lgbti and asylum in the us

Annette is an attorney practicing in Los Angeles. In 2012, she was a judicial intern with the Supreme Court Chamber in Extraordinary Chambers in the Courts of Cambodia. You can connect with her on LinkedIn here: .linkedin.com/pub/annette-a-wong/13/409/262

The Burden on LGBTI Individuals and the One-Year Statutory Bar to Asylum in the United States

In the United States, asylum law has its origins in international agreements reached after World War II that provide protection to people fearing or fleeing persecution.  These agreements include the United Nation’s 1951 Convention Relating to the Status of Refugees (which applied to persons fleeing persecution from events occurring prior to 1951), and the United Nation’s 1967 Protocol Relating to the Status of Refugees (which expanded the protections to future refugees).  The U.S. acceded to the 1967 Protocol in 1968. However, the domestic definition of refugee, which controlled eligibility for asylum, was defined by the U.S.’s Refugee-Escapee Act of 1957 and only included persons from Communist-dominated and Middle Eastern countries.

In order to bring domestic law into accord with the U.S.’s international obligations (and in response to the burgeoning influx of Southeast Asian migrants in the aftermath of the Vietnam War), in 1980, the U.S. passed the Refugee Act of 1980. The definition of “refugee” was expanded to mean a person with a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Today, this definition of refugee is codified under the Immigration and Nationality Act Section 101(A)(42).

Applicants seeking asylum in the U.S. face a one-year statutory bar to filing (“the one-year bar”). The failure to file an asylum claim with the United States Citizenship and Immigration Services (“USCIS”) within a year of arrival can be fatal to an applicant's claim. Although there are exceptions to the one-year bar, in practice, the exceptions can be difficult to meet. This is particularly true for individuals claiming asylum on the basis of their sexual orientation.

Persons seeking asylum on the basis of their sexual orientation qualify on account of their membership in a particular social group. They can also qualify on account of their political opinion if the government of their country of origin criminalizes or otherwise actively opposes homosexual/non-gender conforming behavior. 

The first case in the U.S. to recognize homosexuals as a particular social group under the Immigration and Nationality Act was Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990).  In Matter of Toboso-Alfonso, an Immigration Judge granted a homosexual man from Cuba withholding from deportation. The Judge found that Tobos-Alfonso had established membership in a particular social group in Cuba – that of homosexuals in Cuba. The Immigration and Naturalization Service (“INS”, USCIS’s predecessor) appealed, arguing that“socially deviated behavior, i.e. homosexual activity is not a basis for finding a social group within the contemplation of the [Immigration and Nationality] Act” and that to find that it was would be “tantamount to awarding discretionary relief to those involved in behavior that is not only socially deviant in nature, but in violation of the laws or regulations of the country as well.” See 20 I&N Dec. 819 at 822.  The Board of Immigration Appeals found the INS’s arguments unpersuasive and inadequate to reverse the Immigration Judge’s decision. Since this ruling, Matter of Toboso-Alfonso is routinely relied upon by practitioners to establish LGBTI applicants’ eligibility for asylum.

For Lesbian, Gay, Bi-Sexual, Transgender and Intersex (“LGBTI”) persons who are openly out, the one-year bar is not an insurmountable obstacle. However, it can pose a significant hurdle for LGBTI persons for whom the coming out process is delayed.

When a person comes from a country in which LGBTI behavior is criminalized and persecuted (take, for example, Jamaica, where anti-sodomy laws are still on the books, and gender non-conforming individuals are violently beaten and killed), whether to be openly out with one’s sexual orientation in his or her country of origin can be a matter of life and death.  Persons from such countries are often unable or reluctant to be openly out. It can be common for such persons to have heterosexual relationships, marry, and even have children. The fear of coming out can persist even after they have left their country of origin and have arrived in the United States. As such, it can take months and even years before they are able to come to individual terms with their sexual orientations, let alone be open about their sexual orientations with the public. In other words, an LGBTI person’s timeline for coming out does not always occur within the first year of arrival in the United States.

So how might the exceptions to the one-year bar help, if at all? The exceptions to the one-year bar fall under two main categories: (A) Changed Circumstances; and (B) Extraordinary Circumstances.

The Changed Circumstances exception applies if there are changed conditions in the applicant’s country of nationality, changes in applicable U.S. law, or changes in the applicant’s personal circumstances, such as recent political activism, or conversion from one religion to another.  The Extraordinary Circumstances exception applies if events or factors from an applicant’s life caused him or her to miss the filing deadline. The individual must not have intentionally created the extraordinary circumstance through his or her action or inaction in order to establish an exception to the one-year bar.

At first glance, it would seem that these exceptions would apply to a person who has recently come out – his or her circumstances have changed in a material way that affects his or her eligibility for asylum. However, there is the tricky issue of proof.

The legal standard is that the applicant must demonstrate to the satisfaction of the Attorney General or the Secretary of Homeland Security that there are changed circumstances that materially affect his or her eligibility for asylum, or extraordinary circumstances relating to the delay. This standard would appear to be highly discretionary, and part of the difficulty in interpreting this standard is that in different immigration law contexts it has been interpreted to mean different things. In one context, it has been interpreted as requiring the applicant to demonstrate the applicability of the exception through “credible evidence sufficiently persuasive to satisfy the Attorney General in the exercise of his reasonable judgment, considering the proof fairly and impartially.”  In other contexts, “to the satisfaction of” the Attorney General or Secretary of Homeland Security has required a burden more similar to the preponderance of the evidence standard (i.e. more likely than not).  What becomes clear across these varying evidentiary standards is that the more proof you have that an exception should apply, the better.

Ultimately, a person who has recently come out has a more difficult time establishing, to the satisfaction of the Attorney General or Secretary of Homeland Security, that an exception to the one-year bar should apply. As the process of coming out often happens in tiers, to different people at different times, a person who is out to friends may not be openly out with co-workers or family. There is also the problem of family members being unable to accept the applicant’s change in sexual identity. This makes gathering affidavits from credible sources difficult. As such, much more hinges on the asylum officer’s credibility determination.

To the USCIS’s credit, asylum officers are trained to be aware of these potential issues. See, e.g. Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims Training Module, available at: http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Asylum%20Native%20Documents%20and%20Static%20Files/RAIO-Training-March-2012.pdf. There are also psychologists with expertise in treating LGBTI persons whose opinions can be helpful in explaining why the coming out process is susceptible to delay. With greater awareness of these issues, practitioners and adjudicators can work together to alleviate the burden on LGBTI applicants to establish an exception to the one-year bar.

Ethics before international criminal courts

Michael G. Karnavas is an American trained lawyer.  He is licensed in Alaska and Massachusetts and is qualified to appear before the various international tribunals, including the International Criminal Court (ICC).   Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, andappellate advocacy.

Michael G. Karnavas is an American trained lawyer.  He is licensed in Alaska and Massachusetts and is qualified to appear before the various international tribunals, including the International Criminal Court (ICC).   Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, andappellate advocacy.

Hybrid Courts: A marriage of convenience

Imagine being on the football pitch. The stakes are high – it’s a championship game. You and your teammates have been preparing for this game, sharpening your skills, studying your opponent, developing your game plan, mastering the intricacies of the rules, doing everything possible to take advantage of every opportunity that may present itself and every weakness that your opponent may have. All is riding on this game, so you have thought of everything. You are ready. You are ready to control the ball, control your opponent, control the slightest openings. Ready to control it all. All except the referee. That’s the wildcard. The unknown, the unpredictable, the uncontrollable. The luck of the draw. If the referee knows the rules and applies the rules as they are intended, then you have only yourself to blame if the game is lost. But what if the referee does not follow the rules or applies them unevenly, or interprets them in a manner that is not in keeping with the spirit and tradition of the game? What if the referee decides to also play with the ball, handle it a bit, kick it around, pass it to your opponents, or, worse yet, lay in wait near your goalpost for the opportune moment to tap the ball into your net (even if it takes using his hands) and, having done so, smugly signals the goal?

But how could this be? How can a football match be played this way? What kind of refereeing is this, especially at a championship match? Of course this would never be tolerated, and the results would never be accepted. And rightly so.

Yet, this is what often seems to happen when defending a case before an international tribunal. Not only do the rules change as the game is being played, but some judges – who are for all intents and purposes referees during the trial proceedings – often see themselves as referees with a mandate to also play, especially during critical junctures in the questioning of witnesses. And when they do play, it usually is for the opposing side, the prosecution. How can this be? After all, put the word “international” before anything and one imagines that it is of a higher caliber, greater standard, superior quality. Perhaps this is how it should be, though not necessarily at the international tribunals. But why?

The first myth that needs to be dispelled is that the judges at the international / internationalized criminal tribunals are the cream of the crop. There are, no doubt, many brilliant career judges from all jurisdictions. There are others who may have had limited exposure to the actual practice of law in courts, but who grow into the job and also excel. But then there are judges who, no matter what their legal knowledge and judicial experience, simply fall short in understanding or in applying the rules of procedure and evidence as intended. It is not necessarily a matter of whether they have an inherent bias for one side or the other (though this does play a critical role), but rather their inability to unshackle themselves from their own legal traditions. These judges are so wedded to their own domestic procedures and legal traditions that they try to apply their own procedures through the rules rather than applying the rules as intended. And the more unfamiliar they are with the other legal traditions that are implicit in the rules, the more inflexible they seem to be in engaging in the intellectual pursuit necessary to understand the application of the rules as the drafters intended. Trial proceedings with these judges can be frustrating, as they go about applying the rules of procedure as if they were jamming a square peg into a round hole. Not exactly an ideal process if the purpose of a trial is to ensure fairness, and if the purpose of the tribunal is to afford all accused equal protection through uniform, consistent and predictable proceedings. The quality of an accused’s trial should not depend on the luck of the judicial draw.

The second myth, which feeds into the challenges attendant to the first myth, is that the proceedings at the international tribunals are exact, concise, and ideal because they are a composite of the best of the two predominant legal traditions: the common law / adversarial tradition and the civil law / inquisitorial tradition. One would think that by cherry-picking from these two legal proceedings and fusing them into one, commonly referred to as a “hybrid” procedure, this would produce an archetype. But if one were to look at this fusion of procedures with distinct and not necessarily compatible philosophical / jurisprudential convictions as an arranged marriage, albeit with the best of intentions, then one may appreciate the above-referenced square peg into a round hole analogy.

The third myth is that because international criminal procedure must deal with such unique circumstances (large cases with an inordinate amount of data and all sorts of associated challenges), not only are special procedures required, but in order to get it right there is a need for a constant tinkering of the rules. In other words, neither major legal system is adequate to provide a procedure that would render the type of justice required or expected – whatever that may be. It is assumed that the “unique” challenges faced in investigating, prosecuting and trying war crimes and crimes against humanity cases can be best handled by cobbling together rules of procedure and evidence by skimming the cream from the civil law and common law systems.

Therein, to a great extent, lies the rub. It is assumed that those doing the selecting and the cobbling actually appreciate and understand both legal systems: knowing why the systems function as they do, i.e., knowing the historical and philosophical basis for the various attributes and nuances, as opposed to superficially knowing the principles as reflected from a basic reading of the text. It also is assumed that they have sufficient practical experience with the rules of one of the legal systems so as to appreciate their actual application. It is one thing to be familiar with the rules of procedure and evidence from having studied them (or taught them), it is another to have a feel for them from having firsthand experience in applying them. The difference between knowing from reading and knowing from doing or applying is vast.

There is a feel or a sense of how the rules should function in practice, which can only be acquired through actual courtroom experience, as well as from an abiding appreciation of the legal systems from which the rules are inspired and/or amended. The lack of cohesion and foresight in cobbling rules and procedures from the common law and civil law systems can be seen in the frequency with which the rules of procedure and evidence are amended at the ad hoc international criminal tribunals, the inconsistent interpretation and application of these rules, and the conflicting and at times inharmonious reasoning given when applying or misapplying them (usually accompanied by the cure-all refrains: this is an international tribunal and we are professional judges).

But why is there such a haphazard approach to rulemaking at the international tribunals (setting aside the International Criminal Court (“ICC”), which has taken a different path, though even it is recalibrating its rules as it evolves)? Simple: Since Nuremberg, international criminal tribunals have been legislating by drafting their own rules of procedure and evidence. Because of their international / multi-national makeup, it was only reasonable that no one system would be in sole use. Understandably, judges, but also donor nations (through their judges), tend to promote their own legal tradition. Since neither of the two dominant legal systems can legitimately claim to be superior to the other, and since both have their strengths and weaknesses, it only seems reasonable to fuse the two. This fusion would not only serve as a compromise but also would accommodate any weaknesses that either system may have, especially in light of the challenges presented by the mega war crimes and crimes against humanity cases.

But, importantly, the two major legal traditions differ significantly in the ends they each aim to achieve. While both strive to achieve “justice”, only the civil law system attempts to find the objective material truth – getting as close to the truth as possible. The common law system places the burden on the prosecution to prove the charges beyond a reasonable doubt. This may be close to certainty, but there is no appreciable burden to ensure that the “objective material truth” is sought by the prosecution and uncovered or realized by the judges. Rather, justice is served by leaving it up to the trier of fact (usually the jury in domestic courts) to determine whether the prosecution, which initiated the charges and is backed by the enormous power and resources of state or local authorities, has proved all the elements of the charges beyond a reasonable doubt. Put differently, mere belief, however strong, is insufficient for the trier of fact to render a guilty verdict. The prosecution must prove the elements of the crimes with proof beyond a reasonable doubt: proof of such a convincing nature that one would be willing to act and rely on it without hesitation in one’s important affairs.

This fundamental difference in the two systems is the crux of the discontent in this arranged marriage of civil law and common law. Judges in the civil law system are seeking the truth; judges in the common law system are determining whether the prosecution proved each element of each charge beyond a reasonable doubt.

Because of this truth-seeking mission, judges in the civil law system are very active in the questioning of witnesses. They carry a burden, if you will, of having to be persuaded that they have come as close to the truth as possible. This burden cannot simply be met by leaving the questioning of the witnesses to the prosecution and defence. If civil law judges think an accused is guilty, then instinctively they tend to pursue all avenues in questioning and will consider any type of evidence, within the very broad contours of what is known as the free evaluation of evidence, in confirming this belief and reaching a guilty verdict.

Conversely, common law judges tend to behave similarly to referees during the trial. Their main function is to ensure that the parties play by the rules and that the proceedings are conducted in an orderly fashion. The judges are not after the truth, though through the confrontation process by the parties (questioning of witnesses) the truth – or the closest thing to it – should (hopefully) emerge. What is important is that the party who brought the charges, the prosecution, proves the charges. The sole burden of proving the charges beyond a reasonable doubt, and of persuading the judges that the proof rises to that level, rests on the prosecution. It is not up to the judges to act for either party or to independently pursue a line of questioning or call a witness in order to be satisfied of the outcome. The judges (unless a jury is involved) are merely expected to objectively assess the evidence.

There are, of course, lots of other differences and nuances in the role of the judges, but, principally, this distinction is the most challenging. It strikes at the very core of a judge’s DNA. Once a judge is sworn, he or she is independent. And since every judge is a slave of his or her own legal system, it is often very hard for a judge to set aside his or her core values of how justice is to be achieved and follow a set of procedures which may be antithetical. Even when there is a will to do so, it can be a struggle to think and act counter-intuitively; a dilemma civil law judges are more likely to face when the rules of procedure call for proof beyond a reasonable doubt.

The common law judges seem to adjust more easily at the international criminal tribunals. Unquestionably they are unburdened by the absence of the rigid rules of evidence found in their own legal traditions. They are also unconstrained in asking questions, especially if a line of questioning by the parties has left an issue or topic unclear or unfinished. Because they inherently appreciate the prosecution’s burden, they generally tend to tread lightly, taking care not to act as an advocate for any of the parties. This is not necessarily always the case. Some common law judges are pro-prosecution and see it as their mission to convict the accused. The where there is smoke, there is fire syndrome of pre-judging and assessing the evidence to affirm a confirmation bias is occasionally suffered by some judges who were career prosecutors before donning their judicial robes.

The civil law judges, on the other hand, because of their moral and legal convictions, do seem to be more challenged when it comes to the inviolable principle of the presumption of innocence. Some see it as a mere legal fiction, a pretense (a bit like the pro-prosecution common law judge). After all, a prosecutor (an organ of the state, or of the United Nations (“UN”), or whichever entity established the tribunal) has indicted this accused. Prosecutors in the civil law tradition are part of the magistrate family. They are trained to be fair and to search for exculpatory evidence with the same zeal they search for incriminating evidence. They too are supposed to be searching for the truth. No prosecutor would indict an accused if he or she were not guilty, so how can a judge now pretend by assuming the accused to be innocent? Fair enough, but at the international tribunals, the prosecutors are from different legal traditions, as are the investigators who interview witnesses and gather the evidence. Prosecutors and investigators from the common law system do not have as part of their DNA the imperative to search for exculpatory evidence. If they stumble over it they may collect it, but even then it is likely to be buried in an avalanche of evidence. Once a prosecutor has a particular suspect or accused in the crosshairs, the notion of affirmatively looking for exonerating or mitigating evidence is irreconcilable with his or her concept of mission. It is delusional to think otherwise.

This is significant because the civil law judges tend to presume – at least so it seems – that the prosecutors at the international tribunals are conducting themselves in the same fashion as prosecutors normally do in the civil law national environment. In other words, unwarranted deference is extended to the prosecution out of instinct and belief that the prosecutors and investigators also are searching for the truth.

The different approaches or missions of the common law judges and civil law judges often are played out in the courtroom during the questioning of the witnesses. The common law judges, even if their own national courts permit them to interject questions while the parties are questioning witnesses, tend to be reserved and circumspect. This may be because of their inherent training and conviction that it is not within their remit to assist either party, especially the prosecution. Their questions tend to relate to matters of clarification, completeness or reconciliation of contradictory testimony. This conservative approach is appropriate, since judges (or, in reality, their legal officers) will be making findings of facts at the end of the proceedings. Loose ends, a confusing record, or semi-developed lines of questioning to critical aspects of the case are of no assistance to the triers of fact, making the process of deliberation and the drafting of the judgement even more challenging than it is already. The judges are there to ensure that a clear and complete record is made, so the facts can fairly be assessed and so any errors they may commit in rendering the judgement can be readily scrutinized on appeal.

The civil law judges, because of their inherent training and conviction that they are to ensure that they get as close to the truth as possible, believe that they are best poised to lead the questioning. It matters not whether it is direct or cross-examination. Intellectually, many of them may grasp that the proceedings at the international tribunals are party-driven in that the parties have their respective cases and thus are the captains of their own vessels. But, when it comes to the actual practice during court proceedings, they are incapable of exercising the requisite self-restraint.

This is where judges of any denomination, but especially from the civil law system, risk becoming a party, and worse yet, knowingly or unknowingly, acting on behalf of a party by being overly intrusive in the questioning of witnesses. The judge / referee becomes an active player, assisting one side in particular (usually the prosecution, since the accused must be guilty of something or the prosecution would not have indicted him or her, and our fellow judges would not have confirmed the indictment) to ensure that there is a sufficient record for a presumed result. Putting it bluntly, these mission-driven / truth-seeking judges interpret and apply the rules of procedure to suit their own convictions, as if they were serving on their national courts as opposed to a hybrid international tribunal. Thus acting as the midwife in assisting the prosecution with delivering its case and a conviction.

One major drawback these judges face that should not be underestimated is that, at most of these hybrid international tribunals, they do not have the dossier (case file), as they would have before their own national courts. The dossier in the civil law system has the universe of evidence in the case available to all and is the file from which the civil law judges, after immersing themselves in it, will select and question the witnesses. There is no dossier to speak of at the hybrid international courts, except at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) – a national court assisted by internationals, thus characterized as “internationalized” – which is civil law-based and which also has morphed into a hybrid court with its own unique quirks and shortcomings. In other words, the civil law judges do not know (certainly not before the trial proceedings) the material upon which each side will rely in developing its respective case. Emphasis should be on the “case” because in adversarial or hybrid proceedings, each party has a case that it will put on. Though the defence is not obliged to put on a case, effectively, through the confrontation of prosecution witnesses, the defence is putting on its case, even if it opts not to produce witnesses to give evidence for the defence.

In the civil law system, the parties do not have a case to speak of, as they do in the adversarial / party-driven system. Since the judges need to satisfy themselves that they have come as close to the truth as possible, after analyzing the case file and having determined which witnesses are to give viva voce evidence, the judges initiate an exhaustive questioning of the witnesses. Little, in theory, is left for the prosecution or the defence to question (at least judges like to think so), presumably because the judges are not attempting to score points in furtherance of a subjective agenda, i.e., to win, which, unquestionably, is the agenda of the prosecution (irrespective of its avowed mission to seek truth and justice) and the defence at trial – truth be damned.

Herein lies the problem. Without having the dossier, because one may not exist, and not having analyzed the dossier, and setting aside the lack of a truth-seeking burden, how can a judge meaningfully engage in exhaustive questioning of the witnesses? It is beyond arrogant for judges in these sorts of proceedings at hybrid tribunals to presume that they are best qualified to question the witnesses. Both the prosecution and the defence have, in addition to their own theories of the case (i.e., why the evidence at the end of the trial supports a conviction or an acquittal), their own strategies and tactics on how they will establish their theories of the case during the proceedings. Usually, there are significant unknowns to both parties as to what the other side has up its proverbial sleeve, though for the most part neither side is likely to produce some earth-shattering surprise or pull a rabbit out of the hat. The defence is not compelled to turn over all of the fruits of its investigation and, when it does, it will turn over only what it expects to use during the presentation of its case after having heard the prosecution’s case-in-chief. As such, it is not always possible for the judges to discern the purpose of a line of questioning, the significance of which may become relevant weeks or months later after other evidence is adduced.

This may be unseemly for some civil law judges who like to be in control and who are presumptuous enough to assume to know how a party should be better pursuing its case. This may also explain their interventionist approach; injecting themselves and sometimes even taking over the questioning of segments of a witness’s testimony, often causing disarray to a party’s strategically designed direct or cross-examination. And if this were not enough, by doing so after placing rather inflexible and often unrealistic time restrictions on the questioning of the witnesses, such interventions can be disruptive and prejudicial. Not much can be done when this happens. Pointing out to these judges that such interventions are contrary to the adopted procedure of the tribunal is unlikely to yield much profit, since the judges point to the rules of procedure, which quite clearly and unrestrictedly grant the judges the right to ask questions – however one-sided, intrusive, disruptive, inappropriate, or inane they may be.

This is where one of the other problems lies in this arranged marriage of two incompatible legal systems. The hybrid procedures call for the prosecution to bear the burden of proof (beyond a reasonable doubt), while at the same time providing for judges to ask questions of witnesses at any point in time, and even to call their own witnesses. When one factors in the stated objectives of these tribunals as set out in their founding documents, including the UN Security Council Resolutions establishing the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) (e.g., ending violations of international humanitarian law, bringing justice, and restoring and maintaining peace), then one can see how civil law judges may interpret the spirit, if not the letter of, the rules of procedure, to empower them to search for or try to get as close to the truth as possible. And when you consider that all judges (at least thus far) appointed to these tribunals as “professional judges” (many of whom never practiced law or set foot in a courtroom) are simply sworn in without previously having to undergo even a rudimentary orientation, it is no wonder that their “independence” is the first thing they raise in support of their approach in understanding and applying the rules of procedure. I do as I wish because I am independent and therefore I can.

It is difficult to reconcile these inherent differences in approaches to trying and judging cases when the rules of procedure are a composite of incompatible provisions borrowed from two very distinct legal systems, mixed with other “innovative” rules inspired by the judges themselves, usually for the sake of efficiency, and all too often at the expense of fairness. One has to wonder whether there was ever an actual debate on this very issue, i.e., how to reconcile the prosecution’s burden of proving its case with the judges’ right to intervene and not only ask questions but even call witnesses that inherently aid the prosecution in meeting its burden? Is it possible to articulate the parameters or draw the contours of the judges’ questions and witness production so as not to provide substantive assistance to either party? Can one realistically restrict a judge from asking questions and calling witnesses for the purpose of getting close to the truth, which innately benefits one of the parties, but especially the prosecution?

It takes discipline, self-restraint, diligence and finesse for judges not to get carried away in an interrogation mode in searching for the truth and not to be committed to a viewpoint when exercising their rights to pose questions to and call witnesses. Since there are no guidelines, benchbooks or commentaries on the rules of procedure, it is up to each judge to decide where he or she will draw the line in questioning and calling witnesses. This last point is remarkable and worth a few words on how some of the shortcomings raised could be lessened.

Guidelines. Judges get sworn in, handed the statute, the rules of the tribunal, and their silk robes. They are given a tour of the courtroom and a short orientation on how to work the microphone and Livenote (computerized tracking of the transcript in real time), and that is the extent of any guidance given to them on the procedures of the tribunal. If they are lucky (at least for the parties), they will sit next to a presiding judge who has been around a bit and hopefully is applying the rules as intended (as opposed to through the prism of his or her own national system). Guidelines would at least provide some appreciation of the above-mentioned issues to those judges who may be unfamiliar with the adopted procedure of the tribunal. The parties also could invoke the guidelines whenever a judge drifts beyond the acceptable contours of the procedures.

Benchbooks. Just like a good cookbook provides a precise step-by-step approach to cooking even the most complicated of dishes, a good benchbook provides a uniform, predictable, and precise step-by-step approach on how to conduct proceedings. Take, for example, the simple matter of evidentiary objections during the proceedings. One party objects, the other parties have a right to respond, the objecting party may be given the opportunity to reply, and then the judges (bench) are to make a ruling – a ruling that provides an articulable relief. Simple. Yet some judges (usually from the civil law system), rather than make a ruling, remark that the objection is “noted”. Of course it is noted. It is on the record regardless of whether the judge notes that it is noted. This gratuitous expression is meaningless. The judge needs to make a ruling either sustaining the objection or overruling it. Preferably there should be some reasoning with the ruling. Why? Because it may be necessary to have a record for appellate review. And were a party to ask for a reasoned ruling or clarification of a ruling, the judge should not be so affronted as to suggest that the party pressing for the ruling or clarification is insinuating that he or she is threatening to appeal. Yet, this occasionally occurs. A benchbook would not necessarily nudge a judge into making a ruling on evidentiary objections, but it would at least clue the judge in to what is expected of him or her.

Commentaries. The judges during plenary sessions amend the rules. There usually are rules committees to debate amendments, consider position papers, and make recommendations to the judges to discuss and adopt during plenary sessions. Each tribunal has its own approach, some more transparent than others. What is not provided after the adoption of the rules or any amendments to them is a commentary providing the legislative history, if you will, of the rules and amendments. There is nothing from which the judges or the parties could later discern the purpose of the rule or amendment. Knowing the intended purpose (spirit) of the rule or amendments would be helpful in guiding the application of the rule. This would foster uniformity in the application of the rules where there is no case law interpreting the rules or jurisprudence from another tribunal that could give guidance by analogy. While there may be some merit in not having all debates on an amendment made public for fear that it might stifle some from speaking up freely (a reason not acceptable for our national legislators, save for sensitive national security interests) it would be beneficial to provide a brief commentary or practice note, and / or to make available all relevant position papers along with relevant excerpts of the minutes of the meetings in which the rule or amendment was discussed.

Can love and bliss ever be in the air for these unhappy arranged marriages of these two legal systems? Perhaps.

The problem is that unless and until there is a serious discussion on what has gone wrong in the fusing of the common law and civil law procedures, ad hoc hybrid tribunals will continue to emerge as the cure-all for dealing with large war crimes and crimes against humanity cases that fall outside the ICC jurisdiction. Mind you, the ICC also has adopted a hybrid system, and it too is very far from reanalyzing the expected results of the drafters. And the amending goes on!

What really is required is self-awareness and self-criticism by those who gallivant around conceptualizing these ad hoc hybrid tribunals, most of whom have very little real experience in the actual practice of criminal law. And, of course, there are these systemic problems, as noted, of judges disparately applying the adopted procedures, and often not applying them as intended. To some extent, the same can be said of prosecutors, defence lawyers, and civil party / victims’ lawyers, but it is not they who draft the procedures and, assuredly, it is not they who control the proceedings. Normally these parties, with the exception of the prosecution, are generally excluded during the drafting of the statutes of these ad hoc hybrid tribunals. This is obviously wrong, especially when considering these lawyers tend to have more courtroom and appellate experience than most judges, albeit primarily in their national courts. Meaningfully including the party lawyers in the drafting of the statute and rules of procedure from the outset may be a good start, but is it enough?

Perhaps fewer problems would emerge in the applications of the procedures were the courts to opt for one of the two legal systems as opposed to fusing the two.

As imperfect as the common law and civil law may be, they at least each have a rich history of practice and jurisprudence established over centuries. Easier to appreciate and apply well established proceedings than to uniformly follow improvisational adjustments cobbled together and supposedly recalibrated to an ad hoc hybrid system with little or no prior track record, no legislative history, and no homogeneous approach to interpretation and application of the rules of procedure. Some adjustments will need to be made. Best to keep it simple: look from within the legal system adopted.

Mega cases have and are being handled by both legal systems in national courts. How have they managed thus far without going hybrid? This is a question worth pondering.