Written by Mladen Pupavac and Vanessa Pupavac.
My surveyor is false. The o’er-great cardinal
Hath showed him gold; my life is spanned already:
I am the shadow of poor Buckingham,
Whose figure even this instant cloud puts on,
By dark’ning my clear sun.
Lord Buckingham has been arrested for high treason. But he finds that he cannot plead his innocence because the powerful Cardinal Wolsey, adviser to King Henry, has brought ‘the examinations, proofs, confessions / Of divers witnesses’ to testify against him. Shakespeare’s Henry VIII written with John Fletcher is rarely played. Henry VIII is often only mentioned in connection with being the play where the infamous cannon was fired that burnt down the Globe theatre in 1613. Nevertheless the play addresses themes of political power, justice and due process that remain compelling today, themes that the recent BBC radio production brought out so well.
Stubborn to justice
Shakespeare’s history play centres on Henry’s decision to dissolve his marriage to Queen Katherine on the grounds that he should not have married his brother’s wife – a matter that Katherine pleads was resolved by the church scholars convened by their fathers. But as two courtiers observe:
It seems the marriage with his brother’s wife
Has crept too near his conscience.
No, his conscience
Has crept too near another lady.
Henry and his advisers tell Katherine that the assembled court will judge the case impartially. She will be offered the best of advice, and their mutual representatives will be as ‘Two equal men’. This is of little reassurance to Katherine. Legal opinion will conform to the sovereign’s desire whatever the pretence of impartiality:
Can you think, lords,
That any Englishman dare give me counsel,
Or be a known friend ‘gainst his highness’ pleasure –
Though he be grown so desperate to be honest –
And live a subject?
Our sympathies are firmly with Katherine, when she pleads for ‘right and justice’ in her case.
Sir, I desire you do me right and justice,
And to bestow your pity on me, for
I am a most poor woman, and a stranger,
Born out of your dominions, having here
No judge indifferent, nor no more assurance
Of equal friendship and proceeding. Alas, sir,
In what have I offended you? What cause
Hath my behaviour given to your displeasure,
That thus you should proceed to put me off,
And take your good grace from me?
For Katherine has already been shown in earlier scenes as having the courage to speak truth to sovereign power. She has sought ‘right and justice’ in others’ causes, whether petitioning against the harsh taxation imposed on citizens because of Henry’s wars in France, or cautioning against false testimony in Buckingham’s trial.
However voices of conscience are suppressed by the king’s obedient judges. Katherine’s accusations of undue process are dismissed: ‘Stubborn to justice, apt to accuse it, and / Disdainful to be tried by’t’. She is indeed stubborn in her defence of ‘right and justice’. She will not lend her presence to the farcical trial orchestrated by Wolsey whom she accuses of being no ‘friend to truth’.
Mistrust and dread pervade the court where the king’s favoured adviser ‘makes up the file / Of all the gentry’. Courtiers fearfully exchange news about the latest denunciation or arrest:
We are too open here to argue this.
Let’s think in private more.
Even a king’s favourite only enjoys a precarious high position. In their sudden downfall, they immediately find ‘being but a private man again … many dare accuse you boldly’. An accusation is as good as a conviction where individuals quickly ‘perish / Under device and practice’.
To claim Buckingham was lawfully condemned, or Katherine has ‘Scholars allow’d freely to argue for her’, is disingenuous. Even if Katherine has ‘Men…Of singular integrity and learning’ to plead her cause, the king’s conscience against their marriage is known in advance. For all his public protestations to the contrary, King Henry privately admits the corruption of justice where you need ‘better luck …in perjured witness’ to win in court:
The justice and the truth o’ the question carries
The dew o’ th’ verdict with it. At what ease
Might corrupt minds procure knaves as corrupt
To swear against you?
But the king protests too much. If the course of justice is being perverted, Henry as the sovereign is responsible. The dying Katherine takes comfort in there being a higher judge: ‘Heaven is above all yet; there sits a judge / That no king can corrupt’.
International criminal justice: a higher judge?
In recent decades, we have seen significant steps to develop international law to secure human rights against violations committed under the cloak of national sovereignty. The new millennium saw the inauguration of a new international criminal justice system ‘for the most serious crimes of international concern’. The International Criminal Court (ICC) seeks to end impunity for war crimes and crimes against humanity. The ICC represents the culmination of various ad hoc international criminal tribunals to prosecute those responsible for war crimes or violations of international humanitarian law, and thereby help build peace.
International advocates have argued for international legal processes as securing impartial trials and due process, free of the political corruption or intimidation marring national courts in conflict or post-conflict situations. But the emerging international criminal system is not a higher judicial realm above political expediency or controversy. The ICC’s legitimacy as an impartial international court has been challenged. Last October three African states – Burundi, South Africa and Gambia – announced their withdrawal from the institution amid accusations of its racist prosecution policy towards Africa. Nine out of its initial ten cases are against Africans. Although African states may be persuaded to remain participants of the ICC – the new Gambian government said in February it will stay – the taint of international political bias remains.
Even in the 1990s, when beliefs were at their highest in a new international system making human rights paramount over power politics, there were some disquieting occurrences. Certain incidents suggested that international criminal justice could be cavalier towards principles of ‘right and justice’. Indeed international advocates’ very impatience to achieve human rights enforcement risked short-term expediency, potentially jeopardising human rights and due process in the long term. As Katherine warns of church practices ‘all hoods make not monks’.
In 1995 the International Criminal Tribunal for Former Yugoslavia (ICTY) in The Hague began the first international criminal trial since the Nuremburg and Tokyo trials after the Second World War. Advocates of the ICTY wanted the Tribunal to be more than individual trials. They sought the Tribunal to deter future war crimes, and build international peace and justice, by establishing a historical record of what happened in the 1990s’ wars and ending impunity.
The first trial was of a Bosnian Serb Dusko Tadic, accused of war crimes and crimes against humanity. Tadic’s trial generated considerable attention, although he was a minor figure in the Bosnian war. The human rights lawyer Michael Scharf, was a legal advisor to the US State Department, and involved in drafting the statute of the ICTY. In the words of Scharf, the proceedings constituted ‘an historic turning point for the world community’, setting an international legal precedent and building a new international criminal system. For Scharf, the Tribunal’s ability to meet the ‘goals of deterrence, justice and peace’ was deciding ‘the direction of human rights enforcement in the next century’.
Tadic was convicted in May 1997. The conviction was seen as a milestone for international criminal justice. As the London-based magazine The Lawyer reported at the time:
The question now is will the tribunal’s work be sufficiently credible to pave the way for the establishment of a permanent international criminal court.
However the trial’s legacy for human rights and due process is troubling in relation to its key witness.
Just as Wolsey, as a man of God, professing ‘cardinal virtues’ is not above ‘cardinal sins’, nor does the claim to speak on behalf of human rights victims guarantee impartial legal processes upholding human rights.
Better luck … in perjured witness?
It was twenty years last October since the Witness L scandal concerning false testimony broke at the ICTY. The Prosecution Witness L had testified to seeing Tadic committing murder and rape. His testimony was under a protection order granting him anonymity from the public. The ICTY had decided to permit protection orders granting witness anonymity in order to prevent the intimidation of witnesses or retribution against them. The trial chamber had facilitated the admission of other anonymous testimony too, including through expert testimony. But witness anonymity raises problems for conducting a defence, and testing the credibility of a witness, and the truth of the testimony.
In his testimony, Witness L claimed among other things that his father had died, and that he had no brothers. Fortuitously, the existence of a father and a brother came to the attention of the defence team, casting doubt on the truth of his testimony. The defence then secured a meeting at the ICTY where Witness L was presented with his father and brother. Witness L admitted that he was Dragan Opacic and had lied in his testimony. Opacic further alleged his testimony, and his confession to genocide, had been made under duress while in the custody of the Bosnian authorities.
In face of this revelation, the prosecution requested the court dismiss his testimony. The ICTY then considered whether Opacic should be prosecuted for perjury, and called for an investigation into his false testimony. The Tribunal exonerated both its prosecution office and the Bosnian authorities without a fuller investigation.
The Chief Prosecutor Louise Arbour concluded in a letter in December 1996 to the president of the presidency of Bosnia:
Based on our brief, but intensive, investigation, we have not discovered anything that would support Opacic’s allegations that your authorities forced him to give the false testimony in Tadic’s trial or trained him in delivering the false testimony. To the contrary, the information obtained by our investigators suggests that Opacic’s allegations against your authorities are false.
After a series of deliberations and the conviction of Tadic, the ICTY decided to return Opacic to the detention of the Bosnian authorities, and dismissed his claim of having been tortured into confession, and his request for asylum in the Netherlands. A press release from the ICTY maintained why he had lied was irrelevant to Tadic’s trial, and he was therefore returned to Bosnia as no longer useful as a witness.
A contemporary account of the trial by Scharf in 1997 highlights how the matter of false testimony and witness intimidation was embarrassing for the prosecution. Scharf refers to ‘The prosecution’s task’ becoming ‘all the more difficult when its most important witness – witness “L”- later admitted that he had falsely testified about Tadic’s involvement in crimes at a Serb-run concentration camp’. The perspective is that of the prosecution. The perspective of Witness L – Opacic’s claim he was ordered by the Bosnian authorities to testify as he did – is in a footnote.
Nevertheless nagging issues remained over Witness L and relying on anonymous testimony. What if the ‘better luck’ of the defence in uncovering ‘perjured witness’ had not prevailed? Why had the prosecution not spotted any problems with Witness L’s testimony earlier? How had the prosecution been ignorant about the true identity of its key witness? Why did the Tribunal not investigate further into the circumstances of Opacic’s false testimony? Why was the Tribunal ready to return a witness to the detention of the Bosnian authorities in the face of his claims? The acceptance of anonymous witnesses with apparently inadequate safeguards risked inviting further unreliable testimony.
International advocates hold that the role of an international court is about ending impunity for war crimes, and preventing human rights violations. It seems that the higher cause of establishing an international criminal justice made advocates eager to leave behind troubling questions over false witness in the very first trial of the system they wanted to establish. Yet while international human rights lawyers may have been satisfied, the legitimacy of the Tribunal to all sides in the conflict was compromised, with implications for its mission for fostering peace and reconciliation. Instead it was seen by many Serbs as the continuation of power politics by other means – a perception which now haunts the International Criminal Court in Africa.
Human rights advocacy over due process
The brutality of war crimes and crimes against humanity, and the imperatives of victims’ justice, may make concern over an individual witness seem like nit-picking. Nevertheless international justice is advocated as a superior form of justice, transcending the passions of the warring parties to offer impartial processes and judgements. The prosecution’s failure to identify fundamental problems with the credibility and testimony of its key Witness L, and the limited interest shown by the human rights lobby in the wake of the revelations by the defence were disquieting. The scandal of Witness L was possible because of how the Tribunal was greeted so enthusiastically by human rights advocates, who did not want to derail its historic mission. The individual trial was not simply an end in itself. The trial was the means to a higher good. Namely the establishment of a permanent international criminal justice system.
If the eagerness of international human rights advocacy could potentially jeopardise rigorous scrutiny in this first and high profile case, how much easier for security concerns to trump human rights subsequently? The international human rights advocacy convictions of the 1990s naively helped legitimise the erosion of defendants’ rights in the war on terror in the 2000s. The greater leniency towards the admissibility of evidence in international trials influenced common law systems responding to the war on terror in ways eroding the rights of defendants. Consider how the Tribunal’s greater permissiveness towards hearsay evidence was later invoked in arguments in the United States over allowing hearsay evidence in military commissions. Its permissiveness towards expert testimony is another problematic legacy for the criminal justice system. In key respects, the Witness L scandal anticipated the dangers of anonymous testimony, dodgy dossiers and rendition becoming unofficial standard operating procedures.
Shakespeare’s Henry VIII shows the dangers of political trials and accusations becoming convictions under political pressure. It is all too easy to be cavalier about the conduct of trials where the defendant has previously been unjust to others. Why should a Buckingham or Wolsey evince our sympathy in their downfall given the power they have enjoyed over others? However Queen Katherine’s defence of due process understands how our rights are bound up with each other, and to compromise others’ rights is to compromise one’s own.
But no intimidation from a Henry VIII is required to undermine due process. Our own higher causes and concerns for victims may legitimise such developments. The convictions of human rights advocacy compromised defendants’ rights and the rules of evidence in international criminal trials. A new generation of human rights thinking is required to address the problematic legacy of international criminal jurisprudence for criminal justice internationally.
Vanessa Pupavac is a senior lecturer in International Relations at the University of Nottingham. Mladen Pupavac is a research associate of the Centre for Social and Global Justice at the University of Nottingham. Both have previously worked for the UN Criminal Tribunal for Former Yugoslavia.