John McKay: I wanted to ask you about your views, without naming any names. You’ve been here since 2000. Could you comment in general on the quality from, from your view of defense counsel?
I don’t want to talk specifically about defense counsel. I just want to talk about lawyers before the tribunal, whether defense or the prosecution. My experience is actually this – we have got two categories of lawyers.
We have got very young lawyers who have completed their Master’s Degrees or Doctorate Degrees either in international humanitarian law or international criminal law. They are very conversant with the law. This is what they studied. This is what they know. But, because they are young and they’re fresh from universities, they’re generally at the, the junior level.
Then, you have got very experienced lawyer who probably never studied international law or never studied international humanitarian law but they-, they’ve been in practice in their national jurisdiction for very many years. They are there for very senior lawyer with very good court work experience, okay. And they know all these other things but they lack the basic law. They’ve got to learn the law on the job.
That is why sometimes when you read certain motions, okay, you have difficulties. With the OTP, they are better off in the sense that they’ve got a series of these young lawyers who can also do research and there are also some other medium lawyer who have done this other field. So, they’ve got a bigger room for discourse.
In the defense, they’ve got fewer lawyers of that caliber so they tend to rely more on the experience that they gained in their national jurisdiction, which sometimes is not the same as experience at the international level.
But, with their experience, they learn faster which means that the defense lawyers who have been here over time, they’ve improved. They have – so they, they do it much, much better.
That’s why I don’t want to say defense or the prosecution because if you go through the judgments, you see that the chambers criticize both parties, okay? So, we make our mistakes and we improve from our mistakes, and our policy here is that we should not repeat the mistakes that have been made. We should try and make new mistakes.
JM: Can you, can you comment generally on the relationship between the Office of the Prosecutor and defense counsel? You know, when I practiced as a, as a prosecutor, in some jurisdictions the relationships were not so good with the defense counsel. In others, in general, the relationships were good. So, can you tell me about just conflict, if any, between defense counsel and the prosecutor during your time here?
My personal relations with the defense counsels are very good. There are some – my, my friends, you know we have dinner together. We discuss issues together and there is no big deal about it.
There is one small area, which I do not want to call it a conflict. I just want to put it how some defense counsel present the theory of their cases and how they think they can defend their client, and some of these has caused problems. Where a defense counsel goes and pursues political argument, then that to me is a problem, okay?
In the sense that the basis for the prosecution is the indictment – the allegations inside the indictment. And it w-, it will not help the prosecution, sorry, the defense rather, to spend time saying that, “Why did you, why did you not indict X or Y or Z?” Okay?
That (___) is not before the court. I actually, I actu-, I keep on telling them the example. I say, “Look, if a person is charged with stealing a car, he’s not going to court and say, ‘Hey, my neighbor also stole a car the other day. Why don’t you prosecute him?’ That is not a defense.”
So, the def-, the, the defense here should focus on defending their clients based on the indictment, but some of this has not been done. As a result, there, sometimes there’ve been very bad exchange in chamber, be-, before chambers where others bordered on insult, okay.
So, tho-, tho-, those are there but it, but it is rare. It is rare. These, these are exception. It-, but, over (__) we have had defense lawyers who are very courteous even in questions where they are dealing with rape and sexual violence, they have been very polite when cross-examining witnesses and it has been perfect.