Please tell us about your background as a prosecutor
First of all, thanks for the invitation to contribute to your newsletter, and to the discussions being had in your forum. Although I have spent several years working as a domestic and international prosecutor, I probably don’t have the typical career profile of a prosecutor and I don’t exactly consider myself a “prosecutor” per se. I worked for about five years with the federal Director of Public Prosecutions office in Brisbane and Melbourne, Australia, which is a fairly specialised area of Australian criminal law (crimes ranging from various types of federal fraud, to immigration and customs offences, as well as terrorism offences and crimes under legislation which domestically implements the Rome Statute).
I then went to the International Criminal Tribunal for Rwanda (ICTR), where I worked for several years in Chambers and then in the Appeals Division of the Office of the Prosecutor. During these six years, I worked in various capacities on crimes arising from the 1994 Rwandan genocide.
Since that specifically in-court experience (domestically and internationally), I stepped outside of the courtroom to the role of legal watchdog. Based in Phnom Penh, I monitored the trials of former Khmer Rouge officials before the Extraordinary Chambers in the Courts of Cambodia; and then I moved to The Hague where I engaged in a similar role in relation to the International Criminal Court.
All of this international experience spanned about a decade when, in late 2014, I returned to Australia. Since then, I have been teaching criminal law and evidence law at Bond University on the Gold Coast, and doing some international consultancy work.
Tell us about your experience prosecuting core international crimes – war crimes, crimes against humanity and genocide
The first international criminal law cases I worked on were two ‘Government’ cases at the ICTR, in Arusha, Tanzania. This was during the period from early 2005 to late 2010. These were large multi-accused cases, one involving four former government ministers and the other involving three additional former political leaders. They involved lengthy indictments alleging genocide, war crimes and crimes against humanity, and were based on various theories of joint liability of those in leadership positions for crimes committed by co-conspirators and subordinates. In one of these cases, all four accused were ultimately acquitted. In the other case, two were convicted, the third having died during the trial. When I moved to prosecution appeals, I worked on a number of single accused cases.
Probably the most significant legal issue I looked at during this period involved the definition of the crime of direct and public incitement to commit genocide. In the Rwandan context, this issue was especially significant given the ways in which Rwanda’s oral tradition had been used to facilitate the genocide. Ultimately, the Appeals Chamber didn’t share our view which I personally think was a missed opportunity for the law to reflect the reality of dissemination of information in the context of societies with a strong oral tradition.
As I moved outside of these courts, to Phnom Penh, my activities were aimed at lobbying those in positions of power for better quality justice. In Cambodia at the ECCC, I was lobbying for thorough investigations in cases which the Cambodian government—in particular, the Prime Minister—had very publicly opposed. This situation still prevails in Cambodia. It was interesting to me, by the time I came to The Hague, to see the ICC going through a lot of the same political issues that had presented themselves at the ECCC and the ICTR—namely, will any of these jurisdictions ever be able to extend their reach to political incumbents (and, indeed, is it desirable for international criminal justice to do so?).
What drew you to work in this field?
Good question. As naïve and idealistic as it might sound: a deep belief in social justice. It was not actually a burning desire to be involved in the prosecution of international crimes that led me to the field. Rather it was a (perhaps somewhat naïve) desire to work in an area of law that contributed to the betterment of the human condition. The extent to which international criminal justice actually does this is something which is very much open to debate, and it is a conversation which must continue to be had in a transparent and frank manner.
Why have you moved from working as a practitioner to teaching/lecturing domestically?
Initially, it was really my father’s very sudden death—in 2014—that stopped me in my tracks in Australia, though I had been yearning for “home” for some time. It’s important for me to mention this because I think practitioners in the international criminal justice field, or even more widely in the human rights or humanitarian fields, don’t speak very openly about the personal cost of the work they choose to do. In one sense, for many of us who have ventured into these fields, it’s commonly a reflection of the privileged backgrounds we enjoy that we have access to these jobs. Nonetheless, there is a price to pay for the opportunity to feel that you are contributing to a discussion about global issues. During my decade overseas, I very much witnessed the toll the work took on my colleagues. I myself was not immune. I hope that conversations around this are happening more routinely these days, especially with the exposure of the fact that all of us who are, or have been, engaged in what is commonly known as “good work” are also fallible. I’m of course talking here about evidence that some of those working for the UN, and various human rights and charitable organisations, are engaging or have engaged in various forms of abuse and exploitation. Those working in these fields need to make themselves accountable to the same standards they very publicly demand of others.
What does international criminal justice mean to you?
If you’re focussing on the “justice” part of this (in the context of atrocity crime):
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That those at the highest echelons of political power face the same force of the law as those who no longer wield any;
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Truth;
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A process that contributes in some way to the broader goals of non-recurrence within the affected society, as well as more broadly within our global community; and
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Credibility and legitimacy of both institution and process.
International criminal law is constantly developing – what are some of the major challenges prosecutors in this field currently face?
At the risk of sounding overly binary in my thinking, in my work in international criminal justice I came across prosecutors who genuinely believed what they were doing was right, no matter what, while I also met those who constantly questioned the value of what they were doing. Of course, many were probably somewhere in between these two extremes. On that spectrum, I personally was naturally somewhere towards the latter extreme. It’s therefore from this vantage point that I see one of the major challenges facing prosecutors in this field as that their work is inherently political: the crimes are inherently political, and the systems within which they operate are inherently political. In this context, and in order for the fledgling system to develop its credibility and legitimacy, those within it (including prosecutors, if not especially prosecutors) must challenge the political status quo while recognising its limitations. I recognise that this is a very tough balance to strike.
Tell us about one of your most memorable or inspiring experiences in this field?
I would like to use this space to mention the incredible people that I worked with over the decade that I was in this field. Of course, I am talking about defence lawyers, prosecutors, and judges. But I am also talking about (possibly even more so) those working with and for NGOs; the activists putting themselves on the line, every day. In particular, I was so grateful at various points for the journalists committed to exposing the truth about what goes on in and around our field. Every now and then I also came across some hard-core diplomats (not a contradiction in terms, as it turns out) attempting to push their governments from within.
What advice would you give to fellow prosecutors who are considering working in this area?
Only ones from my own personal experience. At 29 years old, I went into this field thinking I had something to offer the world of international criminal justice. With the benefit of hindsight, I wish I’d had more humility about what I actually had to offer. I only had a lot to learn. I also wish that someone in a position of leadership in those early days had told me it was okay to be deeply affected by atrocity crime, that this was in fact, human, and had offered me some strategies for coping with it. With these two caveats in mind, I would say: go for it, but you must keep pushing this system and the political institutions around it from within.