Interview: François Roux, Head of Defence Office of the Special Tribunal for Lebanon

How and why did you become an international lawyer?

I became an international lawyer first and foremost because I have always been engaged in the defence of human rights. For many years I was engaged in defending separatists in French Polynesia and New Caledonia, in the French Pacific Territories. I was also among the first supporters of the creation of International Criminal Tribunals

I subsequently worked in Burundi where I organized a “Mission de Dialogue” along with diplomats and human rights activists who supported the creation of the International Criminal Tribunal for Rwanda. I have always believed that in order to function, international justice not only requires prosecutors and judges but also defense lawyers, without whom there can be no justice. It is not by chance that many of the human rights lawyers who supported the idea and creation of international criminal tribunals subsequently became defense lawyers. At first sight, it might seem contradictory to have the will to fight impunity whilst defending the alleged perpetrators. However, the prosecutor fights impunity, the judge must judge impartially, and the defense lawyer has to defend the rights of the accused. The judges are not on a crusade against impunity: rather, they must render judgment. I have become a defense lawyer because I believe in the specific role of the defense lawyer in the service of justice.

Why did you decide to become Duch’s lawyer? How did you prepare for this case?

I represented three accused before the International Criminal Tribunal for Rwanda (ICTR), one of whom was acquitted. The remaining accused pleaded guilty, which for me as a civil law practitioner was a novel concept and practice. For the Cambodia trial I registered as a defence lawyer and was assigned to the first accused, Mr. Kaing Guek Eav (also known as Duch) who acknowledged his guilt. I prepared my case by reading many books and reports and speaking to several experts about the atrocities that took place in Cambodia during the Khmer Rouge Regime.

The investigative judges prepared the case in accordance with civil law by seeking Duch’s participation in the truth-seeking process. For example, they invited him to read a book “Voices of S-21” by David Chandler, which describes the system of terror and executions that took place in S- 21, a prison camp used by the Khmer Rouge from 1975 until 1979 which Duch headed. After reading the book, Duch confirmed the accuracy of the contents and assisted the court in having a comprehensive understanding of the events that unfolded at S-21. Duch participated and cooperated at every stage of the investigation and court proceedings by for example providing useful information about the Khmer Rouge regime and its crimes.

Why did you participate in the documentary ”The Khmer Rouge and the Man of Non-Violence?”,  about the Khmer Rouge – leader Kang Guek Eav  alias “Duch”, the head of Prison S -21?

 I was initially reluctant to accept the invitation from director Bernard Mangiante to participate in the documentary. I was concerned that it could complicate my relationship and work with Duch, who was on the way towards accepting responsibility for his actions. However, Mangiante persisted and convinced me to share Duch’s story, which I felt was a story of an ordinary man with lofty ideals and a particular vision of justice who ultimately became an executioner. I am very satisfied with the final product which reflects with great sensitivity my daily work with Duch.

The documentary showed your involvement in Duch’s case and your emotions when things took a surprising turn in the last stages of the trial. How did you feel about being watched by the whole world?

I did not mind that the film showed the difficulties inherent to the work of the defence before an international criminal tribunal. It was a transparent and honest account of the situation I found myself in during the final stages of the trial. I did not consider that I had anything to hide, and the live images revealed my frustration and disillusionment.

What kind of response did you receive about the documentary? Were the reactions positive or negative, encouraging or critical?

I was present at the presentation of the documentary at various festivals. Generally, the reactions were very positive. Typically, the audience was left pondering the sincerity of Duch and the impact of his remorse on Cambodian society. The majority believed him to be sincere and understood his struggle to accept responsibility for the crimes he committed. Some others could not believe him and did not understand how I could defend such an individual.

What is in your opinion the value of audio-visual materials like documentaries and movies for the study of international criminal law? Do you think students should be encouraged or obliged to supplement their knowledge of international legal issues with these kinds of materials?

A film cannot replace a book, but it can show things books cannot. A film centered on a criminal trial can be a truthful account of the emotions involved in such a human affair. It is very important that students realize that a trial before an international criminal court is not an academic event and they must feel and experience the entire atmosphere in order to fully comprehend the situation.

Cases heard at international criminal tribunals are completely different from those before the International Court of Justice (ICJ). A criminal court deals with human beings with all their complexities and passions. I often advise my students to attend court sessions to witness the law in action. Leave the books and movies at home and watch the reality of a trial played out in the courtroom!

I would recommend the following three films:  ‘S21- The Khmer Rouge Killing Machine’ (2003) a documentary film by Rithy Panh, a survivor of the Khmer Rouge Regime, ‘Towards reconciliation’ (ICTR production) and Storm (2009) by Hans–Christian Schmid. It is very important to always have a debate and discussion with the students after watching films with this kind of subject matter.

At this moment you are Head of Defense Office of the Special Tribunal for Lebanon in The Hague. Do your current work activities differ from those in Cambodia?

 In the years that I worked as a defense lawyer at international tribunals I noticed inadequate respect for defense lawyers. It became clear that an independent organ to defend and support defense lawyers working in international criminal trials was essential. Thus the Special Tribunal for Lebanon (STL) became the first international criminal tribunal to have such an independent organ.

The STL has four organs: the President, the Registry, the Office of the Prosecutor and the Defence Office. At the other tribunals there are only three, reflecting a lack of recognition of the importance of the defense in the judicial process. In my opinion, it is more conducive to a fair trial. The Defence Office is not directly involves in the cases. Rather, my duty is to facilitate an effective defense as well as to provide legal, financial and logistical assistance to Defence counsel.

 In this respect, in contrast to the ICC, here at the STL I would not support an institutional standpoint that states that the sole purpose of the tribunal is to fight impunity. The purpose of any tribunal is to render justice, with equal and separate roles for the prosecutors, the defense lawyers and the judges. As human beings, we would all agree that atrocities should not go unpunished. Our compassion towards the victims of such crimes is natural and spontaneous. Often these emotions translate into a desire to see an accused convicted. However, as soon as an individual is accused of a crime, he is accorded a set of fair trial rights which the Defence lawyer is tasked with defending. Furthermore, the presumption of innocence dictates that an accused is only guilty when proven legally responsible for the crimes based on the evidence before the court. For example, in twenty-five percent of all cases by the ICTR and ICTY, the accused were acquitted.

In the documentary as well as on the profile page of the STL it states that you are influenced by the philosophy of Mahatma Gandhi. How do you apply the teachings of Gandhi to the work of an international criminal lawyer?

What I have learned from Gandhi is that every man has a divine part within himself. In his book “All men are brothers” , the essence of his philosophy is to recognize your brother in another, regardless of who he is. According to this view, a man cannot be and should not be reduced to the crimes he has committed.

Another lesson from Gandhi is about civil disobedience.  When you do not learn disobedience in a democracy, what will you do during a dictatorship?

In a similar vein, Chandler concludes his book by addressing the crime of Obedience by referring to the Milgram experiment conducted 40 years ago in the United States. The Milgram experiment on obedience to authority figures was a series of social psychology experiments which measured the willingness of study participants to obey an authority figure who instructed them to perform acts that conflicted with their personal conscience. It concluded: “to find the truth about S-21 we only have to look at ourselves”. 

Therefore, in every trial we must ask ourselves:  how can a human being become an executioner? Thus, it ought not to be about finding an excuse, but an explanation. In the Duch case I asked the judges, when you will condemn him, will society be a better one?

A French prisoner of the Khmer Rouge regime, Francois Bizot, who was released by Duch, wrote a book entitled “Le portail” about his detention in Cambodia. In his testimony during the Duch trial he told the President that he “saw the man behind the prisoner, and this man resembles me”. Bizot has been troubled by that revelation ever since.

International justice, apart from its function in determining guilty and apportioning blame, also has a didactic function. In order to avoid a recurrence of such crimes, it must enable the public at large understand how and why individuals and groups come to commit atrocities.

Do you have any advice for students who want to become international (criminal) lawyers?

Practice in your national jurisdiction and gain criminal trial experience before starting a career at an international tribunal. Merely leaving university is not enough. You need to practice defense law first and then you are welcome!

How do you feel about the decline of French as an international legal language?

Unfortunately the tribunals are mostly anglophone. For example, vacancies at the STL are thus far only announced in English, so francophones may think that these are not open to them. This must change, because with the language also comes the legal culture. Today there is not yet an ‘international’ criminal law. It is in essence common law as applied in the international justice context. In the world there are at the very least two main legal systems, common law and civil law. There will only be a genuine international criminal law when both legal cultures are integrated. Common law as it is currently applied, does not function effectively in the trials, and the procedure is too long and too costly. The civil law system would not suffice in itself either. We need a mix of the best of both legal cultures. Indeed, this is a challenge. As the International Court of Justice did in 1978, the International Criminal Court must revise its statute to integrate civil law elements such as an investigative chamber. No doubt and this will probably take a long time but I do keep faith and hope