International Criminal Law and Human Rights (review)

During the past fifteen years, international criminal law has dramatically evolved from a relatively stagnant discipline to a dynamic body of law that is applied and interpreted by a variety of national and international tribunals. Although the basic corpus of international criminal law being applied by these tribunals—the Genocide treaty, the Hague and Geneva conventions, and related law—has remained the cornerstone, the flourishing of international courts that can apply this corpus of law has solidified international criminal law as a distinct and critically important component of the international legal order. The promise of international criminal law, however, is being eroded by a failure to recognize that a critical underpinning of this new legal order must be the rights of defendants and how to institutionalize these rights so that there is equality of arms between the defense and the prosecution.

This shortcoming is reflected in International Criminal Law and Human Rights, by Claire de Than and Edwin Shorts, an otherwise exemplary treatise that skillfully summarizes the current doctrines of international criminal law, but neglects to pay attention to how the degeneration of defense rights might eventually overshadow the phenomenal progress of international criminal law. Thus, while de Than and Shorts ably explain the nature and status of international crimes and international courts, their book fails to come fully to grips with the fact that international criminal law, as a result of the growth of the past decade, is much more than an academic discipline or a collection of legal doctrines designed to punish tyrants and war criminals. Instead, it is a living phenomenon and the institutional and procedural protections of defendants must be seen as part and parcel of the whole.

The title of de Than and Shorts' book, pairing "international criminal law" with "human rights," begs the question. Does the inclination of international human rights advocates to promote prosecutions of perpetrators of atrocities mean that defense rights must be relegated to an afterthought? This certainly seemed the case at the Rome Conference on the International Criminal Court. At its conclusion in July 1998, over 130 countries adopted the Rome Statute on the International Criminal Court. With 128 articles, the Rome Statute was justifiably lauded as an astonishing breakthrough. The primary judicial institutions created by the Rome Statute included offices for the prosecution, the judiciary, the registry, as well as unique units to assist victims and witnesses. Incredibly, however, the Rome Statute does not create an office for the defense.

This glaring omission resulted from an unstated complacency among the national delegations that defendants' rights would somehow take care of themselves. The hundreds of nongovernmental organizations (NGOs) present in Rome also did not advocate strongly for an office of defense on par with the prosecution. Fortunately, though, the Rome Statute's substantive rights are comprehensive, and include a strong array of protections for defendants and persons under investigation that largely mirror Article 14 of the International Covenant on Civil and Political Rights and the US Bill of Rights. Without proper institutional mechanisms and support, however, these rights may be not be fully realized.

Since the Rome Statute entered into force in July 2002, the ICC has tried to deal with the defense issues so as to overcome the problems that have bedeviled the ad hoc tribunals for the former Yugoslavia and Rwanda. Unfortunately, the ICC's initial inclination was to follow the model of the ad hoc tribunals and give the Registrar overall responsibility of defense counsel. This could prove to be a fundamental mistake. The stakes can be seen in three issues currently being debated: the code of conduct, attorney discipline, and funding for legal aid. In all three areas, the ICC initially decided to give the Registrar authority and to afford the Registrar quasi-judicial control over the defense. As a result of lobbying by independent NGOs, including the International Criminal Bar, the Court may be reconsidering some aspects of this plan. If the model for international criminal justice is one with a strong prosecutorial...