Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

 Asymmetrical haircuts Justice. Update with Janet Anderson and Stephanie Vandenberg in partnership with Justice info.net. 

Janet: 00:44  Hello and welcome. It’s just Janet today, unfortunately, because Stephanie wasn’t able to join this recording. Now, I’m hotfoot back from last week in The Hague at the International Criminal Court, where I was not watching the former president of the Philippines, Rodrigo Duterte, and listening to the allegations of crimes against humanity against him at the confirmation of charges hearing. He wasn’t there. Also, the last time I was looking at Duterte, which was the initial appearance, he just appeared on a video screen. And that was all because he had waived his right to be there.

Janet: 01:22  But behind the scenes, there were also a number of filings going backwards and forwards about his health, about the extent to which he was able to follow the hearings. And then sometimes you get briefings directly from different lawyers to tell you things you can’t use as a journalist, but it’s interesting to hear what they have to say.

Janet: 01:44  So that altogether was making me think about the number of times that I’ve been watching different cases at international tribunals where old men, and they are men, haven’t been there because maybe they’re ill, or maybe they’re just not able sometimes. And often the illness is being very heavily debated.

Janet: 02:08  So before we go any further, and when I introduce who I’ve got to talk to this time about it, I did ask Stephanie, obviously, whether she wanted to join in. And she decided that she couldn’t resist, and that she rose from her sickbed and determinedly recorded this little set of musings on putting old people on trial.

Stephanie: 02:33  Hello everyone. While I cannot be there to record this episode, I am, even in my recovery from post surgery itching, to get my two cents in about putting geriatric men on trial, mostly.

Stephanie: 02:49  And I wanted to talk a little bit about my experience. I followed the Milošević trial at my beloved ICTY, the International Criminal Tribunal for the former Yugoslavia. That was the first trial where I saw such an old man be put on trial, and essentially also these issues with aging and health become a big thing: is he fit to stand trial?

Stephanie: 03:11  Now, in the end, what happened with Milošević, this was a theme throughout the entire trial, lawyers acting for him, and he himself, kept saying that he was ill. He wanted to get treatment in Russia. He wanted to get treatment in Serbia. And in the end, what we saw mostly is that the judges sometimes adjusted the sitting schedule and had fewer days, but they never actually ruled him unfit to stand trial. But it was always a big question.

Stephanie: 03:40  Now, the second case I saw, also at the ICTY, was the case of Mladić, which was very interesting to me. That’s former Bosnian Serb general Ratko Mladić, who also said he was, or whose lawyers also said he was, unfit to stand trial. And they could actually prove that he had had cognitive decline. There were doctors who told the court that he had had a cerebral infarct, I think it was, and so some damage with recollection and things like that. And the really interesting takeaway I got from that was that, in that case, the judges ruled that you don’t have to function at 100% of yourself. You don’t have to be as good as you were before. But the standard for fitness to stand trial is whether you can still follow the trial and assist the defence.

Stephanie: 04:35  So when I hear a lot of arguments from lawyers that their client is not as good as he used to be, or he has had cognitive decline, the standard that I learned from the ICTY is not: is he worse than he was? But: is he so bad that he can’t follow the trial?

Stephanie: 04:53  But I’m curious what our expert has to say about that as well.

Stephanie: 04:57  The final case that I follow closely, and that is continuing, is the case of Félicien Kabuga at the Rwanda tribunal. Now, he was ruled unfit to stand trial because doctors said he has advanced dementia. He is in his late 80s. But there you have the interesting thing that you have a ruling that he’s unfit to stand trial, but there’s nowhere for that man to go. And it shows you that even if judges rule that you’re unfit to stand trial, it doesn’t necessarily mean that you’ll be released, because you kind of go into some kind of limbo. In the Kabuga case very specifically, he has nowhere to go. He doesn’t want to go to Rwanda, or he can’t go to Rwanda because medically it’s impossible, and they can’t find a country in the European Union to take him for now. So I’m wondering also: if you fight to get somebody declared unfit to stand trial and you succeed, does it mean automatic release in a lot of systems?

Stephanie: 06:01  Finally, and this is maybe an additional question, one of the things that I wonder about is that I remember in both the Milošević, the Mladić, and the Kabuga case, it all came up that cognitive decline is also a sign of aging. And these are old men. And when the lawyers made the point that we shouldn’t be putting old men on trial, the prosecution, and sometimes the judges also, made the point that if these guys hadn’t been on the run for so many decades, then we wouldn’t have to try such old men and these cognitive declines wouldn’t be an issue.

Stephanie: 06:41  So if we look very specifically at the Duterte case, whose lawyers also say he has cognitive decline, even though judges have now ruled him fit to stand trial, I wonder if that will apply in the same way. Because there was a sealed indictment against Duterte and his crimes are kind of more recent, so he hasn’t been on the run from the ICC for many years. So the argument that he’s elderly and therefore cannot stand trial, but that that’s his own fault, doesn’t really go. So I wonder what you think about that.

Janet: 07:17  So thank you so much, Stephanie. I really couldn’t do it without you, couldn’t make the podcast, and I hope that you get well and that you’re able to join the next recording.

Janet: 07:27  So I did want to talk to someone who had been really thinking about this and considering the ins and outs, and I found Caroline Davidson. Hi, Caroline.

Caroline Davidson: 07:36  Hi. Thank you. Thank you for having me.

Janet: 07:39  Caroline is the Norma J. Paulus Professor of Law at Willamette University. Some may know or recognize her name from her time at the Yugoslav tribunal, where she was part of the prosecution team for a number of different cases. So just to start with, Caroline, where is Willamette? Is it Portland?

Caroline Davidson: 08:01  So Willamette is in Salem, Oregon, which is the capital of Oregon, about an hour from Portland.

Janet: 08:10  Okay. So, Caroline, one of the reasons I asked to talk to you is because you’d written some papers about this. And then one that I tracked down, and we’ll put a link in the show notes to it, you wrote, and I’m just going to quote from the abstract at the very beginning, in this very inimitable academic style: “One of the most salient characteristics of international criminal justice is delay. So whether at international tribunals, hybrid internationalized courts, or domestic ones, seldom do courts reach or adjudicate atrocity crimes quickly.” So reading that, I was thinking: okay, so these are big crimes that we’re talking about. They take a lot of time. And that’s why we end up sometimes with these 80 plus year olds in court. I mean, really, that’s enough. Get over it. Just accept the fact that delay means we’re going to end up with old people on trial.

Caroline Davidson: 09:08  I’m not sure that’s the argument I was trying to make in the paper, but that’s certainly something that I think is true. It’s the simple reality of these cases. Not all, not all. There are occasionally trials that happen considerably closer in time to the events. But there are a host of reasons why there’s delay before they begin: And sometimes it’s political circumstances because atrocity crimes, and I think this is one of the main points that I have tried to make in that paper and in other papers, are adjudicated not just at international tribunals. They’re also adjudicated in domestic courts. And so domestic political circumstances may not be conducive to trials at given points. When I say conducive, there may be a completely hostile judiciary and just not a political environment that allows for the prosecution of those crimes. So that is yet another factor that can cause delay. So it could be a defendant who’s absconded. It could be a tribunal that just takes a while to get to somebody. And it could be domestic political circumstances that mean they don’t get to someone right away, and probably a variety of other issues I haven’t mentioned.

Janet: 10:21  I mean, I think what was in my mind also is the idea that with atrocity crimes, there’s not really a statute of limitations. If we think back particularly to people trying to get hold of Nazis way back in the day, and then they just kept on following them later and later and later, we ended up with this idea of it really doesn’t matter how old somebody is, that they should always go on trial for these things. These things should never just be left. Is that also partly at play?

Caroline Davidson: 10:58  I think yes. The caveat there is that sometimes people are prosecuted for atrocity crimes, but the crime category that they’re actually tried for domestically is just an ordinary crime. And then there come into play difficult issues related to statutes of limitations. At least in Chile, for example, I keep coming back to the Chilean example because it’s one I’ve studied, this was an issue. Their argument for getting around the statute of limitations for at least some of the crimes was the fact that international human rights law does not permit a statute of limitations, and international criminal law does not permit a statute of limitations for atrocity crimes, and that the underlying crimes were effectively atrocity crimes.

Caroline Davidson: 11:41  But you’re quite right: on the international level, it’s been made pretty clear through human rights law and through international criminal law decisions that there’s no statute of limitations for atrocity crimes. It’s legally possible to go after people even years after the crime, which might not be the case in a domestic jurisdiction for a less serious crime.

Janet: 12:02  Why don’t you tell us more about the example from Chile and what it is that the domestic courts decided there? Was this something that kind of went backwards and forwards between different layers of the court and then was finally decided?

Caroline Davidson: 12:16 It’s an issue that took years, but there were efforts to start cases brought by victims and victims’ attorneys really in the immediate wake of the dictatorship. And for years, they went nowhere. There was a hostile judiciary that was still left over from the dictatorship and, in general, just a political climate that did not allow these cases to go forward. Over time, through a host of different circumstances, one, changes to the domestic judiciary, two, the filing of charges against Pinochet in Spain, which likely galvanized action in the Chilean courts in general, the courts became more receptive to these international law arguments to get around both the amnesty that was in place in Chile and the statute of limitations. So ultimately, quite a number of cases have gone to trial. They started out with cases relating to people who’d been disappeared, moved eventually on to political executions, and then eventually on to torture and, most recently, to the issue of sexual violence. But that took decades and likewise created this same issue of having elderly defendants.

Caroline Davidson: 13:42  There’s a particular case in Chile that got a lot of attention in the press relating to General Orozco. Orozco was hauled off to jail to serve his prison term when he didn’t turn up for it, at 92 years old, in his pajamas, as the press liked to note. And it triggered a debate about whether or not this was a fruitful path to go down, and the appropriateness of prosecuting these really elderly human rights abusers. And, as you might imagine, the response to it was very divided. Some were of the view that you stated at the beginning of the podcast: that it doesn’t matter how much time has elapsed, we need to send the message that these crimes are never acceptable, and therefore they should be treated as ordinary criminals and go to jail. And others were of the view that society needs to move on from this and this isn’t achieving much, and also marshalled arguments related to the human rights of the elderly in opposing the punishment of these elderly detainees. And in particular, there were a couple of them that were extremely elderly. So this was a debate that played out in the press that I think mirrors the debate that we see on the international level. And it’s not unique to Chile. There’s been the same thing with the Ríos Montt case in Guatemala, other cases in Argentina, and of course the German trials of extremely elderly Nazis who, somewhat counterintuitively, were tried as juveniles because at the time they committed their offences, they were either under 18 or around 18.

Janet: 15:24  What this is reminding me of is the couple of podcasts that we’ve done on Argentina during the last month. And in one of the cases that we were looking at, which was about corporate crimes, they said, well, half of the defendants aren’t there anymore because they are either dead or too ill to go on trial. And you just start to wonder, yeah, what’s the point? Because it really is the end of any process, isn’t it? When somebody’s died, then there is nothing that goes further with this. But I can hear you being very loyally one side and then the other. Do you feel that it’s important just to look at the circumstances of each individual case? Or do you think it’s important to have a principle?

Caroline Davidson: 16:10  For me, at least, there’s a hard line in that the point at which a trial is manifestly incompatible with the medical needs of the defendant, and the point at which they are truly unable to, the standard in the US is “aid and assist” in their own defense, it’s a little different under the international scene, but it’s the same concept, understand what is happening, I don’t think a trial should take place. I do think that violates human rights norms relating to fair trial and human rights norms relating to treatment of persons with disabilities, which is an issue that’s come up in the Kabuga case. Nevertheless, I think if there’s a point at which the person truly cannot participate, I don’t think a trial should proceed. Similarly, if incarceration in the particular circumstances that the person is in, whether that’s in the UN detention unit or in some jail domestically, is flatly incompatible with the medical needs of the person, and they’re flatly not able to allow the person to go about their daily existence in a humane manner, I don’t think they should be incarcerated. And I say that fully appreciating how enormously dissatisfying that must be to victims. But that’s kind of weirdly the easy case, because we’ve described an extreme where it’s flatly incompatible and they really don’t understand what’s happening, or they really can’t be in prison without it being inhumane. Of course, many of these cases are more subtle than that, where you’ve got some degree of cognitive decline and some degree of chronic illness combined with acute illness that winds up affecting the pace of trials and the conditions in the physical space of trials. And there, I think things get more complicated. The human rights norms around this scenario get more complicated. So there, I think courts have to engage in this messy task of trying to figure out: is this person truly so either mentally ill or physically ill that they really can’t understand what’s happening or participate meaningfully? Or are they malingering? Or is there some up and down such that there’s a way to craft a trial that is compatible with the medical needs of the defendant and their cognitive comprehension?

Janet: 18:56  Just last week in the Duterte trial, we had Wednesday off, which was very nice, but it was Wednesday off for Duterte. But he wasn’t there Monday or Tuesday either, or Thursday or Friday. So it did feel a bit odd. How should judges make those kinds of decisions? I mean, judges are not medical doctors. What I’m conscious of is that there’s become a whole, I think “industry” is too strong a word to use, but there is a collection of experts and expertise that they have to draft in to assess people. We often get very conflicting results out of those different experts. How do judges make those decisions, I suppose, is the general question.

Caroline Davidson: 19:42  Well, I think it’s no easy task. I don’t envy the judges trying to sort this out. And I think all they can do is use the tools at their disposal. So: try to find impartial experts and then try to parse out whether the medical state of the defendant means that they are incapable of aiding and assisting, comprehending what’s going on in the trial, and communicating with their lawyers.

Caroline Davidson: 20:11  In the Kabuga case, and in fact litigation involving various defendants, you see different approaches being taken between the majority and the dissent. At least the dissent in the Trial Chamber in Kabuga contended that their approach was different from the majority’s. I’m not sure how different it actually was, but at least the dissent says it was. The dissent accused the majority of deferring excessively to the experts and not applying the legal standard. There’s this multifactorial test that looks at the different ways that a person’s potential cognitive decline might impede their understanding of and participation in the trial. And the dissent, at least, was saying: look, we need to be making our own independent determination as to whether or not this person is competent to stand trial using these factors, and not just defer to the experts’ conclusions on that score. At the end of the day, I think what judges have to try to do is find impartial experts, do their best to listen to those experts, and ensure that there is frequent enough and complete enough evaluation of the accused such that they are able to get a good read on their competency. So I think it’s doing their best to have frequent and robust assessments of the accused’s medical state.

Janet: 22:01  I had a quick look again at the variety of things that came up in Kabuga, and I can tell you, as a journalist covering it, it can get quite conflicting and contradictory because you do get very different sets of assessments. And then, as you say, you have a dissenting opinion that says, no, we should do it a different way. In that case, finally, it does look like there is no disagreement fundamentally on all sides that this is a person who is not capable. If we turn from that to a case which I think is somewhere more in the middle, at least during the trial, which would be the case of Mladić, I looked through again the detail of that. So this is long. First of all, it took an enormous amount of time before he was arrested, so he was relatively old when he was arrested. But it took an enormous amount of time to go through all of the charges because these are huge, heavy, large charges. There was a lot of medical detail that came out during the trial because that was part of the discussion. So I’m just wondering also about privacy issues there. But if I look at the kinds of details that there were, we had kidney stones, pneumonia, strokes, hernia, cardiovascular disease, progressive chronic disease, more strokes, renal decline, lung inflammation, multi organ chronic disease. Yet all the way through, the judges said: yes, he is able to understand sufficiently. If you spoke to the defence counsel, I can’t say who said what, but maybe they would beg to differ. I mean, they certainly made those arguments in court. Was he fit to stand trial? It’s a really long catalogue of an old man.

Caroline Davidson: 24:11  I don’t think I can make that determination. One, I probably haven’t reviewed all of his medical records as extensively as you.

Janet: 24:19  No, we can’t because we don’t have his medical records.

Caroline Davidson: 24:24  And actually, interestingly, at least in Duterte, and I believe in Kabuga, although perhaps less so, they are redacting the purported illness. So perhaps that’s just unique to this time period, or perhaps it’s a different approach of the ICC to protect the medical privacy of defendants more. But the level of detail is different from what we’ve seen in some earlier filings out of the residual mechanism. Look, what I think is interesting about Mladić, or one of the things that was interesting about Mladić, is that at the beginning it was the prosecutor who was concerned about Mladić’s health and who was seeking to separate the trial into two different trials and have a sequential trial for fear of a Milošević situation. They seemed concerned, understandably, that they might get through a tremendous amount of evidence, anticipating the potential size of this case, which involved four JCEs: one involving Srebrenica, one involving the siege of Sarajevo, one involving attacks on municipalities, and the broader JCE to ethnically cleanse Bosnia of non Serbs. An enormously complex and lengthy case, as you’ve said. And so the prosecutor was concerned that there was a risk, as with Milošević, that they wouldn’t get to judgment. Ultimately, the Trial Chamber did not agree to that. They said, no, you can streamline your case, which they did, but did not permit the sequential trial. 

Janet: 26:00  So at the end of the day, Mladić just had to keep facing the trial, and the judges had to keep discussing his health issues and accommodating them, but he was throughout considered able to instruct his counsel. And that was, as far as I could see from a distance, the basic standard.

Caroline Davidson: 26:27  I guess there are a few different fair trial rights at issue underlying all of this, and I think the test attempts to address them. One is the right of the accused to be present at trial. Another is the right to the assistance of counsel. The right to presence is in fact captured in the statutes of the tribunals, but the court notes that it can be waived by a defendant who chooses not to be present. Now, the Kabuga Appeals Chamber likewise stated that someone being medically unable to be there is not the same thing as a person choosing to waive their right to presence. So again, there are a couple of different things in the mix here. One of them is whether or not they have a right to be present. Another is whether they are able to understand the proceedings and aid and assist in their own defense. Again, they look at a variety of different things: can they understand the proceedings? Can they communicate with defence counsel? Can they plead? All the rest of it. So there are a host of factors, but ultimately that is looking at this relationship with counsel and understanding of proceedings, which is a distinct issue from can they be present. But with Mladić, yes, he did seem to make it through an enormous case and is continuing to, I might add, continue to fight these issues. So this issue of elderly defendants is not restricted to the issue of trial. There’s the ongoing issue of confinement, whether that’s during trial or after they’ve been convicted. They often will seek either provisional release or humanitarian release. This is something that Mladić attempted and failed on relatively recently. So these issues creep in in a variety of different ways: whether or not trial can occur at all, if it does occur, what the pace of that trial should be, what the physical circumstances of that trial should be, and then from there, what the circumstances of confinement are that are appropriate for this person. On the one hand, there are their medical needs, etcetera, and on the other hand, the fact that they’ve, in some instances, been convicted of extremely grave crimes. And the court has said with the issue of humanitarian release, so in its decision related to Mladić, that there’s the issue of early release, which looks at, as one of its factors, the gravity of the crimes. But the issue of humanitarian release is divorced from the gravity of the crimes.

Caroline Davidson: 29:19  Now whether or not this winds up playing a part in judges’ minds, notwithstanding the fact that the standard doesn’t permit that, I can’t say. But in theory, the humanitarian release inquiry doesn’t look at the gravity of the underlying crime. It looks at the medical needs and whether it is inhumane to be detaining the person in the circumstances in which they find themselves. Which, again, is going to depend place to place, on the degree to which a prison or a jail is able to accommodate the physical needs of the defendant or of the convicted person.

Janet: 30:00  We seem to keep circling around a similar set of issues each time we tackle this. What else should we be considering that I haven’t managed to introduce in my limited questions so far?

Caroline Davidson: 30:12  Well, I guess there, as I see it, are two competing sets of norms. There’s a tension here between the human rights of the accused and the human rights of the victims. And this is not unique to this issue. There are always these tensions between the fair trial rights of defendants and the desire to express condemnation of these extremely grave human rights violations and war crimes. And the victims have a right to access to justice and a right to the truth and all sorts of rights relating to the courts looking meaningfully at these charges. And really the flip of that is that states have a duty to investigate and prosecute. The international courts have framed this as the accountability norm or the fight against impunity. So there’s that set of norms over there. And this has been really prevalent coming out of human rights courts, not international criminal courts, but human rights courts, since the 1990s, really: this notion that there is an obligation to investigate and prosecute serious violations of international law and human rights abuses. On the other hand, of course, are all the fair trial rights associated with running a criminal trial. And those don’t go away. At the end of the day, at the ICC and these other ad hoc tribunals, these are criminal trials that are underway. And it’s this sort of fine balancing act of trying to carve the most human rights promoting pathway through these different sets of norms. I guess beyond the competing legal frameworks, I think it does bring us back to the question of why we have these tribunals in the first place. What is this whole endeavour all about? With ordinary, and let’s say probably younger and healthier defendants, we’ll call them ordinary, though that’s perhaps not fair, the typical purposes for these tribunals and these trials are retributive justice, general deterrence, and so on. We need to give defendants their just deserts. That’s sometimes framed as the victims deserving justice, but it’s a retributive argument. There’s also general deterrence. We want to communicate to would be genocidaires or would be war criminals or people thinking of committing crimes against humanity that sooner or later they will be held accountable. So don’t do it. And I think the typical purposes of punishment that we see in a criminal trial generally, and an international criminal trial specifically, play out a little differently when you’re dealing with an elderly and infirm defendant. Now, I think the retributive argument still works to a degree, though it’s fairly wimpy retribution, because on the one hand, a sentence of a few years can become a life sentence. But what we’re really usually looking at is a really long sentence or a life sentence becoming a sentence of a few years. So the retribution is maybe not as robust as victims might want, but it’s some form of retribution. And then from there, the general deterrence argument maybe works to the extent that you think international criminals can be deterred in the first place. But certainly things like incapacitation, or the deterrence of this particular person, may be less forceful when you’re dealing with someone really elderly. But I think we need to be thinking a little bit: why are we doing this at all? And to what degree do those purposes align with the trial and punishment of a very elderly person? And I guess in terms of who’s making these decisions, at the end of the day the prosecutor has discretion to bring charges or not, or to drop charges. There is a significant amount of prosecutorial discretion here. And ultimately, of course, the judges have to decide whether the person can meet the standards for proceeding to trial and whether the conditions of confinement are adequate.

Caroline Davidson: 34:59  I guess the only other thing that I would maybe point out is that this is not just transpiring at international tribunals. This is a debate that is also unfolding domestically. I think it is important to be conscious of the potential trickle down or spillover effects of these debates onto the conditions of confinement for ordinary criminals, for people who’ve committed ordinary crimes. In Chile, for example, this debate about humanitarian release of elderly prisoners has gotten really bogged down in what to do with elderly prisoners who’ve been convicted of human rights violations. I think it’s at least worth being aware that what we do over in this international space may have an impact on ordinary prisoners. We may want to be careful about the message that we’re communicating in terms of, you know, “punish at all costs, this person must suffer.” Again, I don’t think that’s where the judges are coming from. I think that the judges and the lawyers involved are really doing their best to navigate an extremely difficult situation. But obviously, people who believe strongly in retributive punishment here may be advocating for something that they may not feel as comfortable about when applied to people convicted of ordinary crimes. And there’s a risk of this spillover, which is true of really everything that the court does. In my view, these international tribunals, one of the most important things they do, though this is not always listed, is promote respect for human rights. And that message is undermined if they conduct trials in a way that does not comport with human rights.

Caroline Davidson: 36:59  I guess the one other thing, going back, that occurs to me we didn’t discuss with respect to Kabuga is this human rights issue and the defendants’ rights issue. One of the most interesting things going on in the discussion of what to do with Kabuga was that the prosecutor, and ultimately the Trial Chamber, in wanting to craft a special procedure for Kabuga, were citing human rights norms relating to persons with disabilities. So they were making the argument, in terms of the defendant’s human rights, that the defendant ought to have the opportunity to face the charges against him. And of course, the defendant was perfectly happy, it appeared, to waive those rights, because the defendant’s counsel on appeal, at least as far as we can tell, was saying: no, we should stay the proceedings and release him. So we’ve got an interesting use of not, in this instance, victims’ rights, but the rights of this defendant based on the Convention on the Rights of Persons with Disabilities. Again, this is not in the Convention itself, this is in a committee report relating to that Convention, but there are at least potential human rights norms in play there where the committee doesn’t like these fitness determinations at all. They don’t like people not being permitted to face the charges against them, in particular when this leads to their confinement.

Janet: 38:36  Wow. There’s a lot that I’m not going to have time to unpick with you and go through in all the detail. I’m going to wrap up for the moment and say my main conclusion out of this is that it is really worthwhile for me to carry on reporting on this. This is an issue that cuts to the heart of why we’re doing what we’re doing. And the detail of the cut and thrust and the arguments around it, even though sometimes I find myself throwing my hands in the air and thinking, for goodness’ sake, just make a decision, it sounds like the detail really does matter because it is a matter of rights in all senses, on all sides. So I really should. I’m glad I’m paying attention to it, and I will pay more attention. I always ask at the end: is there something that you wanted to have said that you haven’t had the chance to say? Is there something that you would like to pick up on?

Caroline Davidson: 39:31  I think you managed to fit it all in there. I think you’ve picked up the main theme that I don’t think there’s an easy and tidy way out of this problem. If they want to bring these trials, they’ve got to keep navigating these thorny issues.

Janet: 39:42  We always try to finish the podcast with: do you have any recommendations for our audience out there? It can be stuff you’re reading, listening to, or watching, either connected to the field or whatever it is that takes you away from it. As I left Stephanie last week, I managed to see her. She said yes, she was catching up on Bridgerton season whatever it is, because, you know, one does. But what do you do, Caroline, or what would you like to recommend?

Caroline Davidson: 40:15  Oh boy. Well, I just saw a movie I really enjoyed. It’s a very sweet movie, The Ballad of Wallis Island. I just thought it was such a great movie about moving on and reconnecting with one’s art. So I enjoyed that a lot. And this is a really out of left field American one: especially if you have a teenager in your life and like to watch snippets with a teenager, the videos from Please Don’t Destroy, which is the segment on SNL. My 13 year old and I just have a fantastic time watching those. I think they’re really very twisted and very funny.

Janet: 40:58  Great. Sounds perfect. 

Caroline Davidson: 41:05  A very big switch from atrocities, to say the least. It is a nice way to see the humor in the world.

Janet: 41:07  Great. I will check those out. Thank you very much. And thank you so much, Caroline, for making time to explain some of the ins and outs. I quite like doing these kinds of podcasts that we can link to whenever we have, again, another elderly defendant, because I’m sure we’ll have another one and another one and another one. And we can just say, look, here are some of the issues laid out. And I’m going to put Chile back on my list again. Obviously, we’ve done Pinochet in some forms, but there are many other parts of the Chilean justice landscape that we haven’t looked at. So I will see what we can do about that. Thank you.

Caroline Davidson: 41:43 My pleasure. Thank you so much for having me.

[OUTRO MUSIC]

This was asymmetrical haircuts, your internationa​​l justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net, an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.