Evolving Equality: The Development of the International Defense Bar
Newton, Michael A.
Defense counsel in international criminal proceedings face difficult challenges that are intrinsic to the modern system of internationalized accountability; yet their professionalism and performance represent perhaps the most determinative dimension for evaluating the overall fairness of what the world terms “justice” for grievous atrocities. Defense teams labor against the tides of public opinion and the deeply felt pain of the victims of mass atrocities. Abandonment of appropriate defense efforts, whether the result of professional fecklessness or personal pressures, would transform international criminal law into an organized sham aimed at achieving a shadow of justice while undermining the rights of the individuals unlucky enough to face charges against the combined weight of political and judicial will. The growth of a modern field of international criminal justice is necessarily paralleled by the development of a mature Defense Bar that works to ensure that every defendant’s culpability or innocence is grounded in the soil of individual responsibility rather than irrational prejudice or irresponsible collective guilt. The developmental arc of the international defense bar in its organizational and systematic context has, however, been surprisingly underexplored. This article will discuss the jurisprudence associated with the basic precept of equality of arms between the prosecution and defense. Highlighting the key challenges encountered by the defense that impair perfect equality of arms, this article will describe the organizational responses that have facilitated the maturation of the International Defense Bar. This article will document the empirical indications supporting the assertion that defendants receive assistance from a mature international defense bar in litigating an extensive range of trial issues. From its genesis in the wake of World War II, the modern Defense Bar is indeed an effective entity, despite its imperfections and occasional inadequacies. The holistic system of international criminal justice provides rough procedural parity to the defense, despite the recurring ethical dilemmas highlighted herein. This article will conclude, perhaps controversially, that while a perfect equality of arms is a structural impossibility in the modern system of international justice, the modern defense bar has nevertheless evolved to provide its functional equivalent.