Should war criminals be protected? Lawyer Wayne Jordash, the “devilsʼ” advocate at the Sierra Leone and Rwanda tribunals, who is currently investigating Putinʼs crimes in Ukraine, explains

British Wayne Jordash is a royal attorney, a lawyer with many years of experience, who has been helping to investigate Russian crimes in Ukraine since 2015. Jordash has been involved in international humanitarian law for over twenty years, has cooperated with the governments of various countries and the International Criminal Court. He worked at two tribunals — in Rwanda and at the Special Court for Sierra Leone. In both cases, Jordash was a lawyer. In Sierra Leone, he defended Issa Sesay, one of the officers of the United Revolutionary Front. This organization, with the support of Liberian President Charles Taylor, tried to seize power in Sierra Leone. For this, the rebels robbed, raped and tortured civilians. In particular, they chopped off their limbs. Issa Sesay was accused of war crimes and crimes against humanity, although at the end of the war he disarmed his subordinates and ended hostilities in the eastern part of the country. In 2009, after six years of hearings, Sesay was found guilty. He received the longest term at this tribunal — 52 years. Jordash became one of the heroes of the American documentary film War Don Don, which means "the end of the war" in Creole. It contains footage from the court, interviews with prosecutors and defense attorneys, and a conversation with Sesay himself. In the film, Jordash says that Issa Sesai was convicted unfairly. Many years have passed since then, Wayne Jordash has left the bar and is now assisting the prosecution. Babel correspondent Oksana Kovalenko talked to him about what it feels like to defend a war criminal, and why even those whom society considers devils should be defended.

What was your work experience when you took on the Sesai case?

I started working as a lawyer in the UK when I was 25 years old. And represented Issa Sessai at the Special Court for Sierra Leone in 34. But before that I worked on a case at the International Tribunal for Rwanda, defending a local mayor who was accused of genocide and eventually acquitted.

How does a lawyer feel defending a person accused of such serious crimes?

Many lawyers will say that it doesnʼt matter because there is a presumption of innocence and everyone deserves a fair defense and trial. All this is true. But of course you know who your customer is and that matters. If it is a person whose decision you understand or feel that he or she is a victim of circumstances, then you sympathize with him. It can be the other way around. So you have to put your feelings aside and use all your abilities to represent the person as good as possible.

People tend to associate lawyers with their clients. And this is very unfortunate. Defending is an important job, and the more serious the allegations, the more important it is. That is why a fair trial is part of the Geneva Conventions, it is a fundamental right. For me, it is as fundamental as the prohibition of torture. Itʼs easy to defend a noble cause, much harder to defend someone who infuriates us, makes us feel disgusted. But thatʼs when the law is most at risk.

In Ukraine, there is also a problem of lawyer-client association. Is it all over the world?

I know that this is a problem in Ukraine. But it exists in many places. I have done prosecution and defense in at least seven to nine countries and have encountered such problems everywhere.

And in Britain?

The least in Britain. Lawyers in Great Britain are respected and perceived precisely as specialists in the protection of human rights. As a lawyer, you have a duty to your client to fearlessly and unconditionally fight for him. But there is also a duty before the court — not to mislead the court, to tell the truth. You must be independent from the client. This is a kind of defense of a lawyer.

And if you are a lawyer at an international criminal tribunal, you are not considered a human rights lawyer, but a person who obstructs international justice.

How did you build Issa Sesayʼs defense?

At first, we were waiting to see what the prosecution would show: what they have, what exactly he is accused of. When we found this out, they began to receive Sesayʼs comments on this matter. It is important here that the accused has an absolute right not to say anything. The state or an international tribunal has to prove beyond a reasonable doubt that your client is guilty, and you can sit in silence if you want. The accused does not have to prove anything.

Did you believe everything Sesay told you? Did you check his words?

What I believe is not very important to protect the client. He can tell me that the grass is blue and the sky is yellow. And if these are his instructions, I will go to court and prove it. But since it is not, he loses the case. My job is to assess the chances that someone will believe him. That is, in the weed story, my task will be to tell the client that his instructions are ridiculous. And if after that he still insists that the grass is blue, you have to go to court and follow these instructions. But the client must understand that he will lose the case. My beliefs about weed are irrelevant. However, it matters what the judge thinks.

Did Issa listen to you? Were his instructions true?

Not always. But mostly he gave believable guidance that I could work with. And I think a lot of that was because most of what he was accused of was not true. His instructions were more reasonable than the version of the prosecution. He was convicted unfairly, without a shadow of a doubt, by judges who were not interested in the trial, but only in the verdict.

Did I believe everything he said? No. Did I understand why he lied about certain things? Yes, I tried to convince him to tell me a realistic and grounded story. And he was smart enough to understand that I could help him convince the judges. So he mostly listened.

In cases where he lied, how can a lawyer go to court and defend this position?

My job is not to force him to tell the truth, but to convince him to give me reasonable explanations. And the job of the judge is not to find the truth, but to decide whether the prosecution has proven its version. The accused can lie and still win the case because the prosecutors did not prove his guilt.

For example, I am accused of killing a person on the night of January 15. I have an alibi — I was with my lover at the time. But I donʼt want to tell the court that I was with my mistress, so I say that I slept at home. Iʼm lying but that doesnʼt change the fact that I didnʼt kill a person. That is why the prosecution still has to prove that it was I who was at the scene of the crime on the night of January 15 and killed. Most importantly, prosecutors have to prove their case, regardless of whether the accused is lying or not.

But there is justice when the person who committed the crime is punished. For the victims, it is a way to prove the truth and get satisfaction. And if we do not seek the truth in court, how is this satisfaction possible?

This is a good and difficult question. In the end, it is about evidence. Sometimes the prosecution simply does not have the evidence to prove its case, even if the accused is indeed guilty. There is a difference between proof and truth. Sometimes the truth comes out because prosecutors have evidence and they prove it. And sometimes the truth is revealed because the accused has evidence that proves his innocence. And it happens that the truth does not come out, because the prosecutors have no evidence. Or the accused, like Issa Sesay, is convicted, even though there is no evidence, because the judges decide to make a political decision.

In the documentary, you said that Issa is not guilty and that if other rebel leaders were to stand trial, he would only be a witness. Is this your belief or a line of defense?

The trial was to hear the cases of at least three people, Issaʼs superiors, and he would be the main witness. But two of those chiefs disappeared, and one died. So Issa suddenly became the prime suspect.

This does not mean that he is not responsible. But it is important to understand one thing, especially in the context of future trials against the Russian top political and military leadership, against Putin, Lavrov, Shoigu, and Prigozhin. Important witnesses in these processes will be those who are lower in the hierarchy. These are people who followed orders and know exactly what was going on. And in a sense, itʼs a compromise where the prosecution says, “Okay, you have blood on your hands, but youʼre good for us because youʼre allowing the leadership to be persecuted. You are lucky — you become a witness for the prosecution and avoid your own trial." Such an agreement was being prepared for Issa Sesey.

I think he was innocent of almost everything he was accused of. And even if there wasnʼt, the prosecutorsʼ version was poorly supported by evidence and poorly argued. Our defense case lasted seven months. We called more than a hundred witnesses — there has never been a defense case in international criminal law with so many. We listened to President Obasanjo from Nigeria, President Konare from Mali, the head of the UN Peacekeeping Forces, generals from Pakistan, nurses from Sierra Leone — they all said that Sesay was a commander who tried to control the situation, to prevent his people from committing crimes. They said he negotiated a ceasefire and did so with good intentions. He had tremendous support. But instead of analyzing it fairly, the judges rejected all the arguments in 13 paragraphs. In my entire career as both a defense attorney and a prosecutor, this is one of the most unfair things I have ever seen.

That is, Sesay was only an executor of criminal orders? But he could refuse, why didnʼt he?

I think he was high enough in the hierarchy to be judged. And, apparently, he gave some commands to the rebel army. Thatʼs why I donʼt object to him going through the process. The question was whether he gave criminal orders or, on the contrary, tried to stop them.

After all, international criminal law is about those people who were at the top, had the right to choose and the autonomy to act on their own. The less choice you have, the less responsibility. If you are a foot soldier and have no choice, you have far less responsibility than the "Putins" of this world.

When you defended Sesay, did you work with a cool head or did you sympathize with him?

I dedicated six years of my life to this case because I truly believe we deserved a fair trial. And I probably did more then than for the average client.

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Why did this happen?

I think I saw a part of myself in him. He was the same age as me — we were both 34 years old. I saw how different our lives were because of the circumstances we were born into. In 1991, I was graduating from university and about to work as an English teacher in Japan, and he was crossing the border into Liberia and Sierra Leone with an AK-47. I was amazed at how lucky I was and how unlucky he was. And I believe that in the most difficult conditions he tried to remain human.

In war, there is good and evil, there are friends and enemies, and there is nothing in between. And therefore, for society, whoever was on the side of criminals automatically becomes a criminal. Where is the line between justice and political expediency?

This is the role of the court. That is why courts are important, lawyers are important. To impose the mechanism of justice, and not act on emotions. You canʼt do your job poorly because of fear of what society will say.

Why is it important for Ukraine that the trials of Russian criminals be fair and open, that not only the prosecutor, but also the lawyers work well?

A sign of a civilized society is that the attitude towards people with and without power is the same. Whether you were the leader of the Revolutionary United Front, or the president of Serbia, or the president of Russia, when you are accused in a criminal trial, you no longer have power. For me, a fair trial and, accordingly, a strong defense is a sign of a civilized society. And there are few other rights that are just as important.

In part, such a problem exists in the system of international criminal tribunals, because there they consider a guilty verdict to be a sign of success. The system will become mature and effective when it understands that what really matters is that they treat their accused with dignity and respect for their rights to due process of law.

My client Issa Sesay is currently in prison. He has been in prison for 20 years. He will probably serve another 10 or 15 years. This trial took away the best years of his life. For what? So they can say theyʼve succeeded?

Do you communicate with him?

Yes, regularly. I spoke to him last week.

By phone?

Yes, by phone. You know, I represented his interests for six years. You become, I wouldnʼt say friends, but quite friendly. In those six years I saw him more than anyone else.

Are you discussing the events that landed him in prison? Has he changed his mind in any way?

All accused or convicted persons begin to reflect in prison. Of course, as much as he understands the damage his military has done to innocent people, he also understands the damage done to him by a system that is hypocritical, contradictory, and dishonest.

Have you faced any misunderstandings or threats because of your defense of Sesay?

No. That is, misunderstanding on the part of people who thought that I was the devilʼs advocate, I met. But it never escaped me. People who believe that the practice of law is shameful do not understand the importance of due process of law.

And society? For example, the people of Sierra Leone that you met?

The people of Sierra Leone proved wiser than most international commentators. They understood that Issa Sesay had to have protection. In addition, Sesay was a polarizing figure. Half of the country considered him great, and half — the devil. But this second half still believed that he should have received a fair trial.

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When I was preparing for the interview, I consulted with lawyers facing trials of Russian war criminals. And there is a question that worries them: how do you assess the public pressure on lawyers in Ukraine now?

Ukraine has faced aggression that calls into question the survival of every person, the entire society and the Ukrainian nation. And thatʼs why there are so many emotions. This means that the work of lawyers will not be easy.

But I hope that the Ukrainian courts will be able to put aside emotions and focus on the fact that the suspects bear individual criminal responsibility for the crimes committed.

Would you agree to defend Putin?

No. First, my wife would divorce me if I did. And secondly, I am too close to this conflict, because I live in Ukraine, it accepted me. Therefore, my personal sense of revulsion would not allow me to defend him properly. Although my clients were quite high-ranking people in different countries, and they were accused of just as terrible things as those that are done by Putin.

It should be added here that I have not been a lawyer for a long time. I have been doing this for 15 years, and now I prefer prosecution.

I just wanted to ask you what is closer to you — the defense or the prosecution. Therefore, I ask, why the accusation?

Thatʼs a good question. Although I consider the legal profession a noble profession, now is the time to put my skills to use in a different way. In a world dominated by crime, my skills will be useful specifically in the field of criminal prosecution. I believe that when you defend someone like Issa Sesay, you defend both him and the system. Today, I prefer to defend the victims.

You are cooperating with the prosecutorʼs office in the genocide case. Do you think we can talk about genocide in Ukraine?

Exactly.

And how can we prove that this is genocide? I read an article in which you mentioned "cultural genocide". Although the author of the concept of genocide, Rafal Lemkin, included a cultural aspect in it, such a term does not exist in the Convention on the Prevention of Genocide.

I think that Putin planned to erase the Ukrainian identity, not to physically destroy the Ukrainian people. If he could convince Ukrainians to accept Russian citizenship and submit to Russia, that would suit him.

But he wanted to destroy the leadership of the state — President Zelenskyi, the government. And then, as evidenced by the nature of the crimes, if it succeeded, Putin would force the rest of the Ukrainian people to swear allegiance to Russia. This is what I would call cultural genocide — committing crimes aimed at destroying Ukrainian identity.

When this failed, the Russians turned to physical genocide: they included ex-military men, opinion leaders, intellectuals, human rights defenders, and journalists among those to be exterminated — all those who would be crucial to the organization of resistance to Russian plans. And over time, when these people became critically numerous, it turned into genocide.

It looked like this: if I canʼt own you, I will destroy you. In order to establish the fact of genocide, it is necessary to establish whether the entire group was targeted, or a part of the group. And if a part, it should be significant.

How to define this significance?

It is either a matter of quantity or a matter of quality. In some regions, it was a quantitative issue — these are Bucha, Mariupol. And, for example, in Kherson — this is a qualitative issue. There, they attacked the leaders and key people of the group in order to undermine the confidence of the rest of the population.

Since cultural genocide is not part of the convention, can we use this argument in court?

Now opinions differ. There are experts who say that cultural genocide is not the physical destruction of a group and is therefore not genocide. There are others who say that it is genocide after all.

It is necessary to look at the situation comprehensively. We no longer doubt that there is an attack on the groupʼs cultural existence. The next question is whether this is accompanied by attempts to endanger the physical existence of the group or its part, which can already be characterized as a violation of the convention on genocide.

It is necessary to see whether the intention has changed from the desire to culturally destroy Ukraine to the intention to physically destroy a part of the Ukrainian nation. For me, the answer is almost certainly yes.

You were a lawyer at the International Tribunal for Rwanda. Is it possible to apply some experience of this tribunal in Ukraine?

I think one of the reasons why some commentators doubt the existence of genocide in Ukraine is precisely because they focus on the genocide in Rwanda. They say that the genocide in Rwanda was different from the genocide in Ukraine because in the Rwandan context Hutu extremists wanted to exterminate the entire Tutsi group. But I donʼt think that approach is appropriate here. Because I donʼt think that the Russian plan is to destroy all Ukrainians. His task is to kill as many Ukrainians as necessary to achieve the overall goal, namely the destruction of Ukrainian identity.

Translated from Ukrainian by Anton Semyzhenko.

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