Below is the introduction and first section of a new paper published in the Fordham International Law Journal I have authored along with my respected colleague and friend Geert-Jan Alexander Knoops, whose distinguished career both as a Professor of International Criminal Law (Utrecht University) and as a defense counsel in international criminal courts for Yugoslavia, Rwanda, and Sierra Leone is unparalleled. He also was recently involved as an expert witness in the historic Hamdan v. Rumsfeld Case at Guantanamo Bay. Click here to download the complete PDF with footnotes
THE DUALITY OF STATE COOPERATION WITHIN INTERNATIONAL AND NATIONAL CRIMINAL CASES
By Geert-Jan Alexander Knoops & Robert R. Amsterdam
This is the first of a series of articles seeking to elaborate responses to challenges to the rule of law. The authors consider certain of the greatest of these challenges to center around illegitimate control of State organs by groups capable of infringing presumptive rights granted under treaty to States that in a systematic and continuous way resort to abuse of process. This Article, dealing with the equality of arms, is therefore only the first of a series exploring both this problem and the manner in which it may be addressed. Whether this concept is dealt with under the theoretical template of the “Dual State” in Europe, or what we have called “State capture” in Latin America, the challenges for defense lawyers will only be heightened in coming years.
I. THE DUAL STATE AS A NEW CHALLENGE OF STATE COOPERATION WITHIN INTERNATIONAL AND NATIONAL CRIMINAL PROCEEDINGS
During the last decade, several international criminal tribunals were established, such as the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). In July 2002, the permanent International Criminal Court (“ICC”) in the Hague became operative. In 2002, another category of tribunals also came into existence: The so-called mixed, hybrid, or internationalized criminal courts, such as the Special Court for Sierra Leone (“SCSL” or “Special Court”). The latter category of tribunals consists of national and international judges who administer justice based on rules of procedure, which themselves are a mixture of national and international procedural rules. Within the proceedings before all these types of tribunals, two procedural pillars are of perennial concern and importance. The first procedural pillar is the element of State cooperation, without which international criminal proceedings cannot effectively function, seen from the perspectives of both the prosecution and the defense.
The second procedural pillar is an effective enforcement of the principle of equality of arms, which is decisive for the administration of fair proceedings. It can be said that without the first pillar, State cooperation, the international tribunals can de facto not function. The same goes for the endorsement of the principle of equality of arms. Consequently, that principle should have self-executing effect on the first pillar: State cooperation. In the absence of such self-executing effect, State cooperation cannot proceed in a fair manner; and, thus, fair trials before these tribunals are jeopardized. This Article focuses on the interrelation between State cooperation and equality of arms as basic pillars of international criminal proceedings.
This interaction is analyzed from the perspective of its importance for the effectiveness of the practice of international criminal proceedings. State cooperation before international tribunals, in which procedural equity is fully guaranteed, seems an almost unachievable aim since, as a function of their sovereignty, States apply a form of selectivity thereto. It can be questioned whether such a form of duality indeed occurs within the practice of international tribunals dealing with matters of State responsibility. The same goes for national criminal proceedings regarding evidence obtained through State cooperation, such as mutual assistance in criminal matters.
In other words, it could be questioned whether State cooperation on both the international and national levels is nothing more than a reflection of the phenomenon of the so-called “Dual State,” a concept that was developed by Ernst Fraenkel. Ernst Fraenkel was a German political theorist who immigrated to the United States in 1939. In 1941, he published The Dual State, in which he describes the coexistence of legalism with an illiberal political regime in Nazi Germany. Fraenkel portrays the political system in Nazi Germany as a combination of the “Normative State,” defined as a rational State governed according to clearly elaborated legal norms, and the “Prerogative State,” defined as a State which exercised power arbitrarily, unchecked by law.
The entire legal system was prone to exploitation as an instrument at the disposal of the political authorities, even though “insofar as the political authorities do not exercise their power, private and public life are regulated either by the traditionally prevailing or newly enacted law. The Normative State was to be sustained as a precondition for economic stability, while the coexistence of the Prerogative State preserved the capacity to eliminate or neutralize enemies and perceived threats.10 Fraenkel notes the growing friction throughout the 1930s between proponents of the Normative State and proponents of increased authoritarianism.
Fraenkel’s analysis of the Dual State also describes how the Prerogative State stifled public opinion. The insidious side of the Dual State “thrives by veiling its true face,and, therefore, public discussion must be reined in. Fraenkel refers to the records of judicial proceedings to demonstrate the creeping dominance of the Prerogative State. His analysis shows that the courts were responsible for assuring the maintenance of “capitalist order,” even though the Prerogative State occasionally exercised its ability to deal with specific cases in the interest of expediently achieving its aims. The Prerogative State accepted that the courts were necessary to assure entrepreneurial liberty, the sanctity of contracts, private property rights, and competition; but this did not mean that the courts or the law were inviolable. Indeed, according to Fraenkel, the abolition of the inviolability of law was the chief characteristic of the Prerogative State.
Clearly, there are limits to the application of Fraenkel’s theory of the Dual State to modern States: The goals of the Prerogative State in the Third Reich were uniquely horrific. This theory retains value, however, when applied to modern States, and, more relevant for the present analysis, when applied to issues of State cooperation. Although State cooperation is governed by legal rules, this same cooperation can also be used by political authorities as an instrument to influence the underlying legal system. Transposed to the subject of State cooperation, the concept of the Dual State implies that, despite the normative value and safeguards of certain legal mechanisms in terms of checks and balances, the entire legal system can become or de facto function as an instrument at the disposal of the political authorities.
Seen from this legal-philosophical perspective, the issue of State cooperation is subject to realpolitik and can serve political authorities to influence the outcome of international criminal trials. This Article assesses whether and to what extent State cooperation, both before international tribunals as well as within the system of mutual assistance in criminal matters, is vulnerable to these motives of realpolitik, while at the same time examining its impact on the principle of equality of arms.