PhD studies in human rights: Georgia and the Issues of "Legal Transplants"

Tuesday, 10 February 2015

Georgia and the Issues of "Legal Transplants"

In December of last year, the OSCE's Office for Democratic Institutions and Human Rights released a fascinating report on its trial monitoring activities in Georgia. In 2009, following significant input from USAID and other international donors, Georgia adopted an amended Code of Criminal Procedure, described by the US Embassy in Georgia as introducing 'a full adversarial system to criminal courts.'

The OSCE's report reveals inadequate judicial intervention on key issues of case management - in one case, the prosecution proposed that it would call 4,000 witnesses, and the pre-trial judge granted this request, refusing 'to assess the relevance and necessity of the witnesses, or discuss the defendants’ right to a timely hearing'. The imposition of a party-led approach to replace Georgia's old inquisitorial system appears to have led to something of a non-interventionist judicial approach in the trials observed, where on a number of occasions, the prosecution was permitted to call defendants as witnesses for the prosecution, without those defendants being told by the judges of their right to remain silent.

These elements, combined with a reluctance to halt inappropriate or irrelevant questioning of witnesses, permitting discussion of the accused's criminal record during trial, and a general passivity in courtroom management matters, present something of a caricatured view of the adversarial legal system. Georgia's experience illustrates some of the difficulties that can be faced when elements of one legal system are transplanted to another. In the words of Professor Damaška, 'In their natural habitat, each set of practices is part of a larger procedural whole, with its own internal coherence.... Creating a successful mixture is not like shopping in a boutique of detachable procedural forms, in which one is free to purchase some and reject others.'

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William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.