issues, I have decided to engage in a little theory as well as the odd practice anecdote under three topics:
(i) Being able to defend, especially as a woman;
(ii) The importance of defending in international criminal law ('ICL');
(iii) The challenges defending in the ICC.
First is the time it has taken me to get there.
I first showed an interest in international law when I was at university but, having dropped out of school to teach people to ride horses, I did not have a traditional CV and found it difficult to obtain a spot as a pupil barrister. A colleague of mine did a stage at the European Commission but I couldn’t afford it. I started a general common law domestic practice in 1994 so I will have been at the Bar 30 years next year, 11 of those in Australia. I did not leave international law behind; by 2007 I was hosting an international law seminar at Exeter University under the title 'Iraq, Cambodia and Beyond — Fair Trials in an International Setting'. Most speakers were members of my then chambers in London. Most were men and all had easier paths to working in international criminal law than I did. It took me rather longer to get there. It remains plain harder for a woman, and I had to do a lot to prove my worth — I often say I have watched mediocre men sail into roles I have had to work so hard to even be considered for. I am delighted now to be in silk and to lead. I hope this helps to inspire young lawyers to achieve, whatever the obstacles.
Domestically, I learned to run cases of increasing complexity and size and took silk in 2014. The skills to run a large case are necessary for counsel in the ICC so make the most of your domestic practice as you aspire to be international lawyers. I now combine my practice with academia as a Professor of Legal Practice at Deakin University and an Honorary Professor at Salford University. Scholarship is a vital aspect of legal practice, and many UN roles expect the applicant to have at least a Masters degree. To find my way into international law, I have published book chapters on the evidential and legal issues at the ECCC, the ICTY and the ICC. I published reports on rape in conflict zones. I am editor of ANZSIL Perspective — short articles welcome — we compliment MJIL and are not rivals… I have filed Amicus Curiae briefs on the Radovan Karadžić appeal on issues arising from JCEIII and how the domestic error of law in complicity law has infected those proceedings and now the KSC. An error I identified with my team in the infamous case of Jogee before the UKSC.
I also relatively recently appeared in the ICC to make amicus submissions on the approach to the non-punishment principle for former child soldiers in the Dominic Ongwen appeal — an issue which was picked up by one judge on sentencing principles but no wider debate at the moment… Ongwen of course went on to become a commander but also suffers long term effects of his childhood trauma — the legal tests for victim perpetrators in criminal law remain the most vexing.
So, you could say I have been knocking at the door of the international criminal law for a very long time, finally, with thanks to Melinda Taylor, being given my opportunity to defend Mr Al Hassan in 2022. The message for young lawyers who want to specialise in international law is that sometimes it is a long journey, but it is worth it when you get there. On the practical side, getting to grips with the computer system, the appalling legal aid provision for the defence teams, the lack of equality between the prosecution and the defence, the long hours and the revolving entrance door (in which I was regularly stuck) is a challenge. My mantra was ‘just get me into court’. I know how to examine a witness and to counter a legal objection and, in that sense, much of the process is the same as any other courtroom, albeit with the world watching. The Court is very much its own beast with its own set of surprises. For example, it was somewhat of a surprise to find a French prosecutor when Mali was a former French colony. However, I had the benefit of working with highly skilled professionals on perhaps the most diverse team I have ever had the pleasure to work with. I recommend you read the publicly redacted version of our final closing brief with work from Islamic law experts, submissions on the complexities of the nexus requirements, arguments on the allegations of destruction of cultural property and brilliant contributions on liability. The names of this fabulous team are in the list at the top of the document, without whom we would not have been able to function as counsel. With a special mention of course for the silent heroes investigating defence issues on the ground and the interpreters who gave us unwavering support. Our closing brief is a seminal piece of work of which the whole team should be rightly proud. They all work under extraordinarily difficult conditions with too little recognition of the value of the defence. It has been a privilege.
Next is the importance of defending in international criminal law.
For this speech I dug out the papers from that 2007 seminar where Professor Caroline Fournet said something like this (and I paraphrase): 'There is a paradox in considering international crimes and admissible defences. The ICC has jurisdiction over the most serious of human rights violations including war crimes, crimes against humanity and genocide. It may seem improbable that there could ever be admissible defences to the perpetration of such criminal acts but the fact that international justice provides for defences is to be welcomed, if not celebrated, as a confirmation that justice is not revenge and justice relies on human rights principles of fairness…. [I]t is precisely in instances breaching the principles of fairness — that international criminal trials become a travesty of justice. Fairness and respect for human rights are not synonymous with leniency and impunity.'
For me, the defences are what give the ICC its legality and legitimacy. Enquiring into a situation such as Mali is not an exercise in an assumption of guilt for all those who sought to govern in 2012. It is not an exercise in group liability for human rights violations, but it is an enquiry into the affairs of a traditionally Islamic country through the lens of the trial of a police officer where issues of duress, mistake and superior orders are inevitable and need to be given proper air.
Finally, it is worth understanding the scale of the task we had for Mr Al Hassan.
His case constitutes one of the first 'counter-terrorism' cases at the ICC. Investigating and presenting a case that literally concerned Timbuktu — that euphemism in Western culture for the end of the Earth but for Muslims the heart of Islam where the library still stands, and the people survive. Mr Al Hassan’s case raised issues of duress, mistake and superior orders. Add to this that Mr Al Hassan was tortured and it was the perfect storm of fair trial issues.
In terms of torture, as Alka Pradhan expertly explained in our oral submissions you can watch online, there are multiple credible accounts indicating that Mr Al Hassan was subjected to torture and other forms of cruel, inhuman, and degrading treatment over the course of a year in the lead-up to his transfer to The Hague.1 These accounts detail that while detained by French Barkhane soldiers at a military base outside of Timbuktu, and at the State Security facilities in Bamako, he was tortured including waterboarding and being handcuffed day and night for four months and 20 days, and deprived of adequate food and access to medical care. The ICC prosecution interrogated Mr Al Hassan 19 times over the course of eight months while he was in the State Security detention facility. On the first day of ICC interviews, Mr Al Hassan informed the Prosecution that he had been severely beaten and that he had been threatened during interrogations with the State Security actors at the facility, and at other points during the interviews he complained of symptoms consistent with torture. The Defence challenged the Prosecution’s efforts to introduce the torture-acquired evidence. The Trial Chamber explained that it would not exclude the evidence because in its view the Prosecutors did not collect it 'by means' of torture. The defence has maintained that the issues of torture evidence in this case are critical to the fairness of the present proceedings against Mr Al Hassan, as well as the conduct of future ICC prosecutions. Where there are no legal ramifications from the use of torture and CIDT-derived evidence, the effect is to incentivise torture and to encourage impunity on the part of States, including in relation to future ICC prosecutions.
In relation to defences — as you all well know, duress can mitigate the criminal responsibility of an accused person, mistake of fact and/or law can negate the mental element of a crime particularly where orders are not manifestly unlawful and superior orders can apply to police officers, here the questions related not merely to the group in governance but also to its structures including an Islamic tribunal. All of this was in the important context of Islamic law. As we said in our closing oral submissions: The great power of the International Criminal Court is its ability to make simultaneous enquiry into a situation and the potential criminal liability of an accused person within that situation. It is a power that is intended to have universal reach with a vision of international law that includes the Muslim world. It is a power that must be exercised in context and with understanding of the place and the person. Mr Al Hassan is a Tuareg who was accused as a party to a common purpose to impose Islamic law in such a way that international crimes would follow: superficially the core issue was simple — criminal liability only flows where a person is ‘aware that a circumstance exists, or a consequence will occur in the ordinary course of events.’
In this case knowledge was more complex — did he know the essential facts about the alleged crimes or alleged purpose? Is his liability excused because he was (or may have been – which allows for reasonable doubt) operating under a mistake in circumstances of necessity and bound to follow superior orders? Would a reasonable person in Mr Al Hassan’s position believe that people were governed and judged according to Islamic law and that Islamic punishments were carried out following a proper order? Would refusal have placed Mr Al Hassan and his family in grave danger? Will the ICC decide that international crimes can be constructed from interpretive Islamic law and governance or was there sufficient evidence to conclude that governance and judicial decision making were lawful and/or appeared lawful to Mr Al Hassan, even if he was mistaken? We await the verdicts.
There is a value in standards of law and evidential process and developing the law on knowledge and affirmative defences to function safely. These are standards of fairness that require diverse teams and contextual understanding. The handling of defences must be achieved with great care. If international criminal justice is to be credible and trusted, then the rights of individual accused must be respected where trials proceed according to legal norms.
So, what is it like to defend at the ICC? For me the answer to this is inextricably linked to the reasoning that will flow from the verdicts whatever they may be — defending in the most testing of cases, as Caroline Fournet once said, is key to ensuring the victory of human rights over human rights violations — in that sense we in the defence teams are the most valuable and currently perhaps the most undervalued in the building… especially when we are stuck in the revolving door.
As you enjoy your cocktails, I hope you can reflect on how important it is to raise a glass to those who defend in the ICC.
Professor Felicity Gerry KC is admitted at the International Criminal Court and the Kosovo Specialist Chambers in The Hague, to the Bar of England & Wales and the Victorian Bar, Australia. She is a Professor of Legal Practice at Deakin University, Melbourne where she is the Unit Chair in the undergraduate and JD programs teaching ‘Contemporary International Legal Challenges’ — including war crimes, modern slavery, terrorism and art law and she is involved in the clinical programs. She is also an Honorary Professor in the School of Health and Society at Salford University, researching the intersection between health, law and education, particularly in human rights law relating to women, children and persons with disabilities.