We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. Justice Jackson opened the Nuremberg Trials with in 1946. Today, fairness, and most of all fairness towards the defendant is recognized as a raison d'etre of international criminal proceedings. International criminal courts and tribunals firmly ascribe to the higher standards. Prosecutors need to investigate and share exculpatory evidence. Defense teams before these courts are often better equipped than their domestic counterparts. But successfully defending suspects and accused remains a challenge. Full acquittals remain rare. We will now examine why. The defense faces a heavy burden. International courts are viewed as instruments to fight impunity. The defense needs to counter charges that are associated with the protection of human rights and values of the international community. There's a popular belief that an acquittal is a failure. It is easily overlooked that the defense perspective is a necessary counterpart to the narratives of the prosecution and the victims. Each story has several sides. The role of the defense is to ensure that justice is done and seen to be done. The defense has a key role during all stages of the criminal proceedings. Investigation, pre-trial, trial and appeals. Defendants may invoke specific defenses such as mental disease, self-defense, duress or mistake of fact or law. But most cases are won on evidentiary grounds. The preparation of a successful defense case starts at pre-trial. The defendant has the right to be tried by a court established by law. Defense teams before the Yugoslavia Tribunal, the Rwanda Tribunal, and the Special Tribunal for Lebanon have sought to challenge the legality of the establishment of these courts. Some defendants, like former Serb president Milosevic, have argued that they face victor's justice. But all of the challenges have been rejected. The primary target are typically the charges by the prosecution. The defendant has a right to be informed promptly and in detail of the nature, cause and content of the charges. The charges must be specific enough in order to allow an effective defense. But often the defendant is charged with a wide array of counts and alternative modes of liability, since it is difficult to establish who did what to whom, when, where and why. A key aspect of the defense strategy is to develop it's own counter narratives to events or to challenge the role or next, of the defendant to the crimes. In order to mount an effective defense, the defense has a right to see and confront the evidence. This defense strategy typically involves two elements, defense and attack. The defense may challenge and discredit existing prosecution evidence. In addition, the defense may carry out an independent defense investigation in order to establish its own case. This follows from the right to have adequate time and facilities for the preparation of the defense. At trial, the defense has a right to call, examine, and confront the witnesses. The court has a duty to assist the defense in obtaining the attendance of witnesses What are the main challenges of the defense? The first obstacle is a lack of substantive equality between the prosecution and the defense. Equality exists in the procedural sense, but courts have made it clear that the equality of arms does not imply equality of means. Each prosecutorial team is composed of multiple lawyers, police investigators, analysts and in-house experts, case managers and staff. The defense has typically more limited resources. It comes in after the prosecution. When the defense starts its own investigations, memories might have been tainted, and material documents lost. Prosecutors are better equipped to gather access to evidence on the territorial states. The defense is often regarded as being on the side of the enemy. It is difficult for defense teams to operate in states that are uncooperative. Or to receive the protection that is necessary to carry out their functions. The defense further lacks the power to compel witnesses or to initiate proceedings for the obstruction of witnesses. The second challenge is the large scope of material that the defense needs to confront. The prosecution often discloses vast amounts of materials and investigative data to the defense. The materials may be unorganized or provided on a rolling basis. The prosecution may limit disclosure in the hope of gaining a tactical advantage. This makes it difficult for defense teams to analyze the evidence supporting the charges. The prosecution case is often not static, but dynamic. This means that the defense must to some extent, shoot at a moving target. The defense faces the risk that the right to be tried without undue delay is used as a stick against the defendant. A site problem is a use of anonymous hearsay evidence and the concealment of sources. According to the presumption of innocent, everyone shall be presumed innocent until proved guilty. The defendant has a right to see and to know the identity of his accusers. It is difficult for the defense to challenge information and reports that do not clearly identify the sources that they rely upon, quote, generally attached law probative value to such evidence. But they're frequently used to support narratives about a conflict, or to continue to detain a person in custody. In some cases, prosecutors have used anonymous witness testimony in order to protect witnesses from retraumatization through confrontation with the accused. This practice conflicts with the right of the defense to know the identity of witnesses. For instance, in the Lubanga case, the pre-trial chamber refused to allow anonymous victims to add evidence to the prosecution case, since this would violate the principle prohibiting anonymous accusations. Finally, the defense often struggles to defend itself against broad theories of liability, such as joint criminal enterprise or command responsibility, and the use of circumstantial evidence. This creates risks of guilt by association. In some cases, chambers virtually salvaged the prosecution case by resorting to circumstantial evidence to enter a conviction. This is problematic since defendants may have had limited notice of the evidence. Moreover, the conviction may be based on the subjective opinions of judges, meaning their intent conviction, rather than guilt beyond reasonable doubt. In the next video, we will explore how defense interests are represented, to what extent a trial can be held in absentia, and how a defense case succeeds.
