This House opposes televising all criminal trials, and the ICC is no exception

The broadcasting of trials may be through TV or across the web. Currently, ICC trials are web streamed on their website with a 30 minute delay. This feed is also used by television broadcasters and used for reporting.  

Probably the most infamous televised criminal trial was that of OJ Simpson in California in the mid-1990s. Simpson, Heisman Trophy winning running back and later actor, was tried for the murder of his ex-wife and her friend. The trial, which resulted in a not guilty verdict, was broadcast live.

A more recent source of debate in the United Kingdom was Channel 4’s non-live broadcast of the retrial of Nat Fraser for the murder of his wife, Arlene[1]. The 90 minute long programme showed footage of the six week trial, which occurred the prior year, in addition to interviews with people involved. This came after three years of negotiation[2], and was the second British murder trial filmed, the first in its entirety. While in England and Wales all filming and photography in criminal courts is prohibited, the law in Scotland (which, while part of the United Kingdom maintains its own legal system) is less strict, allowing filming if everyone involves consents to do so. In the United Kingdom some civil appeal cases are broadcast, such as some of those at the United Kingdom Supreme Court, are already broadcast live online, and filming criminal sentencing is being considered[3]. Civil law systems, in general, do not use juries (one of the factors that makes it harder to film trials due to the risk of them being identified) so there is less controversy surrounding the broadcast of trials in countries that use civil law.

[2] Sherwin, Adam, ‘American-style televised courts move a step closer: Channel 4 to show a British murder trial for first time’, The Independent, http://www.independent.co.uk/news/media/tv-radio/americanstyle-televised-courts-move-a-step-closer-channel-4-to-show-a-british-murder-trial-for-first-time-8541108.html

[3] Evans, Martin, ‘Cameras to be allowed in English courts for the first time’, The Telegraph, 12 September 2013, http://www.telegraph.co.uk/news/uknews/law-and-order/10304437/Cameras-to-be-allowed-in-English-courts-for-the-first-time.html

 

Title 
Televising turns justice into entertainment
Point 

Broadcasting trials would be likely to turn the court in to entertainment. The Simpson trial showed how harmful a televised high profile trial can be degenerating into a freak show. The ICC trials are among the most high profile in the world so are likely to be susceptible to this. Much of the interest in the SCSL Charles Taylor trial came along when Naomi Campbell gave evidence so giving the trial celebrity interest that had little to do with the legalities involved[1].

Jurisdictions where cameras are not permitted in courts still can and do have accurate, informative and timely reports of cases, however high profile, without filming them. Courtroom sketches, written transcripts and other tools allow reportage without the use of original footage in a tawdry manner.

[1] Bowcott, Owen, ‘Charles Taylor and the ‘dirty-looking stones’ given to Naomi Campbell’, theguardian.com, 26 April 2012, http://www.theguardian.com/world/2012/apr/26/charles-taylor-trial-naomi-campbell

Counterpoint 

Court proceedings themselves aren’t, in general, entertaining. Live broadcasts would largely involve lawyers discussing intricate details of issues, including complex points of law. If there was a real prospect of an ICC trial becoming a matter of entertainment, it probably would have occurred with the existing trials.

Even high profile court cases will not get large viewing figures – the UK Supreme Court case in to the extradition of Julian Assange only got 14,500 viewers[1]. Existing regulations for the use of Supreme Court footage in the United Kingdom allow excerpts of the footage to be used in news and current affairs programmes, or educational uses, but bars the use of the footage in light entertainment or other programmes.

[1] Ministry of Justice, ‘Proposals to allow the broadcasting, filming, and recording of selected court proceedings’, gov.uk, May 2012, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217307/broadcasting-filming-recording-courts.pdf at p10

Title 
Witnesses might be identified and placed in danger
Point 

Televising criminal trials may cause a number of problems with witnesses. It may make individuals less likely to give evidence, make them more likely to play to the television audience, or make the already intimidating process of giving evidence in court more so. Also, television broadcasts make it more likely that the identities of anonymized witnesses would leak out – something that has already happened at the ICC in the Ruto-Sang case[1].

The ICC already has problems with witnesses, including allegations of bribing and intimidating prosecution witnesses in the Ruto case[2], which has led to Walter Barasa, a Kenyan Journalist, being subject to an arrest warrant[3]. Ending the televising of trials may go some way to remedy those problems.

[1] Lattus, Asumpta, ‘Evenson: ‘First time arrest warrant has been issued in Kenya case’, Deutsche Welle, 2 October 2013, http://www.dw.de/evenson-first-time-arrest-warrant-has-been-issued-in-kenya-case/a-17132804

[2] Stewart, Catrina, ‘ICC on trials along with Kenya’s elite amid claims of bribery and intimidation’, The Guardian, 1 October 2013, http://www.theguardian.com/world/2013/oct/01/icc-trial-kenya-kenyatta-ruto

[3] ‘ICC seeks Walter Barasa arrest for Kenya ‘witness tampering’, BBC News, 2 October 2013, http://www.bbc.co.uk/news/world-africa-24364778

Counterpoint 

Giving evidence is a traumatic experience, TV coverage or otherwise. TV broadcasts can already have measures brought in to protect witnesses – for instance it could be agreed that they are not directly filmed. Anonymized witnesses at the ICC currently give evidence by video-link, of which the audio is distorted and the image pixelated out, save for those who are permitted to see it, such as the judges and counsel.

The ICC already enters in to arrangements with other states for the protection of witnesses in their physical safety.

Title 
Unruly defendants can play up to the cameras
Point 

Televising the trial can create extra incentives for defendants to attempt to disrupt the process.  During his trial, Saddam Hussein regularly made outbursts and went on political rants – based on Iraqi law, he was able to examine witnesses after his lawyer. This was not new – Slobodan Milosevic tried various antics in front of the (televised) ICTY[1], and Ratko Mladic used those tactics post-Hussein[2]. Milosevic’s approval ratings grew, and he even won a seat in the Serbian parliament while on trial.

A televised trial creates more of a risk of a political hijacking of the trial – something that has been shown to be a successful tactic by Milosevic. This both potentially damages the successor government by giving those on trial a platform and the court itself.

[1] Scharf, Michael P., Chaos in the Courtroom: Controlling disruptive defendants and contumacious counsel in war crimes trials’, University of Galway

[2] Biles, Peter, ‘Mladic’s courtroom antics’, BBC News, 4 July 2011, http://www.bbc.co.uk/news/world-europe-14016622

Counterpoint 

The Hussein trial identified the solution to problematic rants disrupting the trial - the TV feed cut to the judge and faded out Hussein’s sound[1]. This is part of the reason why the ICC broadcasts are on a 30 minute delay, on web and TV access – outbursts, material that should be redacted and other things can be redacted before it reaches viewers.

These antics have been used in trials before the rolling news era, such as in the Chicago Eight  case in the US, the trial of eight activists (one of whose trials was separated) for conspiracy and incitement to riot for offences regarding demonstrations at the 1968 Democratic National Convention in Chicago. One of the defendants, Bobby Seale, launched in to a vicious vocal tirade against the judge, and was eventually bound and gagged in the courtroom. During the trial of the other seven, the defendants tried various antics including blowing kisses to the jury, wearing judicial robes which were removed to reveal police uniforms, not standing when the judge entered the court, and draping a North Vietnamese flag over the defence table[2]. The convictions – including those of the defence counsel for contempt of court – were overturned due to improper jury selection.

Television is not necessary for such behaviour.

[1] Engel, Richard, ‘Saddam trial outbursts, heard but not seen’, NBC News, 5 December 2005, http://onthescene.msnbc.com/baghdad/2005/12/saddam_trial_ou.html

[2] Linder, Douglas O., ‘The Chicago Seven Conspiracy Trial’, University of Missouri Kansas City,  http://law2.umkc.edu/faculty/projects/ftrials/Chicago7/Account.html

Title 
ICC does not have same problems as other legal systems
Point 

The ICC as a court does not have many of the things that a domestic criminal trial would have in terms of disadvantages of televising. Like all other international tribunals, there is no jury, only a panel of professional judges. Judges are going to be less intimidated by there being television broadcasts even if broadcasts of trials typically aim to obscure the identity of the jury. Similarly, there is a competent system of witness protection, and other safeguards.

Counterpoint 

While there is no jury that could be identified, or influenced, by the broadcast, there is still the other problems attached to televised trials – issues of legitimacy, lawyers and defendants acting up etc.

Title 
Open justice – crimes with large numbers of victims
Point 

The principle of open justice, including the right to a public trial[1], is enshrined in many legal systems. The best show of commitment to open justice is to allow everyone to watch it, the best method of doing so is for the trial to be televised. This is all the more the case when the victims can't all be in court, either because of the numbers or because of the distance.

Television coverage will help bring the trial closer to the victims. International criminal trials regularly take place outside the location of the offences, either in The Netherlands such as the ICTY, ICC and Charles Taylor trial, or elsewhere, such as the ICTR sitting in Arusha, Tanzania. It would be helpful in terms of providing closure to the victims, who should be witnessing proceedings.

[1] See the 6th Amendment to the US Constitution, Article 6 of the European Convention on Human Rights

Counterpoint 

Few people would actually watch the entirety of the trial proceedings, most would probably just see clips of the footage of news reports; television news coverage of criminal trials can already take place without actual footage.

While televising trials will engage the victims and their families, televising a criminal trial may inflame tensions as well. During the trial of Saddam Hussein, Hussein made a number of calls to violence during his televised trial. Many of those who are on trial have a significant number of followers (see the widespread support for Uhuru Kenyatta) – television broadcasts would give them a means of communication

Title 
Broadcasting provides a public record
Point 

Unlike many other criminal trials, since Nuremberg a key principle of International Criminal Law is that it aims to set a historical record.  The events that it deals with are important as they are heinous crimes that change regions forever. A trial helps to get to the bottom of events that happened preventing there being multiple conflicting versions of events. This record also can help to act as a deterrent to others considering similar measures.

Broadcasting the trial will bolster this record by providing footage of the trial itself (which may reduce myths about it being unfair, for example) and providing a voice to the victims through their evidence, in their own words, being recorded for posterity and future study.

Counterpoint 

Transcripts and other forms of notation would also set a historical record. While the Nuremberg trials were filmed, live television broadcast was not technically possible, footage was used for newsreels at the time.  The lack of continuous total film footage has not stopped the Nuremberg trial from setting a historical record – the written judgements and transcripts are enough.

Bibliography 

‘ICC seeks Walter Barasa arrest for Kenya ‘witness tampering’, BBC News, 2 October 2013, http://www.bbc.co.uk/news/world-africa-24364778

Biles, Peter, ‘Mladic’s courtroom antics’, BBC News, 4 July 2011, http://www.bbc.co.uk/news/world-europe-14016622

Bowcott, Owen, ‘Charles Taylor and the ‘dirty-looking stones’ given to Naomi Campbell’, theguardian.com, 26 April 2012, http://www.theguardian.com/world/2012/apr/26/charles-taylor-trial-naomi-campbell

Engel, Richard, ‘Saddam trial outbursts, heard but not seen’, NBC News, 5 December 2005, http://onthescene.msnbc.com/baghdad/2005/12/saddam_trial_ou.html

Evans, Martin, ‘Cameras to be allowed in English courts for the first time’, The Telegraph, 12 September 2013, http://www.telegraph.co.uk/news/uknews/law-and-order/10304437/Cameras-to-be-allowed-in-English-courts-for-the-first-time.html

Lattus, Asumpta, ‘Evenson: ‘First time arrest warrant has been issued in Kenya case’, Deutsche Welle, 2 October 2013, http://www.dw.de/evenson-first-time-arrest-warrant-has-been-issued-in-kenya-case/a-17132804

Linder, Douglas O., ‘The Chicago Seven Conspiracy Trial’, University of Missouri Kansas City,  http://law2.umkc.edu/faculty/projects/ftrials/Chicago7/Account.html

Ministry of Justice, ‘Proposals to allow the broadcasting, filming, and recording of selected court proceedings’, gov.uk, May 2012, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217307/broadcasting-filming-recording-courts.pdf

Sherwin, Adam, ‘American-style televised courts move a step closer: Channel 4 to show a British murder trial for first time’, The Independent, http://www.independent.co.uk/news/media/tv-radio/americanstyle-televised-courts-move-a-step-closer-channel-4-to-show-a-british-murder-trial-for-first-time-8541108.html

Stewart, Catrina, ‘ICC on trials along with Kenya’s elite amid claims of bribery and intimidation’, The Guardian, 1 October 2013, http://www.theguardian.com/world/2013/oct/01/icc-trial-kenya-kenyatta-ruto

Scharf, Michael P., Chaos in the Courtroom: Controlling disruptive defendants and contumacious counsel in war crimes trials’, University of Galway

X