It hasn’t been a pleasant response — so why do I do it?
There are many answers. The first is the one that defense attorneys always use, which is no less true for that fact: every defendant, even one accused of committing horrific international crimes, needs a good defense. Indeed, the more horrific the accusations, the greater that need. Everyone involved in the criminal justice system knows that the presumption of innocence is an illusion — defendants always begin a trial with the jurors and/or judge suspecting, if not actually believing, that they are guilty. And that is particularly true of defendants accused of serious international crimes like genocide. I can’t tell you how many of my friends, lawyers and otherwise, educated and cosmopolitan all, assume that an international tribunal would never prosecute a genuinely innocent person. Indeed, most assume that defendants who are acquitted by an international tribunal are still guilty. It is thus imperative that a defendant accused of serious international crimes have at least one person (if not more) who is willing to advocate on his behalf.
The post is an interesting reflection on the status of international criminal law, and I think goes a long way to diagnosing some of what is wrong with it. Much is made of the analogy (or lack thereof) between international and municipal law: this is one area where the analogy breaks down in a severe way. International criminal law is a weak institution, that tends to go after only the lowest-level offenders (who are least able to protect themselves) and the highest. The natural assumption is that if one of those high-level people is brought in, they must be guilty--if not of specifically what they are charged with, then something equally bad for which we should give some penalty. Why do we make that assumption? Because everybody knows bad things happened in Bosnia, or the Sudan, and so Karadzic or Bashir must be guily in some sense. But if that 'some sense' is not a strict legal sense, or if they're not guilty at all, there is no institutional mechanism to rectify this.
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