Explaining inhumanity: the use of crime-definition experts at international criminal courts.

• Author: Davidson, Caroline
• Position: I. Introduction through III. The Emerging Crime-Definition Expert C. SCSL, p. 359-391

ABSTRACT

International criminal courts must not only decide the guilt or innocence of defendants in immensely serious cases, but also make good law in the process. To help them do so, these courts have turned to experts. This Article identifies a type of expert witness that, thus far, has escaped scholarly attention: the crime-definition expert. Crime-definition experts have provided expert reports and testimony to international criminal courts on the meaning of the very crimes with which defendants are charged, including genocide, forced marriage, and recruitment and use of child soldiers. This Article critically evaluates the risks associated with using crime-definition experts in international criminal trials. Ultimately, it concludes that crime-definition experts may help tribunals achieve the various aims of international criminal justice, but have the potential to impair defendants' rights and impede the tribunals' ability to advance expressive and restorative justice aims. It advocates judicious use, if any, of these experts and proposes measures to reap the most benefit from crime-definition experts while minimizing the risks inherent in their use.

TABLE OF CONTENTS I. INTRODUCTION II. THE TENSION BETWEEN JURA NOVIT CURIA, NULLUM CRIMEN SINE LEGE, AND INTERNATIONAL CRIMINAL LAW III. THE EMERGING CRIME-DEFINITION EXPERT A. ICTY 1. Rules on Experts 2. Use of Crime-Definition Experts B. ICTR 1. Rules on Experts 2. Use of Crime-Definition Experts C. SCSL 1. Rules on Experts 2. Use of Crime-Definition Expert D. ICC 1. Rules on Experts 2. Use of Crime-Definition Experts E. Why the Turn to Crime-Definition Experts? IV. TOWARD A BETTER USE OF CRIME-DEFINITION EXPERTS IN INTERNATIONAL LAW A. THE ADVANTAGES OF CRIME-DEFINITION EXPERTS B. Disadvantages of Crime-Definition Experts C. Crime-Definition Experts Versus Amici Curiae D. Proposal for Reform V. CONCLUSION I. INTRODUCTION

International criminal tribunals have all the usual forensic experts one would expect. They use experts on DNA, ballistics, and handwriting. (1) They also use some idiosyncratic experts, such as experts in the history and context of the conflict in which the crimes occurred. (2) This Article identifies a category of expert witness that has thus far escaped scholarly attention: the crime-definition expert. Crime-definition experts have given testimony and submitted expert reports to international criminal courts on the concepts of genocide, forced marriage, and conscription--and enlistment--of child soldiers in prosecutions of these crimes. This Article contends that the use of these experts offers a number of benefits for courts breaking new and unfamiliar ground, seeking legitimacy in the eyes of various publics, including that of the affected region, and attempting to send a message of condemnation of the world's worst crimes. However, using crime-definition experts comes at a cost, including potential unfairness to defendants, the risk of oversimplifying complex issues, and impeding the tribunal's ability to advance expressive and restorative justice aims. If courts, such as the International Criminal Court (ICC), persist in relying on them, they should take measures to reduce the risk associated with these potentially influential witnesses.

Crime-definition experts have different areas of purported expertise. Sometimes the expertise that the expert brings to the table is legal. Sometimes it is a more abstract understanding of the crime from the perspective of a social science, such as sociology or anthropology. Other times, it is knowledge gained from experience with the crime through aid or advocacy work in the particular region.

This Article traces the use of crime-definition experts at war crimes tribunals in emerging areas of law and shows that, recently, courts have embraced the opinions of these experts to a remarkable extent. After considering possible reasons for this turn to crime-definition experts, the Article reflects on whether the use of such expert testimony enhances or impedes the tribunals' abilities to achieve the aims that they were established or seek to pursue--namely, retribution, deterrence, creating a historical record, peace and reconciliation, expressive justice, and restorative justice.

Until recently, the use of expert testimony at international tribunals has received strikingly little attention from scholars. (3) However, in the last few years, commentators have begun looking at the role of historical and social science experts in international criminal trials. (4) Some commentary has suggested international tribunals' need of expert assistance in writing a credible historical account of the events at issue. (5) Other commentary takes a less favorable view of experts, in particular, the prosecution's use of experts as advisors, and has raised epistemic as well as practical concerns, particularly related to equality of arms. (6)

This Article examines international criminal courts' use of experts who testify about the contours and elements of the very crimes with which the defendant stands charged. Part I sets the stage for these crime-definition experts by discussing the tensions among the novelty of international crimes, the tenets of jura novit curia (the judge knows the law), and nullum crimen sine lege (no crime without law). Part II turns to the international and internationalized tribunals, and after describing rules governing expert testimony, it details the use of crime-definition experts in trials at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the International Criminal Court (ICC). (7) In recent cases, judges have shown themselves amenable to crime-definition expert guidance, especially when faced with new, or relatively new, crimes.

Part III assesses the normative implications of this expert testimony by evaluating the capacity of crime-definition expert testimony to advance the various aims of international criminal justice. Recognizing that crime-definition experts, though problematic, may be better than the alternatives of judicial ignorance, judges' educating themselves off the record, or even amici curiae, it suggests measures to assuage the potential problems associated with crime-definition experts. In particular, it advocates fostering a culture in which defendants feel free to challenge and vigorously question crime-definition experts and in which courts scrutinize the reliability and potential biases of these experts--including those selected by the trial chamber. Defendants should be permitted and provided the funds to offer crime-definition experts of their own. Courts should police more carefully whether an expert has strayed beyond his or her area of expertise or matters of relevance to the case. Finally, transparency is essential. Whenever possible, crime-definition experts should testify openly and their reports be public, and courts should make clear where they rely on experts and where they do not.

2. THE TENSION BETWEEN JURA NOVIT CURIA, NULLUM CRIMEN SINE LEGE, AND INTERNATIONAL CRIMINAL LAW

   Judges are supposed to know, or at least be able to discover, the law. In civil law jurisdictions, this notion of the judge knowing the law goes under the name jura novit curia. That particular term is not used in common-law jurisdictions, (8) but the sentiment exists in the expectation that common-law judges have tools to comprehend the legal arguments of the parties and say what the law is. (9) This maxim has its limits. Whether in common-law or civil-law systems, judges often are not expected to know foreign law; consequently, foreign law is often a proper subject for legal expert testimony. (10) Just as their domestic counterparts are to know domestic law, international judges are supposed to know international law, but just what falls under the international law umbrella is unclear. (11) International criminal law and courts may put the maxim of jura novit curia even further to the test. For a variety of reasons, this all-encompassing knowledge of the law may be especially difficult for international criminal judges to attain. (12) This section explores why.

   International criminal law is an especially difficult area for any judge to know and its borders are hard to define. Concededly, international criminal law is better defined than it was twenty years ago due to the definitions set out in the International Criminal Court's (ICC) Rome Statute (13) and Elements of Crimes, (14) as well as the decisions issued by the ad hoc tribunals. (15) Still, a great deal of uncertainty remains. This uncertainty has a variety of causes.

   First, international criminal law represents a blend of different areas of law, including international humanitarian law (the law of war), international human rights law, and general principles of criminal law. The ICC statute, for example, directs judges to apply the law of the ICC--statute, rules, Elements of Crimes--but also, "where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict"; and,

   [f]ailing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. (16) In sum, international criminal judges may need to consider a wide variety of sources of international law and even domestic law to reach a decision.

   Further, international criminal judges have faced, and will continue to face, crimes never before prosecuted in an international, or often even a...