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An Introduction to the Main Actors

Course video 12 of 30

In this second week we will examine justice institutions and the different stages of the justice process. We will study how major international criminal cases emerge. We will cover the role of different actors in the process, including prosecutorial strategies and legal and political challenges.

‘Investigating and Prosecuting International Crimes’ is the second course in Leiden University’s new series on International Law in Action. The first course covered international courts and tribunals in The Hague in general. This second course provides an insider perspective into the work of international criminal courts and tribunals. You will learn about the investigation and prosecution of international crimes in The Hague. Atrocities produce unspeakable forms of violence. We will explore whether and how international criminal justice contribute to what UN Secretary-General Ban Ki Moon called the ‘age of accountability’. The theory is, those who commit the worst of human crimes, are held accountable, whether they are rank-and-file foot soldiers or military commanders, whether they are lowly civil servants following orders or top political leaders. We will test how this can be done and if this is realistic. During this course, you will be offered a look into the ‘kitchen’ of the Hague international criminal courts and tribunals. You will learn how international criminal justice functions, who the actors are, what outcomes it produces, and how it can be improved. If you want to gain a better understanding of international criminal cases, like the Lubanga case, the ICC’s first ever trial, and the legal legacy of UN international criminal tribunals, then this course is definitely for you! This course is free to join and to participate in. There is the possibility to get a verified certificate for the course, which is a paid option. If you want a certificate, but are unable to pay for it, you can request financial aid via Coursera.

Visualiser le programme de cours

Compétences que vous apprendrez

Justice, Criminal Justice, International Law, Law

Enseigné par

Carsten Stahn
Prof. dr International Criminal Law and Global Justice
Sergey Vasiliev
Assistant Professor

Transcription

International criminal proceedings are shaped by roles and personalities.

Justice emerges through the interaction of different actors.

But who are these actors?

What are their respective roles?

This is what we will explore in this video.

The court room is often compared to an arena.

Defense council are typically set to tell the story as a tragedy.

Prosecutors presented as a morality play.

But the roles of actors in the legal process go beyond performative aspects.

They are determined by set of legal and ethical obligations that

are geared at ensuring fair and effective justice and in bringing out the truth.

We will look at them in greater detail now.

We will start with the prosecution.

What is the role of prosecutors?

Prosecutors are typically the engine of proceedings.

They start the case.

Their function is not simply to secure conviction, but

to assist the judges in discovering the truth.

As a party, prosecutors cannot be required to be neutral, but

they're meant to be non-partisan.

And this has several implications.

First of all, prosecutors must respect the presumption of innocence.

This means that they're bound to keep an open mind towards the innocence

of the defendant throughout the proceedings.

Second, prosecutors are bound by the principle of objectivity.

This means that they must conduct investigations and

prosecutions with the aim of establishing the truth and reaching a just verdict.

Third, the prosecutor must respect the rights of the accused at all times.

They must also take into account the interest and

circumstances of victims affected by crime, such as victims and witnesses.

Prosecutors are vested with a considerable degree of independence.

This protects prosecutors from external instruction,

from political accountability and from attacks from powerful states.

But does this mean that prosecutors are absolved from politics?

I think you can guess the answer.

Politics play a role in the creation of tribunals, in the appointment of

prosecutors, in the funding of operations, and in the closure of mandates.

Prosecutors also hold the most political function

in international criminal justice.

They determine who will be charged, when, and how.

This makes it important to ground practice in norms and rules, in consistent and

objective prosecutorial policies, and

transparent decision making, and in professional diligence.

The fight over the independence of the prosecutor

was a breaking point in negotiations of the ICC.

At the Rome conference, states agreed to entrust the ICC prosecutor

with the power to take action on its own motion.

But this power was only accepted under the condition of control by

the Pre-Trial Chamber.

Ultimately of course, the prosecution bears the burden of proving

the defendant's guilt beyond reasonable doubt.

What is the role of the defense?

The defense is a counterpart to the prosecution.

The purpose of any defense strategy is to induce a reasonable doubt

in relation to the charges, to challenge prosecution evidence, and

to call into question the connection between the defendant and the crime.

The defense protects the rights of the defendant to a fair trial and

the equality of arms between the prosecution and the defense.

It ensures for instance that innocent persons are acquitted and

that sentences are proportionate.

But the contribution to the criminal process goes beyond that.

The defense is essential for the integrity of the proceedings and

the process of truth-finding.

However, the defense often lags behind the prosecution

in terms of case preparation and resources.

Some counsel complain that the defense often faces a presumption of guilt

rather than a presumption of innocence.

It has less opportunities to carry out it's own investigation and

lawyers often face obstruction when they seek to carry out investigations.

They also lack the power to request cooperation from state authorities.

The rights of the defendant are not merely human rights guarantees.

There are a fundamental element of the fairness of proceedings.

They differ according to the stages of the proceedings.

Suspects enjoy human rights protections such as the right to be informed

prior to being questioned.

The right to remain silent.

The right not to be compelled to incriminate oneself or

confess guilt, the right to be questioned in the presence of council and

the right to legal assistance.

After confirmation of the charges, the defendant becomes an accused person.

This means that the catalog of more extensive guarantees comes into play.

They include the right have have adequate time and

facilities to prepare the defense.

The right to be tried without undue delay.

Or the right to self-representation.

Let us now turn to the judges, what is their role?

The role of judges in international criminal courts and

tribunals differs partly from domestic systems.

Judges are not only arbiters over the defense and the prosecution case,

who evaluate evidence, decide on guilt or innocence and pass judgement.

They're vested with significant managerial and truth-seeking functions.

Judges serve as a filter for prosecutorial charges and

as guardians of the rights of the suspects and defendants.

They also have responsibilities for the fair and

expeditious management of proceedings.

Moreover they're bound to ensure that proceedings are run in a fair, orderly and

efficient manner.

Judges can even intervene in the parties' cases on their own motion.

They're not meant to serve as accusers.

But they can call witnesses they consider relevant even if they're not called by

the prosecution or the defense in order to determine the truth.

Judges have thus played a significant role in shaping international criminal justice.

They were never simply la bouche de la loi, but pioneers and engineers.

Finally, there are the victims.

The victims are to some extent, the new kids on the block.

The increasing role of victims in proceedings is one of the most daunting

changes in the accountability landscape.

Victims are no longer spectators or

object of trials, but agents in criminal litigation.

In several courts and tribunals, such as the special tribunal for Lebanon and

the ICC, victims have been allowed to act as participants in criminal proceedings.

This right flows from human right norms.

The right of access to justice and the right to an effective remedy.

But there's an important caveat.

In the criminal process, these human rights guarantees have to be balanced

against the rights of the accused.

Victim's rights must thus be interpreted in light of the defendant's rights and

procedural fairness.

Victim participation is often praised as progress.

Victims may, for instance,

complement the prosecution perspective in relation to the charges, evidence or harm.

In some cases, they serve as a check on prosecutorial choices.

But some aspects of their participation remain disputed.

Some share doubts whether victims should be entitled to file

incriminating evidence and to what extent their perspectives add to the actual

trial beyond shadowing the prosecution.

To sum up, we've seen in this video that there's three key actors.

The prosecution, the defense, and

the judges exercise roles that go beyond their individual interests.

They are guardians of the fairness and integrity of the criminal process as

a whole, and part of the truth finding process.

Victims have an equally important role, but

their rights must be reconciled with the protection of the rights of the defense.

In the next video, we will look further into the challenges of the prosecution and

some of the difficult choices it has to make.

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