Reasonable Doubts

In 2000, inspired by a colleague who’d done the same, Jacobs put his name forward for the roster of defence lawyers for the tribunal set up after the 1994 bloodbath in the tiny African country of Rwanda. He was almost fifty and ready to put his Canadian work on hold in order to travel back and forth to Arusha, Tanzania, where the tribunal was headquartered. He was eager to be connected to the new, rapidly globalizing world. Soon he had two clients, a beer importer named George Rutaganda, who was appealing his genocide conviction, and Gerard Ntakirutimana, a young doctor who had lost one of his American lawyers to illness. Jacobs plunged into their cases.

Thirty months later, after countless hours of work and over a dozen trips to Africa, his zeal has faded. He has lost both his appeal and the trial, though he is now appealing the latter. In his office in Toronto, he pushes heavy boxes of files and affidavits out of the way, sets aside luggage still unpacked from a recent trip, and sighs with a kind of frustration that is half bewilderment and half exasperated fury. Not only has he lost his cases, he’s endured, he complains, practices and methods contrary to everything he’d come to take for granted and hold dear in Canada.

It’s noteworthy that Jacobs was acting as a defence attorney. University of Ottawa professor David Paciocco, who also worked on the Rutaganda appeal, argues that defence lawyers have a particular burden to bear. Their job is “to ensure that their clients are not wrongfully convicted and that the system is fair to the accused.” This, he says, makes them acutely aware of the problems in any system.

Paciocco’s boyish demeanour, when we meet for lunch in an Ottawa café, contrasts with his considerable gravitas in the field of legal writing and thinking. He has been cited in at least nineteen Supreme Court of Canada decisions and enjoys a high reputation for his 1999 book, Getting Away With Murder, which argues that the justice system needs to be more responsive to issues that most anger the public.

Through his interest in criminal law, Paciocco became intrigued by international trials. During a sabbatical year in 2001, he considered applying for a position as a prosecutor at the Yugoslav Tribunal in The Hague. Instead, he accepted an invitation from Jacobs and ended up at the Tribunal for Rwanda, working for the defence.

The move altered his views of international justice. “I believe I went with an open mind, so I was surprised to come to at least the provisional conclusions I’ve come to,” he says. “It was not the perspective I expected. I was able to see things I wouldn’t have seen as a prosecutor.”

In a paper delivered earlier this year to the Canadian Institute for the Administration of Justice, Paciocco acknowledged the conventional wis-dom (“There is simply no basis for chal-lenging the idea of international criminal law,” he wrote, “any more than there is a basis for challenging the ideas of peace, co-operation, compassion and justice”), but then he brought his personal dismay forward: “My experience has left me uncertain as to whether international criminal justice, as opposed to international criminal law, is even possible.”

As the ICC rolls inexorably into being, two camps have formed. On one side are the optimists, firm in their belief that the very creation of such a court is long overdue and that whatever flaws it might have are worth living with. On the other side are the skeptics who see the devil in the details. If the court is established at the expense of hard-won principles of law and justice, they say, then the cost will have been too high.

David Paciocco is one of the pessimists. His criticism falls into several categories, three of which stand out. These are: concerns about the rights of defendants in such a highly charged environment; politics intruding on the law; and concerns about how the world’s two dominant legal and judicial systems can possibly find a way to harmonize in the international environment.

Although the ICC is supposed to replace the need for specific inter-national criminal tribunals, it is also their child—possessing, if you like, their genetic code. So those who have criticisms about the current tribunals wonder how the new court will rectify what they see as these institutions’ short-comings. Many fear it won’t.