Bar News - June 21, 2002
From Concord to The Hague
By: Lisa Sandford
From Concord to The Hague
Former Merrimack County Attorney Michael Th. Johnson talks about his role as chief of prosecution for the International Criminal Tribunal for the former Yugoslavia.
MICHAEL TH. JOHNSON believes that his 20 years practicing law in New Hampshire, including serving as Merrimack County Attorney, prepared him well for his current role as chief of prosecution for an International Criminal Tribunal.
"Everyone working at the tribunal, including myself, is in the first instance a local lawyer," Johnson said.
"The New Hampshire Bar is a unique group of professionals - I see within it as broad a diversity, as deep a sense of character and purpose and as high a degree of competence as I find at the tribunal. My 20 years as a New Hampshire Bar member was, therefore, very good preparation for my leadership role in the international criminal environment."
Johnson, who served as Merrimack County Attorney from 1983 to 2001, was appointed chief of prosecution for the International Criminal Tribunal for the former Yugoslavia in July 2001. He recently returned to New Hampshire to address the 2002 graduating class of Franklin Pierce Law Center during commencement exercises. Bar News spoke to Johnson shortly before his return to The Hague, located in the Netherlands, which is where the tribunal is headquartered.
Role of the tribunal
Under a mandate from its Security Council, the United Nations formed two experimental tribunals in the 1990s, one for the former Yugoslavia and one for Rwanda, to address alleged war crimes committed in those two countries. The tribunal for the former Yugoslavia was established in 1994 to try those who allegedly committed mass murder and other violations of international humanitarian law during the Balkan wars of the 1990s, including former Yugoslav leader Slobodan Milosevic.
"The establishment of these tribunals is the world's first attempt at providing a purely legal response to armed conflict. The Nuremberg and Tokyo trials were a combination of legal and military response," said Johnson.
"These two tribunals are genuinely civil, non-military, integrated justice systems designed to provide what we in the legal system would call rule of law. It is intended that they be devoid of political and diplomatic or strategic motives."
The mandate that formed the tribunals also requires those working within them to consider the impact of their work on the peace and reconciliation of the Balkans and Rwanda, Johnson said.
Johnson has dedicated much of his career to the prosecution of crimes, from local to international. Named Prosecutor of the Year by the NH Association of Counties in 1990 and 1994, he helped establish the International Criminal Justice Resource Center in 1997, which is a prosecutor's group that provides support for international war crimes prosecution and the rebuilding of domestic courts in war-torn countries. He has served on a number of committees of the American Bar Association's Criminal Justice Section, including the Criminal Justice Standards Committee (chair, 1996-97), the President's Special Committee on the Prosecution Function, and the Prosecution Function Committee (former co-chair). His work with the Resource Center and the ABA helped earn him the national recognition that resulted in his post with the International Criminal Tribunal.
As chief of prosecution for the International Criminal Tribunal, Johnson is responsible for managing 50 lawyers and 15 trial teams - considerably larger than the staff of about 30, including about 10 attorneys, he managed in the Merrimack County Attorney's Office. He and the tribunal's chief of investigation report directly to the deputy prosecutor, who is the administrative head of the tribunal office.
"My objective is to make sure all the trial teams are effectively prepared for the litigation side of the tribunal's work," said Johnson. This includes utilizing the tribunal's investigative and analytical resources.
Among the lawyers Johnson oversees are 15 senior trial attorneys from various countries, including the United States, Germany, Sri Lanka, Belgium and the United Kingdom. The American lawyers include Alan Tieger, who was the Justice Dept. prosecutor in the Rodney King case, and Mark Harmon, who was a prosecutor in the Exxon Valdez case. Tieger and Harmon prosecuted the Tadic case, which in 1997 was the first conviction in the history of the tribunal and established much of the jurisdictional precedent for the tribunal. Tadic was found guilty on 11 counts of persecutions and beatings.
There are currently six trials being conducted simultaneously, including the Milosevic case, which consists of three consolidated indictments (one each for Kosovo, Croatia and Bosnia). The cases are heard and decided by a three-judge panel. Three of the cases involve high-level military crimes; three are lower-level paramilitary/political-crime-based cases, according to Johnson. Of the six, four are expected to conclude in the fall and two, including the Milosevic case, will likely proceed for another year. Prosecutors in the Milosevic case will complete their prosecution within a year, and then the defense will begin presenting its case.
Johnson said that the technical aspects of prosecuting these war crimes make it a very challenging task. There are so far 3 million pages of investigative material, which the prosecution must pore over to select trial exhibits and to which the defense must have access. The most recent pre-trial brief was 500 pages long. There are 6,000 potential prosecution witnesses in the Milosevic case alone. There are dozens of defendants in custody; dozens more are fugitives.
"The technical aspects alone present an immense challenge, principally of management," said Johnson.
Developing a standard of law
According to Johnson, the most difficult part of prosecuting these cases, however, has been trying to develop an international standard of law, both procedural and substantive, to apply. Because those working for the tribunal come from around the world, they have differing ideas about judicial process. As a result, discussions on almost every aspect of the judicial process include a debate on comparative law, Johnson said. Prosecutors are trying to establish a standard for fundamental institutions such as fair trial; proper protections for the accused, victims and witnesses; exculpatory evidence; and the obligation of the prosecution to disclose.
"In New Hampshire, we have 200-plus years of discussion over these issues. When we take a position, we're doing so with a huge amount of precedent upon which to rely," said Johnson.
"But in this situation, each individual comes to the table with a firm conviction that his or her precedent is the correct one, even if it is entirely inconsistent with the 20-plus years of practice of that lawyer's co-counsel. In NH, we have the state and federal constitutions on which to rely. Here we have about 80 constitutions, conventions and treaties to draw from."
The way the prosecution team works through the debate to attempt to develop a uniform standard is "with an immense collegial respect and immense amount of patience and hard work," said Johnson. "We all have a devotion to the ultimate principle - that there can be an acceptable international standard recognized throughout the world as legitimate justice."
But trying to develop that standard while simultaneously prosecuting cases in the International Criminal Tribunal "is sort of like crossing the Atlantic Ocean on a liner we're building as we go," said Johnson.
"Everything is fluid. We have to argue not only the application of the principle, but also the principle itself. Everything is inter-dependent."
"It took Justice John Marshall 30 years to establish the foundation for an independent judiciary. We don't have 30 years," said Johnson.
A valuable experience
Johnson said that he is enjoying his role in this international legal effort and is "honored to work with some of the brightest and most talented professionals in the world." He estimates that investigation of the tribunal's cases will conclude in 2004 and that the trials will be completed by the end of the decade. He is committed to staying in the job "until my contribution is fulfilled," he said with a smile
While working for the tribunal, Johnson and his wife, Susan, and their two daughters, Emily and Kate, ages 5 and 10 respectively, are living in a house in the Netherlands overlooking the North Sea. The children attend an American school at The Hague. The family occasionally returns to New Hampshire, to their home in Canterbury, where after his service with the International Tribunal, Johnson plans to "restore my vegetable garden."