The Ukrainian Bar Association continues the implementation of the project "The trial monitoring in war crimes cases", which it implements jointly with the USAID Human Rights in Action Program and the Ukrainian Helsinki Human Rights Union. The project monitors are already attending trials where war crimes cases are heard and filling out questionnaires based on the results of each of them.

In their work, monitors are guided by a methodology that was developed with the support of the International Bar Association (IBA). International experts who have experience of participating in trial monitoring or witnessed its implementation, not only provided professional assistance during the preparation of the project for launch, but also continue to advise project participants at the stage of its implementation.

In a series of interviews for UBA, respected international experts talked about their experience of participating in the trial monitoring, shared their opinions on how the monitoring should take place, and gave valuable advice to project monitors. The first interviewee is Justice Richard Goldstone, a well-known human rights defender and judge from South Africa.

Mr. Goldstone's judicial career began in 1980. Nine years later, he was appointed to the Appellate Division of the Supreme Court of South Africa. In the first half of the 1990s, when the local long-term apartheid policy collapsed, Justice Goldstone chaired the Commission of Inquiry regarding Public Violence and Intimidation (the Goldstone Commission). In 1994-2003, he served as a justice of the Constitutional Court of South Africa.

From 1994 to 1996, Justice Goldstone served as the chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. And in 1999, he assumed the chairmanship of the International Independent Inquiry on Kosovo and he was appointed as the co-chairman of the International Task Force on Terrorism established by the IBA. Justice Goldstone also served as an international advisor to the International Committee of the Red Cross.

Mr. Goldstone, we're very lucky to have you as an international expert supporting the monitoring of judicial proceedings in Ukraine.

Thank you. I must feel very privileged and happy to be involved in this very important project of the Ukrainian Bar Association. That's much to your credit that you have introduced a trial monitoring system in respect of war crimes trials that are so important, especially for the victims of those crimes in Ukraine.

Thank you so much. I suggest to speak a little bit about the monitoring in general. Ukraine does have a record with trial monitoring, but now, especially in war times, such a monitoring, we believe, is even more important. However, we also would like all our partners to view it as an exercise aimed at supporting them and helping them in administering justice and ensuring the rule of law and human rights protection in Ukraine, even in times of crisis.

So, in general, what would you say, what is the advantage of the trial monitoring? Does it in any way contribute to the rule of law?

Well, the important aspect, in my view, is that the presence of trial monitors encourages judges and all participants in a trial — the prosecutor and the defense lawyers — to be transparent in following proper and fair procedures. That reassures victims and the international community that fair trials are being held.

In a situation of war, obviously emotions run very high and trial monitoring is even more important. The fact that a trial has an international spotlight shining on it makes all participants more aware of the necessity to adhere to the principles of fair trials. I would emphasize again that it is especially important for victims that the perpetrators are convicted only after a transparent and fair trial. Show trials have never brought comfort to victims. So, I think those are the added aspects from a system of trial monitoring.

What do you think, what are key elements or characteristics of a successful trial monitoring?

The first is that the trial monitors must have a suitable and full experience with regard to criminal trials and a good knowledge of what is required in running a fair trial. Most important, the independence must be beyond any question. It is also crucial that the monitors are appointed by or have the approval of appropriate organisations, whether domestic or international.

The International Bar Association is a leader in this respect. Since 1996 the IBA has sent trial monitors to some 24 countries around the world and, to the best of my knowledge, no one has questioned their independence or professionalism. It's very appropriate that the UBA is partnering with the IBA in this trial monitoring project.

We have a lot of experience in trial monitoring by journalists, civil society activists, human rights defenders. Is there any difference between trial monitoring conducted by legal professionals as opposed to trial monitoring conducted by civil society representatives or mass media? What are pros and cons of both models?

Well, the fact that trials are open to the public is crucial to the rule of law. The presence at trials of representatives of civil society and the media is also part of that rule of law. But the role of trial monitors differs in important respects from those of journalists or civil society observers. With the best will in the world, the media, for example, are very seldom unbiased. Journalists inevitably offer a side in their reports. The media they represent take into account what the majority of their readers want to read. In the case of the war in Ukraine, the mass media are seldom unbiased or neutral. Editorial pages indicate support for one side or the other and journalists usually reflect that.

That is not the case with professional trial observers which are not journalists and don’t deal with the public. In my experience, they bring out the best in all the participants, whether they are judges, the prosecutors or the defense lawyers. But it’s important for everyone to understand that trial monitors don’t make public statements. In the case of your project, they will report back obviously to the IBA and the UBA. So, it’s a much more private situation than civil society representatives at the trial or particularly journalists who really are there to report immediately. They don’t really dwell on what’s happened and give an objective outside account. The job of the journalist’s profession is a very different and much more immediate one.

We have a little bit less than one month of trial monitoring behind us and we see that in most cases trial monitors have a free access to court premises, there are no obstacles to their participation in the proceedings. However, there were some rare occurrences when no one expected trial monitors in the proceedings and that's why the side of the prosecution did not file a motion on the closed judicial proceedings. Do you think there are cases as it is in Ukraine that in times of a war, close judicial proceedings in war crimes cases can be justified? Or is it the rule that proceeding should be as open as possible?

It's difficult to generalize, but certainly in times of war some information could be sensitive and there might will be extraordinary situations that justify closing some part of the trial to keep sensitive evidence out of the public domain. But that should be the absolute exception and not the rule. Judges and prosecutors should do all they can to have all of the trials in the most open fashion possible.

Do you have any experience of trial monitoring in other countries? Were you involved in any sort of trial monitoring?

I wasn't directly involved as a trial monitor but I was certainly very much involved in trial monitoring in my own country during the dark apartheid years, before we had democracy in 1994.

During the apartheid years there were hundreds, if not thousands, of security trials, for the most part against black activists who were brought to court under the draconian, very severe apartheid security rules. It was very important that international organizations and some bars, particularly the American Bar, sent trial observers to the most important security trials during apartheid in South Africa. I know they had a good effect on the judges and the prosecutors, and the defense. The trial monitors obviously introduced themselves to the judge and the prosecutor, and defense. I think that helped to make the trials more open and fairer and it also encouraged judges to give their reasons for the conclusion they reached having regard to the important requirements of fair trials. That was certainly a positive experience.

I know through my involvement with the Human Rights Institute of the IBA that the IBA’s monitors have had a very positive effect on trials in many of the countries to which they have sent monitors.

This is very interesting, sounds like a fascinating experience. How did the legal system react to such trial monitoring? And do you happen to know whether observations of trial monitors were implemented? Did the justice system of the South Africa pay attention to them?

You know, the direct effect is on the trials themselves. I think the very fact that a trial monitor in court has an effect on all the participants in the trial. Certainly, in my opinion, that's the most important effect. On the wider issue, if trial monitors report that fair trial rights are being ignored or being contravened, obviously that would have an effect, a political effect, and presumably suitable actions would be taken to avoid any faults that came out of the trial monitoring project in the reports.

May I ask how the justice system of the South Africa is doing now, if you feel comfortable talking about this?

Absolutely. The justice system in South Africa today is completely independent. I've never heard any serious complaints about the fairness of trials before South African courts and particularly the higher courts. We have a very active Supreme Court of Appeal which is the second highest court. The work of the Constitutional Court is obviously crucial in ensuring that the rights contained in the Bill of Rights are adhered to. Our present democratic Constitution is a very fulsome, very detailed one. It provides all of the international fair trial rights at the constitutional level. So, whenever there's a deviation with fair trial rights, our appeal courts and particularly the Constitutional Court put it right very quickly.

Is there anything else you would like to advise us in the process of trial monitoring?

I would only stress that it's very important for the people involved in the judicial system to embrace the trial monitoring project and to see it as in their interest. It is really a win-win situation, all of the participants in the war crimes trials would benefit on the presence of the trial monitors and any subsequent interaction with the IBA and of course with the UBA. I can only congratulate you again for inaugurating this system.

Interview conducted by Inna Liniova, UBA Executive Director

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union.

Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of the USAID or the United States Government. The contents are the responsibility of the authors and UHHRU.

The American people, through the USAID, have provided economic and humanitarian assistance worldwide for 55 years. In Ukraine, USAID’s assistance focuses on three areas: Health and Social Transition, Economic Growth and Democracy and Governance. USAID has provided 1.8 bln. technical and humanitarian assistance to Ukraine since 1992.

For additional information about USAID programs in Ukraine, please visit our website: https://www.usaid.gov/ukraine or our Facebook page at https://www.facebook.com/USAIDUkraine.