The Ukrainian Bar Association continues implementing 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.

International experts who have participated in or witnessed judicial monitoring in the past help the UBA to implement this project. The Association has prepared a series of interviews with respected experts, in which they talked about their experience of participating in trial monitoring, shared their views on how court monitoring should be conducted, and gave valuable advice to project monitors.

The hero of the second interview was Sara Elizabeth Dill, a lawyer and partner at Anethum Global, London, who specializes in human rights, war crimes, international law, and finance, including sanctions and other issues arising in the context of armed conflict. She is also a member of the International Bar Association (IBA) War Crimes Committee.

Mrs. Dill, we're very fortunate and pleased to have you as a part of our team of international experts who provide substantial support in this endeavor. Could we discuss trial monitoring experiences you've been involved in? Could you provide a brief overview?

My experience in trial monitoring has two aspects. I have worked as an individual lawyer, and I also previously served as the director of criminal justice standards for the American Bar Association. In that role, our objective was to develop best practices for criminal trials, encompassing prosecutors, judges, defense counsel, media, and more. In these capacities, I've had the opportunity to observe and monitor trials in various jurisdictions globally, including civil law, common law, Sharia, and military contexts. While most cases were criminal, there were also some quasi-criminal civil cases, as well as extradition and immigration matters, which allowed me to gain insight into different countries' judicial systems, laws, and day-to-day courtroom practices.

That sounds fascinating. You mentioned that you were involved in trial monitoring at Guantanamo. Can you share any insights or experiences from that case, within the bounds of what you can disclose?

I'm somewhat limited in what I can disclose about Guantanamo. The military tribunals there are quite distinct from anything seen elsewhere in the world, though there are some similarities. However, monitoring military tribunals was particularly crucial due to the secrecy surrounding them. There were elements of top-secret and national security issues that could not be publicly disclosed. Consequently, one of the primary challenges was ensuring that defense counsel had adequate access to their clients and addressing translation issues, among other considerations.

You touched upon challenges earlier. Could you elaborate on some of these challenges, how they were addressed, and the lessons learned during your monitoring experiences? Perhaps there are insights that could be beneficial for our own monitoring efforts.

One of the primary challenges when working with monitors, especially when volunteers from another country are involved, is understanding the local laws and procedures. However, in your case, this might be less challenging as you have lawyers from Ukraine who are familiar with the justice system.

Another significant challenge is dealing with personal biases and opinions. It's challenging to set these aside, which becomes even more critical when monitoring sensitive cases involving war crimes and atrocities during armed conflicts. In such situations, it's crucial to focus on the law and maintain objectivity, even when faced with traumatic testimonies or human rights violations. While emotions are natural, objective analysis within a courtroom setting necessitates setting personal feelings aside. This is a challenge even for civilian juries in some systems.

Additionally, access issues may arise in certain jurisdictions. Questions about whether monitors are allowed to take notes, their access to information, and whether they have access to parts of the proceedings that are not open to the public can be significant concerns. Access to necessary information is essential for drawing conclusions and producing reports.

That's very interesting that you mentioned it. Now we observe that most of our monitors have free access to proceedings, which are open. However, in some cases participants of the proceedings say: “Oh my, we did not expect anyone to show up and that's why we didn't restrict the access to proceedings. But now when we see that there's a monitor, we as the side of the prosecution will file a motion on closed hearing.” So, with regard to a reaction of the justice system, was there anything interesting, unusual that you observed? Were the parties always welcoming, sometimes critical? How did you tackle these challenges?

Regarding reactions from the justice system, it often depended on the specific case being heard. In some instances, special permissions were granted to monitors, with agreements in place not to publicly disclose proceedings or produce public reports to keep matters private. Agreements could also be diplomatically arranged, particularly in cases involving a citizen of one country on trial in another. However, in more open monitoring situations, it was hoped that there would be understanding among the prosecution, judiciary, and defense regarding the available access.

Sensitivities, such as the need for closed hearings or protecting the identities of witnesses or victims due to safety concerns, could also impact access. The ideal scenario is that, given the goals and objectives of a monitoring process, proceedings are open, just, and compliant with international standards to avoid allegations of unfairness.

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Could you share insights into the models and methodologies employed in the monitoring processes you were part of? Were there variations, and what was your experience with these methodologies?

Monitoring models and methodologies can vary significantly based on the country, circumstances, and objectives. Monitoring efforts can range from widespread projects aimed at ensuring a fair and just process to situations where a country seeks to reform its procedures. The methodology chosen often depends on the goals, whether it involves producing a report, recommending reforms, protecting rights in specific cases, or gathering information for shadow reports to international bodies like the United Nations.

I find the methodology the Ukrainian Bar Association has implemented to be highly impressive and thorough. It offers an excellent opportunity to examine all aspects of a trial comprehensively. The questionnaires and tools developed provide monitors not only with the ability to report on what transpired but also enable those reviewing the reports to determine recommendations and reforms. This approach aids decision-makers in implementing necessary changes. Additionally, in situations of armed conflict, it is valuable for the public to be informed about ongoing proceedings, particularly in the context of reconciliation and rebuilding.

Reflecting on past monitoring efforts, can you say whether they achieved their objectives? Perhaps you can provide examples, within the limits of confidentiality.

I think that in some cases they did. From a fact-finding perspective, trials in cases of war and atrocities serve to preserve history and create a record of what occurred. Public awareness, facilitated by independent monitors reporting beyond the media, contributes to preserving historical aspects of these events. Moreover, monitoring can lead to reforms in a country's judicial systems, laws, and courtroom procedures — an essential purpose because no system is flawless.

Monitoring allows attention to be drawn to issues, highlighting instances of non-compliance with international standards and violations of rights — whether those of the prosecution, victims, witnesses, or defendants. This process fosters a better system, and governments often respond by acknowledging problems and committing to reforms. For instance, the world witnessed the impact of monitoring at Guantanamo, shedding light on government abuses, challenging existing laws, and affecting survivors and victims' families.

The objectives of monitoring efforts encompass a broad spectrum, and when dedicated lawyers collaborate with the court system, judges, government officials, and international organizations, substantial progress can be achieved.

Lastly, do you have any advice for us, for our Ukrainian justice system or this monitoring project in particular?

My advice would be to remain steadfast and not be discouraged. Trying cases is an exhausting process, and even as monitors observing from the sidelines, it can be emotionally taxing to listen attentively, take notes, and witness the proceedings, especially in challenging cases. It's unimaginable to have to do so in a country experiencing war while simultaneously sitting through a trial in detail, hearing details beyond what is reported in the news or shared by family members. Acknowledging the trauma impact on lawyers working on such cases and paying attention to mental health aspects is crucial.

Attention to detail, objectivity, and thorough preparation are paramount. Monitors should have a strong understanding of the laws, facts of the case, and courtroom procedures. Understanding international standards is also essential, which is where the methodology you've developed comes into play. Monitors should be willing to ask questions, seek assistance when uncertain, and access additional resources if needed.

Lastly, monitors should be open to feedback. Those reviewing the reports should provide feedback on areas for improvement. Follow-up training and ongoing communication with monitors to understand what's working and what challenges they face are vital, as this is an ever-evolving process.

Interview conducted by Inna Liniova, UBA International Operations Advisor

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.