Welcome to investigating and prosecuting international crimes. Today, we have an interview with Karim Khan QC from Temple Garden Chambers. Karim Khan is one of the most successful council in international criminal justice. He has defended defendants like Charles Taylor or Kenyan Vice President Rooto. He will explain to us in this video how it is to practically defend defendants and victims in international criminal courts and proceedings. Karim, it's a great pleasure that you join us here today. We are very happy that you join us on this program. Let me start with a few questions. So Karim, what does your job as defense counsel? How do you see your own role? What are your ethical obligations? >> The commission of a defense counsel is to be the voice one's client, but to review the evidence objectively. To give the client candid advice not what the client wants to hear, but what you're ethically obliged to communicate, which is the law, the strengths and the weaknesses of the case and I think that's the primary duty of council. We have rules of ethics and that's what distinguished members of the bar whether we're prosecutors, we're defense, we're representatives of the victims. It's what, separates us as a class, as lawyers from people on a soapbox in Hyde Park corner or ranting, raving. It's that we're not parrots or hired hands. We have to do justice in a certain way, because we're officers of the court. And that, has practical consequences in terms of how you investigate in terms of how you present evidence and the diligence you take in presenting arguments that are based on evidence and your absolute prohibition whether you're prosecuting or for the defense in presenting evidence that you do not believe to be true or that you know to be false. So, these are not theoretical abstract rules of gerontology. They're the foundations of the legal profession everywhere and I think that's something I have holding in very close, and I cherish it. I think it's something that we as lawyers, whatever system you come from need to always keep close to our chests. >> International criminal procedure has gotten ever more complex in past decades. Is it still possible for defendant to defend themselves personally or do they need support of counsel like yourself? >> There's two things, can they and should they? I believe in the right of self-representation. I think there must be that role for the occasions where an individual says, I want to represent myself and I think that should be protected. It's a right now that I think is part of the legal fabric in so many different systems. Of course, it's not to give them a pulpit for which they can use for political advantage or say, terror and hatred or national sentiment. But if they wish to represent themselves,and they should, albeit that it's not without some parameters of appropriate conduct. We've seen in the formula's lobby of certain accused like sexual, for example, and many others that have abused their positions and the only reason they represented themselves. One could argue was that there was never intent on putting forward viable defenses, but putting forward polemics and political national sentiments. So I think they should be allowed to do it, but they should be circumscribed. Most clients that are well-advised and who know the area would wish to get lawyers who are experts in the same way that if you've damaged your leg in a car accident, it's a foolhardy person that will try to reset their leg themselves on the pavement. It's much better advised to go to a hospital and have an orthopedic surgeon come in, and help to make sure that the leg heals, and that one isn't left with a permanent limp, and I think the analogy applies to some extent in relation to international representation. >> The defense is often at multiple disadvantages vis-a-vis the prosecution. Did the defense benefit from the presumption of innocence? But is a presumption of innocence sometimes a fiction in international criminal justice? >> It's not a fiction, but sometimes it's a buried treasure and what needs to pull it out from the Earth. There are judges of good conscience everywhere and that prosecutors, and defense, and parties that seek uphold the principle. And there are cases that end in a quickles in which you see, the judges have referred to the presumption of innocence, the burden proof on the prosecution. The principle of the. But at the same time, it would be naive and inaccurate to say that the presumption of innocence doesn't face adversaries, particularly in the international plane. When one is dealing with very often notorious incidents that have been an individuals that have been in newspapers, been on CNN for months and NGOs, civil society groups as well as the media, they often have painted that individual as guilty before the trial starts. I think those realities need to be taken on board both by the court system and particularly by those lawyers representing them, because whilst judges are professional individuals. We don't have juries, professional individuals. They are individuals. They are human beings and they live in the same world that we all live in. And when they are reading information, of course, they may have picked up certain sentiments about the strength of a case or the character of an individual. Of course, one expects those judges. But when they sit in our case to put that to one side both on a legal aspect and a psychological aspect, I think the environment in which cases operate is important to understand. >> So with respect to interim release, for instance, we're saying that's been very difficult for defendants to actually get released. And so, do you think there should be more given basically to the presumption of innocence in proceedings? >> I don't think more room, I think the presumption of innocence is one of the non-negotiable principles of any civilized legal system. It is one of the principles that people, human rights defenders have fought for at great personal cost over centuries and it can't be bartered away. And those that somehow think on the international plane dealing with what is described as warlords, for example, in some areas or dictators in others. If we whittle away on the presumption of innocence there, the same whittling away of the presumption of innocence will take place in a country with a nascent legal system where human rights activist is in the crosshairs of a draconian centralist authoritarian government that wish to put him or her behind bars. We can't dilute the presumption of innocence anywhere, whether it's internationally or domestically. Because if we do, let it slip here, I think what chance those that are fighting for human rights, civil liberties, justice for all, everywhere in the world, and I think it's not a question of more or less. It needs to be applied properly. It's a constant. >> How do you prepare an effective defense strategy? Can you explain to us some of the steps that you would go through when you prepare your defense case? >> It may seem a fudge, Carson, but it's every case is different. I mean, generally of course, you must read the disclosures. You must start building a relationship of trust with one's client, if you're defending. You must look at the strengths of the case and the weakness of the case. It's a process. It can't be done overnight. I mean, these are massive cases. The documentary evidence, open source evidence, witness evidence is very significant. That needs to be mastered. At the same time as you start building a rapport with ones client and getting instructions. And it's a staged process of course. That there are certain, critical junctures that focus the mind of a lawyer. In the ICC of course, we have initial appearance, we have conformation, and all the rest of it, a trial date. Those are dates to work to, but it really requires a mastering of the evidence, an understanding a humility to go into countries that perhaps one is unfamiliar with. And not to come with preconceptions or abuse that were coming from a developed, civilized part of the world or coming with great substantive knowledge. You need to grade really as a student, but there all students, and to try to learn the politics and the history. It seems a very huge task and it is. And I don't say one has to necessarily master it, but you must try. And if one understands sometimes the undercurrents of a complex societies. The political aspects of a case. The historical, cultural, religious, ethnic, complexities of a country. I think that's part of the background tapestry upon which, the threads of a prosecution case are woven. But you can't do it in abstract, and if you try to use it in abstract, you lose your compass from being able to assess, perhaps, the credibility or voracity of certain witnesses. Some may be truthful, some may be spinning a yarn for certain benefits. Instinct is talked about, but it's more than instinct. You need to be informed of certain objective aspects of the country from which a client comes, or the country that is the object of the situation under investigation in the case of the ICC. And if you're armed with that, you have a better chance, I think, to give good advice and know where the pitfalls are. >> The prosecution has often been in a situation for several years. You as defense council, you receive the mandate. How crucial is it for you to be able to conduct an independent defense investigation? >> It's absolutely critical. I mean, without it there's no chance, I'll put it bluntly, there's no cat in hell's chance of a fair trial. And it's as blunt as that. And unfortunately, and I've said it before, and it gives me no pleasure, there was an attempt by the drafters of their own statute, as you know to deal with some of the difficulties the defense face, bringing some of the good aspects of the civil law system by way Article 54, in which the prosecution obligated to investigate not only incriminatory evidence but exculpatory evidence. And I think we've seen over a number of years and over so many cases direct evidence that I've seen from transcripts, that they're that's a dead letter. And there's really an absolute unwillingness to search for exculpatory evidence, if the prosecution happened to come across it, of course it's the slowest is the disclosure system is working properly. But very often we've seen whereby interviews the question come is asked that elicits as compatriot evidence. I've seen transcript after transcript. The interviewer says, stop there. And changes the topic, instead of making further investigation. I think that, until that is properly adjusted. Article 54, so that it reflects the intent of the draft as the room statute. Independent defense investigation are absolutely, critical. Even when article 54 is working properly, it's needed. But when that safeguard that was built in, engineered into the system, is so obviously, failing, I think it's something that needs a great deal of attention by the defense. >> As defense counsel, you often have to counter a lot of evidence. Anonymous hearsay evidence, documentary evidence. Does the defense have a meaningful opportunity to challenge the evidence presented against it? >> I actually think there is. I mean, it's very easy, some defense will say, everything is against them, but generally speaking, at by the end of a process, evidence can be challenged. One of the weaknesses is that there is a tension, in the early stages. The prosecutor, the defense want to have a confirmation, in the case of the ICC, a more substantive very often, or sometimes anyway, a more substantive confirmation hearing, makes the defense in me say, this is absolutely nonsensical, it must be thrown out. But, because the prosecution have more liberty under the regime, to withhold evidence and to not call witnesses and rely sometimes on summaries. It's sometimes more difficult to get to groups with it. But I actually think by the end of the process, the system's mature enough that the days of being convicted by anonymous evidence, are well and truly gone. It was tried once with and, it occasioned or a massive amount of criticism and it was never really tried since. I think now the right to confront one's accusers, and to challenge evidence, is clearly part of the international due process landscape. And I think we have that right. I wouldn't say that it's simply a token gesture. >> Did determination of the truth, is one of the key features of a legal process? Can international criminal proceedings bring out the truth, and are there some personal moments of truth that you have witnessed in the courtroom? >> This is a very interesting question. Is the purpose of a criminal justice system to get to the truth? That occasion sometimes a great deal of heat, between civil law practitioners and common law practitioners. I remember being in the OTP of the Yugoslav tribunal back in 97, 98, and the issue is it for the truth or is it simply proving a case beyond a reasonable doubt. The danger of saying, it's the truth is it's a different model. We have commissions of inquiry. That want to get all the evidence and at the end make recommendations. But a criminal process is looking at the evidence that's presented before it. There are aspects of course that whereby judges can call evidence on their own motion. The danger of giving too much regard for this idea of an historical truth is trials can be far too long. We've seen this in the Prlic case in the ICTY. An attempt by the prosecution to prove the Greater Croatia case. Now, they did it, subject to appeal, but they did it. But at what cost? Boban was dead, Tudjman was dead and all the major perpetrators were dead. And yet this idea of showing an historical truth meant that a trial that started, not the first appearance, but a trial that started in 2006, we still haven't heard the appeal probably till next year. Now, that's costing millions. It's taking a lot of time, justice delayed is justice denied is a watch word. It's also a function of this tension that a prosecutor faces. It's not easy to solve, between proving responsibility and setting the complete possible parameters of that responsibility. So I think, that it's not clear that it's there to establish a truth, it's there to show, at least on certain evidence, there's criminal responsibility. And it requires discipline by the prosecution, of course, discipline by the defense as well, not to get side-tracked or going around the houses. As for moments of truth, there's so many in the court room, where you feel that a witness has withstood cross examination very well. Say the prosecution, has given evidence truthfully and then the defense have thrown their best at your witness and the witness has batted it away. In a way that you feel as a objective observer, judges will know that witness was telling the truth. Or from the defense where you manage to cross examine a witness and suddenly the witness disintegrates, because the first account you feel confronted by objective evidence disintegrates under that scrutiny. These are all moments of truth, of course, you have larger ones at the end. In Cambodia, for example, when I was representing the victims there, you see very much, what it means to victims to have some kind of accountability, for events that even took place in the 1970s. Old people, with tears in their eyes and you realize, this is not some kind of choreographed dance simply for the benefit of a small community of lawyers. This means something to people that have lost in a very profound way and I think that's something to really bear in mind. All those moments of truth, a moment of truth when somebody is acquitted and the family starts crying. Having a father whose been under suspicion for many, many months can be as meaningful as when somebody is properly convicted and the victims say, justice at long last. So there's a whole series of little truths in the course of a process one hopes. And ultimately the judges decide on the evidence, but the public, I mean that's why we have public hearings. The public who watch proceedings, also have every right to make their own assessments of the truth. >> You have talked about acquittance, and acquittal is very hard to achieve in international criminal justice. How does life for one of your defendants look after an acquittal has been achieved? >> I think one, if one is brought up on a diet of a LA law or suits or all these wonderful legal dramas, one could be seduced into thinking that the law is full of fast games and smoke and mirrors. When there are acquittals, it's a function of the evidence. And a defense that's based on the truth, where the truth shows that an accused is not criminally responsible is liable to be the defense that succeeds. A defense that is predicated on absolute falsehoods and a contortion of reality is likely to fail and it should fail. And so, ultimately, that's how the system should work. Any other alteration of the equation will bring justice into disrepute. It shouldn't be about the cleverness of us lawyers. It must be about veracity of accounts. And I think the system, the prosecution that succeeds should be one, based upon the truth. In relation to acquitted persons, we've seen so many examples, I mean from the ICTR, individuals who've been acquitted and they still can't go home. >> Yeah. >> I mean, and we don't give enough attention to it. It seems sometimes, unfortunate that if one was accused of some abuse in Thailand, the world civil society groups would be up-in-arms and put a spotlight of attention there. And say look at this, some person is in a jail in Thailand or in some other part of the world. And yet an individual who's been found not guilty, left in this position sometimes of stasis, where they can't go back to Rwanda or they can't go to a third country. And they are effectively still in custody or have at least had their life suspended despite the decision of judges. Other times of course you're found not guilty and the rumors continue. Now, sometimes rumors may continue because the old adage gets traction, there's no smoke without fire. Sometimes it happens that the rumors continue because people want to pass the buck and say, it's not because they've spent six years investigating the case at so many million Euros, and they got the wrong person, and the case has fabricated and fallen away. It's because of extraneous factors like political noise. So for that individual, of course, they'll go on stoically with their lives, but is that fair? I don't think it's business as usual because it depends upon the individual and how they approach things. >> What can be done to improve the existing system? >> I think we need honesty. In the old days, I had the greatest respect for the Pope, but the doctrine of Papal infallibility has even been discarded in the Catholic Church largely. And the doctrine of prosecutorial infallibility, is similarly to be jettisoned as absolutely anathema. None of us defense, no human being is perfect. None of us are right all the time. All of us make mistakes. I will make mistakes as a defense counsel. If I tomorrow, am prosecuting, I will not suddenly become perfect and incapable of making mistakes. So I think one of the biggest changes of culture, Virgil said the price of liberty is eternal vigilance. We need to be vigilant about our egos. We need to be vigilant in not over protecting institutions. The law is robust and as long as there's truth, as long as there's transparency even when the system fails, If you say it's failed, there's a momentary dip In confidence, but because it's done in a way of not denying, confidence in the system of justice is increased over time. And I think that greater understanding that we have domestically very often, should have a greater place internationally. People should be able to say the system is not perfect, the values of the court are necessary, they are to be applauded. There needs to be an end to, not only a culture of impunity, but a world in which the law is for the weak and not for the powerful. But at the same time, acknowledge that the court and the system of justice that we have, this still nascent system of justice, can and must do better. And it should be no criticism to say that, that things can and must be better than they are. And that requires a mindset of change amongst all parts, whether you're a judge, prosecution, ASP, defense, victims, academics. All of us need to have that humility to listen and see how can we get better. Rome wasn't built in a day, neither was the Rome statute. >> I know it's a collective enterprise. >> It is. >> At the moment, there are multiple initiatives to establish an international bar association in relation to international criminal courts and tribunals. Do you think this is a helpful idea or do you think clients are better represented by professional council, as you, without the bar association? >> I think one needs to see how it operates. Some were very, very vocal about the need of such a bar association. Bar associations, domestically, can be fantastic. The English bar, the Paris bar, they have great histories. Sometimes one is concerned that international bar associations can be used as little fiefdoms to promote individuals at the expense of the greater good, so to speak. I'm not sure. Certainly, I thought that the attempt by Sir Adrian Fulford, now Lord Justice of Appeal and ICC judge, of course, to give a greater place to the OPCD and then the OPCV as some institutional memory and also an institutional voice for the legal representative of the victims and the defense was a good one. Because being staff members, they shouldn't have really ulterior agendas because they've got their contracts. And really it is acting in the very best sense of a civil service for the good of the defense or for the victims. So I thought that had a lot to commend it. But I think there is now clear support from the registrar and the group, and I've attended the meetings as well for an international criminal defense bar, but I think we need to be vigilant to make sure it's fit for purpose. >> If there's some material, for instance, that has been collected by the Office of Public Council for Defense, once the defense of the defendant, basically, takes charge of it. How would it look at defense lines adopted, records, basically, by someone who is represented to defense on behalf of the court rather than the individual? >> Sorry, I didn't get that question. So where OPCD collect evidence? >> Exactly. How can we ensure that once defense has been represented in general by an International Criminal Court and Tribunal, and then afterwards the person is arrested and then the defense counsel is appointed for the person. How can there be some kind of continuity, or how can be assured that whatever has been done by someone appointed by the court is [INAUDIBLE] suspicion by the. >> No, sorry, it's my fault, I wasn't clear, I'm not in favor of OPCD or court staff representing institutionally victims necessarily or the defense. I think the independent bar is the best place to do that, because it is independent. And the accused have a selection over every lawyer on the list, or any other lawyer if it's privately funded. Similarly with the victims, they can get people from their locality who know their culture, their traditions of their group or they can go international and get both. What I was trying to say in relation to other administrative issues in relation to the victims as a class, and the defense as a class, having an institutional voice. Whether or not an international criminal defense bar was the only route forward, or whether or not, it could make also use of the OPCV and OPCD. But I'm a strong advocate of the international defense bar and in fact, even on costs, I think it's cheaper. If you look what a P5 senior trial attorney gets, a lead counsel, of course, gets significantly less than that. That shouldn't be the case but that's the reality. A co-counsel gets much less than a P4, not only in terms of fees but of course, tax and all these things that staff members get that defense don't get. So I think even economically, it's probably a very efficient model of using independent counsel for the victims and for the defense. >> You have also represented victims before international criminal courts and tribunals. What is the role of victim participation? Aren't victims sometimes only a second voice to the voice of the prosecutor, which diminishes their role in proceedings? >> It all depends. One has seen victim's lawyers that do become prosecutor biased and whose famous words always after they stand up to any submission is we agree with the prosecution. I mean, that adds nothing to proceedings if that's said by rote, if it's some kind of pro forma utterance that's said, but it needn't be like that. The role of legal representation of victims, I was very cynical about it. I thought during the prep comms and the draft and the establishment of the ICC, these proceedings are far too slow anyway with two parties in the courtroom, never mind a third with party-like rights. And that was really one of the reasons that persuaded me to take on representing the largest group of civil parties in Cambodia pro bono. I wanted to learn about the system and try to assist and I saw there that it did have meaning to the victims. But you don't need to just parrot the prosecution. I mean, if the prosecution are on the right track, you should support them. But if they're not on the right track the victims' lawyers have every right, and I think an obligation, to set the prosecution right, in effect, by bringing to the court's attention the views and interests of their group, which may not accord with a flawed theory advanced by the prosecution. That requires independence of mind and it goes back to what I said at the beginning. Whatever degrees one has from Leiden or Oxford or Harvard and all these great universities with these very, very good programs, independence of mind is not to be scoffed at. It's something really that has to be inbuilt. And whether you're prosecuting or defending or for the victims, it needs to inform everything you do. And if you do it in that mind, Whatever the, of going, willing to go with the flow where it's right, and be willing to go against prevailing views where you think those views are wrong. You get in that system of justice, in that tension, in that friction, sometimes fractious even environment. The truth emerging, or at least being able to tell who is guilty and who is not guilty. But it requires lawyers not to just do things like automatons and I think that's why the legal representative of the victims is not working properly, at the ICC. To me, it's got massive potential, but I I think it could improve a lot. Let's see, maybe if I had the privilege of doing a victim's case, I'll see it's harder to do than I'm saying. But I think it can be done and you know, in Cambodia, you know, we managed to do it in a small way. Even with a greater degree of rigidity because there the rules provide the legal representative of the civil parties. The civil parties must support the prosecution, whereas here you've got more fluidity to put forth the views of your group. >> Victim participation often raises high expectations. How can you take into account that hundreds of victims are represented in proceedings? >> I think the role of victims is key. This is really one of the signature qualities of the Rome statute. It sets it apart from Nuremberg, ICTY, ICTR and really special court for Sierra Leone, and all the rest. But I do, my own personal view, and it may be unpopular, is that the standing of legal representation for the victims. And that utility in the eyes of prosecution defense and the judges is lesser today that it was when the wrong statute came into force. And I think that's cause, to my mind, of the way things have been conducted. And I think all of us, I said, defense perhaps, or the prosecution. All of us can do better, collectively, collegiately and it's not about pointing fingers and saying that we're perfect. All of us, including the judges, all of us need to do better. And if we do better, there will be more confidence in the international institution known as the ICC. If we're complacent, I think that will lead to a lot of sorrow to those that believe in a super national body that can bring accountability for the worst crimes that man and womankind have suffered. >> When it comes to reparation, there's often a tension between individual reparation and collective reparation. How can collective reparations be meaningful based on your experience? >> It's very difficult to give individual operations when the class is so large for it to be meaningful. I mean, a typical crime against humanity, how does one deal with it? They can be doing fine, but imagine there's ten witnesses, and they come before the court. And they get reparations, and maybe 100 others don't. What does one do? When you have, let's think of a terrible situation like the Rwandan genocide. How would you possibly give meaningful reparations to 700,000, 800,000, 900,000 people? And what kind of, what is the meaning of that? I think it is, in the end that would become symbolic because one could never give any amount of money that would repair the damage. But even one couldn't give more than a token amount if the crime base is so large and I was in a minority in this in Cambodia. Some of the other groups were very much in favor of monuments, and I took a different view, and so my civil parties agreed with me. I think you can't litter the landscape, like the killing fields of Cambodia, with monument after monument in a country that still needs to progress significantly in terms of education and health care. It's a moral issue, as much as a legal one, so I think you must tailor it to fit the society one is dealing with. The needs of the people, the victim group, and I think very often the collective type of reparations in terms of whether its a school or a hospital or a clinic that some memorial as well. Is an effective way of both, recognizing suffering, and leaving something behind that gives actual benefit, to the people that have all ready suffered so much. So, I'm quite a fan of that. If the facts allow it, of course, individual reparations would be wonderful, but I think sometimes, it's difficult given the types of crimes that come before the international court are the gravest. Which by it's definition are often both widespread and systematic attacks. >> Some have said that the mandate of the trust should be expanded and reparations should be rewarded primarily in light of forms of assistance of the trust fund. Rather than traditional process, do you agree with that view? >> I do, I think her Honor Judge Christine Van Weingart was one of the leading exponents of that view and it's about efficiency of process. Criminal International judges determining the core function which is the guilt or innocence of an accused. And she raised a question, are they best suited to also deal with their complex issues of society and culture. In assessing, deciding on reparations and I think what she was arguing which to me simply be a good idea was a re-calibration. In which the trust fund for victims would be given additional responsibilities so that they would actually be an arbiter of determining issues of reparations. And deciding how to fit it best according to the demands of a particular conflict and I think it's a lot to commend. That approach, lawyers who don't know it all. And even the best judges I think would say they've got enough on their plates dealing with the basic issue of determining the guilt or innocence of accused. And to think the issue of reparations, maybe the trust fund, I've had fantastic people in the trust fund for victims. There are people out there, not just lawyers, people that are experts in sociology on victims hoard medicines, anthropology. All the rest of it and senior leaders of the international community of standing that would be very well placed to tailor reparations. Within the constraints of practicality of what the courts can practically do that would make it the best fitting. So I think there is room to have some change there. >> Many of the followers of this course are future international lawyers, future persons involved in the field. What type of personal advice could you give to the next generations of international lawyers who want to work in this field? Do you have any personal advice, any personal tips for them, what is important in this field? >> I think love what you do. We operate in an area of law which appears glamorous. We engage in law that one reads about in newspapers and watches on TV. But you mustn't it for those kinds of reasons. I think to law, never mind this area of law. If you were driven by a desire to do justice, whether your prosecuting or the defense, we're united on that all for the victims. And if you have that burning desire to make a small difference, don't leave that path, even as you get more senior in your career. It's very easy for us, or we have these great dreams as students, and then as early practitioners. Then suddenly, you can almost tread water, or be led by an institution or by a tendency on one side of the other. To leave that independence of mind, which is the feature of human existence. And I think believe in it and have passion for it, maintain the objectivity. It's that tension between passion and objectivity that's key. As lawyers, we have to be objective, but it doesn't mean we can't be passionate when we've seen injustice. Either a perpetrator committing a massive crimes or someone unjustly accused. It was a place for that, because these cases are exhausting. They are marathons, you will lose your sleep over it, and you can't do a good job unless you, there is more to it than the financial enumeration at the end of the day. It must be the belief that justice must prevail. That allows you to do it in a way that you can go on to the next case and the next case and the next case. >> Karim, thanks so much for being with us today. It's a tremendous privilege to have someone like you here on this course. Explaining to our future students and future professionals in this field. How International Criminal Justice works? How it is to represent dependents and how it is to represent victims. Thank you so much. We all can learn from your experience. Thanks for joining us.
