Michael G. Karnavas is a former federal and state assistant public defender.
He has spent the past few months in The Hague, Arusha, Tanzania, and Kigali, Rwanda
observing the International Criminal Tribunals for the former Yugoslavia and Rwanda,
and researching Rwanda's restructuring of its judicial system.
fiat justin ne pereat mundus1
(let justice be done lest the world should perish). . . I had to do this. If I had refused I would have been killed together with the victims . . . when I refused they told me, if you are sorry for them, line up with them and we will kill you too.
May 31, 1996, before a packed public gallery, separated from the courtroom by panes of bulletproof glass, the audience at the International Criminal Tribunal for the former Yugoslavia (ICTY) listened to Drazen Endemovic's grisly account of genocidal acts. Endemovic, 24, a Croat serving in the Bosnian Serb army, pled guilty for his involvement in the summary execution of unarmed Muslim men in July 1995, after Srebrenica, the UN protected "safe area," fell to Bosnian Serb forces.
Though only a foot soldier taking orders, under duress of death, Endemovic is still responsible for his conduct under the statute of the newly established, ad hoc ICTY. Endemovic will indeed be punished for violating international humanitarian laws, though because of his cooperation and the circumstances surrounding his conduct, the potential maximum life sentence will probably be mitigated.
In the past, international human rights law has been applied in tribunals such as the European Court of Human Rights and the Inter-American Court of Human Rights. The context, however, has been civil rather than criminal. Though the Geneva Conventions of 1948 and 1949 envisioned that, should the grossest of criminal acts such as genocide and crimes against humanity reoccur, trials would be held by "such international penal tribunals as may have jurisdiction,"2 the United Nations never established an international criminal tribunal. While the Nuremberg and Tokyo Tribunals did in fact prosecute war criminals, these tribunals were neither criminal nor international, but rather military and multinational, established by the four major victors of
World War II.3
Establishment of an Ad Hoc ICT
In May 1993, the UN Security Council, sidestepping "normal" protocol, established the ICTY "for the prosecution of persons responsible for violations of International Humanitarian Law committed in the territory of the former Yugoslavia since 1991."4 To appreciate this ambitious undertaking, the swiftness with which it was decided and created, and the Herculean results accomplished thus far, one has to understand the backdrop of events that precipitated the Security Council, rather than the General Assembly of the UN, to establish overnight an ad hoc criminal tribunal for the Yugoslavian events and then later for the well-documented organized genocide in Rwanda.5The year 1991 was the hallmark for the lifting of the Iron Curtain, the crumbling of the Berlin Wall, the blossoming of democracies in Eastern Europe and the beginning of the end of the country currently referred to as "the territory of the former Yugoslavia" (then known officially as Socialist Federal Republic of Yugoslavia).
Between 1991-1992, the former Yugoslav republics carved out their borders and declared themselves as sovereign states.6 Of course, the ancient ethnic rivalries and hatred that had been so tightly contained by Marshal Tito and his successors erupted.
As soon as fighting among the former republics broke out, there were reports of widespread violations of international humanitarian law, prompting the Security Council through Resolution 764 of July 13, 1992, to reaffirm that all parties to the conflict are bound to comply with their obligations under international humanitarian law, particularly the Geneva Convention of August 13, 1949. This resolution also reaffirmed that persons who commit or order the commission of "grave breaches" of the covenants are individually responsible.7
From Bosnia-Herzegovina, there continued to be reports of mass forcible expulsion and deportation of civilians, imprisonment and abuse of civilians in detention centers, deliberate attacks on noncombatants, hospitals and ambulances, and signs of "ethnic cleansing." The Security Council, through Resolution 771 of August 13, 1992, expressed grave alarm for the second time, demanding that all parties to the conflict cease and desist from all breaches of international humanitarian law. This resolution further called upon states and humanitarian organizations to gather evidence of grave breaches of the Geneva Convention and international humanitarian law and make it available to the Security Council. More importantly, it warned that parties, including the military forces, must comply with the provisions of the resolution, or the Security Council could take further necessary measures under Chapter VII of the UN Charter.8
However, reports of inhumanity in Bosnia-Herzegovina continued. Resolution 780 of October 6, 1992, created an impartial commission of experts to investigate, examine and analyze any information of violations of international humanitarian law.9 The commission's interim report concluded that there was evidence of wilful killings, ethnic cleansing, mass killings, torture, rape, pillage, destruction of cultural and religious property and arbitrary arrests. The commission recommended that an ad hoc international criminal tribunal be established.10
On February 22, 1993, the Security Council, exercising its authority under Chapter VII of the UN Charter, established the ITCY by passing Resolution 808 (1993).11 This novel approach would be repeated in the creation of an ad hoc International Criminal Tribunal for Rwanda (ICTR).12
By invoking its special powers under Chapter VII of the UN Charter, the Security Council discarded the traditional method of establishing an international organ -- by the General Assembly treaty ratification -- as being slow, cumbersome and, perhaps more importantly,
ineffective:13, 14 The ultimate objectives of the tribunal are threefold: (1) to do justice; (2) to deter further crimes; and (3) to contribute to the restoration and maintenance of peace.15 Echoing these objectives, the president of ICTY said:
[F]ar from being a vehicle of revenge, it is a tool for promoting reconciliation and restoring true peace. If responsibility for the appalling crimes perpetrated in the former Yugoslavia is not attributed to individuals, then whole ethnic and religious groups will be held accountable for these crimes and branded as criminals. . . . Eventually whole groups will be held guilty of massacres, tortures, rapes, ethnic cleansing. . . . Clinging to feeling of "collective responsibility" easily degenerates into resentment, hatred and frustration and inevitably leads to further violence and new crimes.16
Structure of ICT
The structure of the ICT is set out in the Statute of the International Tribunal.17 There are three major components: 1) The Chambers, composed of two trial chambers and an appeal chamber; 2) the Prosecutor, and 3) a Registry, servicing the chambers and the prosecutor (Art. 11).Three judges sit in each trial chamber and five judges sit in the appeals chamber (Art. 12). These judges are elected by the General Assembly from a list of candidates submitted by the Security Council. They serve a term of four years with eligibility for re-election (Art. 13). The president of the ICT is elected by the judges and presides over the appeals chamber (Art. 14).
The prosecutor, having independent powers to investigate and prosecute, is appointed by the Security Council on nomination by the Secretary General. The prosecution staff consisting of assistant prosecutors is appointed by the Secretary General on the recommendation of the prosecutor (Art. 16).
ICTY was established without any rules of procedure, evidence and detention, without any guidelines for the protection of victims and witnesses and without the assignment of defense counsel for indigent suspects and accused. The 11 judges, many of whom had never met or even heard of each other before their appointments, were entrusted with drafting and adopting an entire international criminal justice system. (Art. 15).
November 13, 1993, the judges met for the first time and immediately began to discuss the principles that should underlie the rules of procedure and evidence.18 According to the ICT president, in less than four months -- with the help of the Office of Legal Affairs of the UN Secretariat, as well as proposals made by states and non-governmental organizations (NGOs),19 -- the ICTY drafted and adopted rules of procedure and evidence, rules governing detention, guidelines on the assignment of defense counsel and a working framework for a Victims and Witnesses Unit within the registry.20
What ultimately emerged was a cross-pollination of the adversarial and inquisitorial legal traditions,21 though the trial process is, without question, adversarial.22 The drafters chose the adversarial approach over an inquisitorial/civil code tradition even though the Nuremberg and Toyko trials had no precedental value.23
The prosecutor is on equal footing with defense counsel, a situation which is euphemistically being referred to as "equality of arms." Suspects, as well as the accused, enjoy the presumption of innocence (R. 62, 87); the right against self-incrimination (R. 90); the right to free legal representation, if indigent (R. 42); the right to an attorney before questioning ("Miranda rights") (R. 63, 92); the right to a public hearing (R. 78); the right to be present at trial (no trials in absentia) (Art. 21;1.(d)); and the rights to confrontation and presentation of evidence (R. 85).
In reviewing the rights accorded to suspects and accused, it is clear that the drafters adopted many of the principles and aspirations of the International Bill of Human Rights set in the 1948 Universal Declaration of Human Rights and the 1966 International Covenants on Human Rights, particularly the International Covenant on Civil and Political Rights. By doing so, the ICTY, to its credit and against all natural instincts to seek retribution, embraced the abolition of the death penalty.
ICT Procedure
The prosecutor is responsible for investigating, obtaining evidence and submitting indictments to a judge, who will evaluate the evidence to determine whether there is sufficient cause to confirm the indictment (R. 47, 84-85). After the pretrial stage, the defense is entitled to investigate/collect evidence and obtain all relevant evidence (R. 66). Both sides are reciprocally bound to disclose documents and witnesses (R. 67).No "technical" rules of evidence apply. All "relevant evidence" is admitted, except for evidence that would be inadmissible as more prejudicial than probative under Federal Rule of Evidence 403 (R. 89). Evidence is also inadmissible if it was "obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings" (R. 95). A rape shield statute disallows any evidence of previous sexual conduct of the complainant and does not require corroborative evidence for a complainant's testimony (R. 96). Evidence of a consistent pattern of conduct is admissible (R. 13). Lastly, the judges have the discretion to order the production of additional or new evidence (R. 98) and to question witnesses at trial (R. 85(B)).
What is strikingly absent from the 125 rules of procedure and evidence is the prosecutorial discretion to grant immunity or "plea bargain." Thus, an individual who has acted under duress, even if he/she has cooperated with the prosecution, can only obtain a pardon or a sentence commutation from the president of the tribunal (R. 125).
If an indictment has been issued and, after due diligence, the prosecutor is unable to secure an arrest, the indictment is presented to the trial chamber for reconfirmation. If a prima facie case is established, an international warrant is issued through Interpol. Additionally, the prosecutor may preserve testimonial evidence -- though it is not a trial in absentia. Any state that fails to cooperate is reported to the Security Council by the president of the tribunal (R. 61).
One interesting aspect of both tribunals (ICTY and ICTR) is that they do not have exclusive jurisdiction. States may prosecute individuals for war crimes or crimes against humanity, though the tribunal has retained primary concurrent jurisdiction (Art. 9, R. 8-13). The tribunal, at the prosecutor's request, may ask a national court to defer a case to the tribunal even if the proceedings have commenced. To avoid double trials of the accused, the principle of non bis in idem has been adopted. If an accused has been tried by the tribunal, he/she cannot be tried by a national court. However, if an accused has been tried by a national court, the tribunal can re-prosecute if:24
1) a person was tried for a crime within the purview of the tribunal, but the national court treated it as an ordinary crime; or
2) where the prosecution at the national court was not impartial and independent, i.e., shielding the accused from internal criminal responsibility.
The appeal process is straightforward. Either side may appeal claiming error of fact or law (R. 108). A new trial may be granted "in appropriate circumstances" (R. 117 (C)). Newly discovered evidence which may have been a decisive factor either for the prosecution or defense may be considered "if the interest of justice so requires" (R. 115).
Lastly, in making the tribunal truly international, or perhaps universal in nature, the rules permit amici curiae (R. 74). Human rights organizations, NGOs, scholars and nation-states have used this privilege regularly.
Process Thus Far
Remarking on the tribunal's goals of applying international humanitarian law for the prosecution of those who planned, directed or perpetrated crimes in the former Yugoslavia, ICTY President Cassesse invoked the aspirations expressed by U.S. Chief Prosecutor Justice Jackson at the opening of the Nuremberg trials November 21, 1945:25This trial represents mankind's desperate efforts to apply the discipline of law to statesmen who have used their powers of state to attack the foundations of the world's peace.
Within two years, the ICT went from a lofty aspiration -- a chimera that had been bantered around for over 45 years -- to a fully operational, state-of-the-art, reality. When its 11 newly appointed judges met for the first time on November 17, 1993, ICTY consisted of a meeting room and three other rooms on loan from the Carnegie Foundation in the Peace Palace, the headquarters of the International Court of Justice at The Hague.26 The budget was $5.6 million for six months, with additional financing to be reviewed and approved thereafter.27 The initial prosecutor-designate withdrew in February 1994, and it was not until July 1994 that the Honorable Richard J. Goldstone of South Africa was appointed.28
Despite these limitations and setbacks, by August 1995, the ICTY had transformed an insurance building into a courthouse. The courtroom featured sophisticated technological equipment that allowed simultaneous translations in English, French and Serb-Croat. Electronic stenographic equipment immediately converted the English language into text. This courtroom also included a camera control booth with four zoom cameras. A detention facility was in place. A legal framework had been drafted and approved. The registrar's office was fully staffed, dealing with the public and tending to the day-to-day needs of the three chambers, the prosecutor's office, defense counsel, witnesses and victims.
Also set in motion, with the encouragement of the tribunal, was the implementation of legislation by nation states enabling full cooperation with the tribunal.29 The prosecutor's office was in full operation as well. Its investigative team was able to amass sufficient evidence, inspite of the then ongoing conflict, to secure numerous indictments, including those of Radovan Karadzic, the Bosnian-Serb leader, and Ratko Mladic, the commander of the Bosnian-Serb army, for genocide, crimes against humanity, violations of the laws and customs of war and grave breaches of the 1949 Geneva Convention.
April 26, 1995, only17 months after the 11 original judges met, Dusko Tadic made his initial appearance before ICTY on charges of grave breaches of the Geneva Convention, violation of the laws and customs of war and crimes against humanity. His trial began May 7, 1996.
Some Emerging Problems
1. The Legitimacy of ICT
Tribunals are ad hoc in nature, limited in time and scope. Though the need for a permanent ICT is axiomatic, given historical evidence of the periodic, uncurbed human predilection for genocide, ethnic cleansing and acts against humanity, the method used by the Security Council to create such an international organ raises questions about the tribunal's legitimacy.The Security Council ignored the acceptable and recognized approach because of its concerns about the length of time it would take the General Assembly to hammer out a satisfactory treaty.30 A more important concern was that even if the required number of states ratified the treaty, "there could be no guarantee that ratification [would] be received from those states which should be parties to the treaty if it is to be truly effective."31 It appears that the Security Council usurped General Assembly powers so that states such as the republics of the former Yugoslavia or Rwanda would have little or no voice in either the establishing of the setting of parameters for these ad hoc tribunals.
Although Rwanda was in favor of an ICT, as a member of the Security Council, it voted against Resolution 955 for numerous reasons. First, the tribunal sits in Arusha, Tanzania, not in Rwanda. Rwanda felt that those who committed crimes against its citizens should face justice publicly in Rwanda. Second, Rwanda argued that the death penalty should be imposed as the only commensurate punishment for genocide. Third, Rwanda insisted that the jurisdiction of the tribunal should not exclude those involved in planning genocide prior to 1994. (Resolution 355 covers genocidal planning and acts from Jan. 1 to Dec. 31, 1994).32
The legitimacy of the ICTY has already been challenged on three grounds in The Prosecutor v. Ousko Tadic: the illegal foundation of the international tribunal, the wrongful primacy of the international tribunal vis-a-vis the national courts and the lack of jurisdiction.33 The trial and appeal chambers found no merit in the defense arguments that the Security Council abused its powers by denying the General Assembly its legitimate role in debating, drafting and adopting an international organ such as the ICT.
Both chambers unhesitantly stretched the UN charter as if in a procrustean bed. They simply found that under Art. 24(1), the members of the UN have conferred primary responsibility on the Security Council for the maintenance of peace and security; that Chapter VII, along with other chapters of the Charter, set out the Security Council powers; and that under Art. 39 of Chapter VII, the Security Council is required to "make recommendations or decide what measures shall be taken in accordance of Art. 41 & 42 to maintain or restore international peace and security." The judges concluded that since Art. 41 allows the Security Council, short of the use of force, to decide what measures it might take, the creation of an ad hoc criminal tribunal was within the Security Council's mandate. However, the measures listed under Art. 41 do not encompass, either explicitly or implicitly, the creation of an ad hoc criminal tribunal.34
The selective approach to ad hoc international prosecution by the Security Council begs the question: Why, if entrusted with such "powers," has the Security Council done nothing in other, equally repulsive genocidal situations in Cambodia, East Timor, Lebanon, Afghanistan and Chechnya? Given the selective prosecution of ICTR, the Security Council was perhaps correct in concluding that Rwanda, a state which should be a party to a treaty for the establishment of a tribunal, would have voted against ratification -- at least insofar as the treaty would call for a tribunal in its present form, where the trials are for a select few (60-80 according to the registrar) and are held outside the venue where victims of crime can witness the deliverance of justice.
Rwanda's Tutsi-led government strongly objects to prosecutions being held in Arusha, Tanzania. The Rwanda government wants to prosecute "Colonel Apocalypse" Theoneste Bagorosa. Bagorosa is the alleged mastermind behind the notorious death squads known as "Zero Network" which began the genocide of Tutsis around 1992.35 The death squads may have also been responsible for killing ten Belgium soldiers. Rwanda's Vice-President and Minister of Defense contends:
Belgium lost ten men here compared to one million we lost at the hands of this man. And the tribunal can only give him a life sentence, while we are sentencing smaller figures to death. He should be tried in the aggrieved country, and if found guilty, he should hang.36
The tribunal's jurisdiction and legitimacy will be challenged, if not ignored, when states such as Rwanda refuse to accept the tribunal's "primacy" concurrent jurisdiction over their national court -- as will probably happen if the Rwandese apprehend alleged criminals such as Bagorosa. The lofty principle of non bis in item is only applicable if states choose to comply. Nothing will stop a former Yugoslav republic or Rwanda from re-prosecuting or even executing someone who may have been acquitted by the tribunal. Nor is it likely that the national court of Rwanda will defer prosecutions, as it must, to the tribunal. ICTY President Cassesse depicts the tribunal as powerless, "like a giant who has no arms and no legs. To work . . ., [the tribunal] needs the artificial limbs of the state authorities."37
The tribunal is relying on the goodwill of the states. It may get precious little if states, such as Rwanda, feel that the belated ICT is interfering with its national interests and judicial system. After all, the UN did sit back and watch the genocide take place.38 Rwanda has every reason to be suspect of the UN. Alain Destexhe, former Secretary General of Mèdecins sans Frontieres (Doctors Without Borders), argues convincingly that the UN and the countries that were in a position to intervene (the United States, France, Belgium) are themselves guilty of violating international law since the massacres amounted to "genocide" as defined by the signatories of the covenants on genocide. They had a responsibility to act and they did not -- at least not until the genocide was over. Moreover, according to Destexhe and others, these countries rushed to assist the perpetrators as they retreated to refugee camps in Zaire and Tanzania.39 It remains to be seen how much legitimacy Rwanda will accord the tribunal.
2. Lack of Enforcement Agencies
Unlike national courts, the tribunal has no law enforcement agencies it can enlist to execute arrest warrants, search and seize evidence, compel witnesses to give testimony and search the scenes where crimes allegedly occurred. Further, the tribunal has no long-term witness protection program. States are required to cooperate, but in practice, cooperation is lacking. For example, the Federal Republic of Yugoslavia (FRY) has stonewalled ICTY's request to turn over Karadzic and Mladic, who are allegedly responsible for, among other things, interning thousands of Bosnian Muslims and Croats who were subjected to torture, murder, rape, sexual assault, the shelling and sniping campaigns against citizens of Sarajevo, Svebrenica and Tulzle, deporting Bosnian-Muslim and Croat citizens and taking UN hostages for use as "human shields." Rule 61 has been invoked and international warrants for the arrests of Karadzic and Mladic have been issued. Accordingly, FRY is required to cooperate. Yet the Security Council seems, and perhaps is, powerless to coerce or punish FRY.
3. The Rules Change as Trials Proceed
Rule 6 of the Rules of Procedure and Evidence allows for amendment of the rules by judges, the prosecutor or the registrar. By September 1995, 41 of the 125 rules had been amended. The rules continue to be refined as the proceedings continue.40 While two of the amendments (Rule 66A and 68) benefit suspects and the accused, most of the changes benefit the prosecutor and strengthen the rights of victims and witnesses.It is unclear how these changing rules will hamstring the defense. The trend so far indicates that it will become increasingly more difficult for the accused. A good example is the trial chamber's recent decision in the Tadic case to allow certain prosecution witnesses total anonymity from the defense. The witness may testify by using voice-and image-altering devices that mask his/her identity. The extent to which this interference with the due process rights of the accused is best summarized by the dissenting remarks of Judge Sir Ninian Stephen:
. . . It should be appreciated what full anonymity of a witness could entail.... The cumulative effect would permit, for the testimony of these important and valuable witnesses, hearings in camera, the name and other identifying data of a witness withheld from the defense and the testimony given from a special room linked to the courtroom by closed circuit television and the use of voice altering devices and the image of the witness either so distorted as to be unrecognizable or not transmitted at all to the defense. The consequences could be that to the defense the accuser would appear as no more than a disembodied and distorted voice transmitted by electronic means. Yet this could be the means of bringing before the chamber evidence which the prosecution has described as either very important or important, evidence which could lead to the accused's conviction on very serious charges.41
It is also true that the ICTR rules are slightly different than the ICTY rules. At this point the differences are insignificant, though with the power granted to the judge, prosecutor and registrar under Rule 6, it is not unlikely that two distinct and divergent tribunals will emerge. The acting administrator and deputy registrar of the Arusha Tribunal are quite emphatic that Arusha will be different than The Hague. Rather than achieving uniformity and consistency, the confidence-building ingredients for a permanent ICT, the end result might be ad hoc justice from ad hoc tribunals, or worst yet, a "European" ICT and an "African" ICT.
4. Discovery Production
The prosecutor is required to make witness statements available no less than 30 days before trial. Given that the alleged conduct took place in a war-torn and somewhat distant territory, the time limitations are unrealistic. Unlike the prosecutor's office, which has field investigators and field offices in Belgrade, Sarajevo and Zagreb, the defense has none of these luxuries. Any investigation by the defense will be hampered by logistics, time and resources, as well as the dangers of investigation in a sniper-ridden, multi-ethnic, volatile region.Even without a time restriction, the defense is at a distinct disadvantage. Given the modest budget for the tribunals, it is unlikely that funds will be available to launch a full-fledged defense investigation. Furthermore, NGOs and human rights organizations are flocking to assist victims, witnesses, the prosecutor and the tribunal.
The defense bar, however, is not likely to have such good fortune. As one European human rights lawyer stated, "I could care less about these accused . . . I don't want to see them get off." This seems to be the prevailing attitude among those who champion civil and human rights -- at least the ones I have met at The Hague and in Arusha.
5. Choice of Defense Counsel
The ICT trial procedure is based primarily on the American adversarial model. Defense counsel is on equal footing with the prosecution, delivering opening and closing statements and conducting direct and cross-examination of witnesses. For the civil code defense counsel, these tools are foreign. Very few are trained to cross-examine witnesses. (When I mentioned this to a prominent Belgium lawyer, he exclaimed, "God help us from the American legal system. It is not an export item. We see on television what you do with cross-examination. We don't want at the end of these trials for no one to be found guilty when a million [people] have died.") In the civil code tradition, it is an anathema to even investigate and interview witnesses prior to trial. The investigating judge does the pretrial investigation/interrogation and the trial judge conducts a lengthy and comprehensive examination of all witnesses, including the accused.For the common law defense counsel, particularly the American lawyer, cross-examination is viewed as the lynch pin to a proper defense. The art/science of cross-examination is more than making one-fact declarative statements with an inflection. Rather, cross-examination is about the principles of structuring, chaptering, setting up the impeachment and the incremental scoring of points with each witness that allows for the telling of the defense story at closing.
The complexity that cross-examination poses to a civil code practitioner is perhaps best illustrated in the Tadic case. Tadic requested and was appointed Michail Wladimiroff, one of Netherlands' finest and most respected criminal defense lawyers. Unfortunately for Tadic, in the Dutch system, a lawyer never asks questions at trial. Realizing the importance of cross-examination, Wladimiroff brought "experts" from abroad to train him on the skills of cross-examination. After one week of training, Wladimiroff, to his credit, decided that he was still ill-equipped to defend Tadic. Consequently, Wladimiroff requested the registrar to appoint a "cross-examination expert" -- a British barrister to conduct the cross-examination on behalf of Tadic.42
The complexity of international law is another important consideration. While the ICT rules are straightforward, one need only look at the intellectual depth of the issues raised thus far in the Tadic case to realize that a comprehensive knowledge of international law is required to practice effectively before the tribunal. Simply being a criminal defense lawyer with extensive trial experience is not enough. Moreover, international law cannot be learned overnight.
Wladimiroff, commenting to a panel of lawyers at an international criminal law seminar, admitted that after his appointment to the Tadic case, he was at a loss. He did not know where to begin, given the volume of legal texts on international law. The complexity of the legal principles found in the Statute and Rules of the ICT is not beyond the ken of the criminal defense lawyer. Understanding of the Byzantine structure of the UN, and the legal theories and historical evolution of international law, customs, philosophies, quasi-precedents, etc., does, however, require extensive knowledge of public international law. Wladimiroff explained that only after months of plowing through treatises on the Nuremberg and Tokyo trials and the UN and public international law did he truly begin to understand the legal issues attendant to the establishment of the ICTY.43 Indeed, his pretrial motions reflect hard work, scholarship and creativity.
These points are mentioned because the list of attorneys on the defense panel come from different legal traditions. Some have little or no criminal defense experience, let alone knowledge of public international law. This poses a problem. The accused, if he/she qualifies, is given a list of attorney names from which to choose his/her counsel. The qualification required for defense counsel is minimal -- simply being a member of a bar in good standing is sufficient. The ICTR recognizes these problems and the registrar intends to address them.44 Given the high caliber of and screening process for the prosecution team, one must question the low qualifications for defense counsel.
6. Composition of Trial Chambers
The judges comprising the two trial chambers come from different legal traditions as well. Already, impressions are being formed at ICTY on the different approaches each chamber takes in conducting proceedings. U.S. Federal District Court Judge Gabrielle Kirk McDonald presides over one chamber. Judge Claude Jorda of France presides over the other chamber. As mentioned, civil code judges are very active in court. They are highly trained in the skill of questioning witnesses. Since the rules permit the judge to request the production of additional evidence and to question witnesses, Judge Jorda and others from the civil code tradition will actively question witnesses. This could lead to the appearance of partiality since the judges are generally inclined to assist the prosecution. Nevertheless, the extent to which these different approaches will affect outcomes may turn out to be negligible. As Judge McDonald points out:The Rules, especially Rule 81, give the Trial Chamber wide latitude with respect to the receipt of evidence. In this Rule, perhaps more than anywhere else in the Rules, there is a departure from some common law systems where technical rules of evidence predominate. Sub-rules 89(C) and (D) provide that the only limit on the receipt of relevant evidence is that it has probative value, and it may be excluded only if it is substantially outweighed by the need to ensure a fair trial.45
A Dream Come True
The ICT may be setting the precedent for a future international criminal court that will be permanent. Undoubtedly, it has laid the groundwork by drafting and adopting an entire framework for an international criminal justice system based on the principles set in the 1948 International Declaration of Human Rights and the 1966 International Covenant on Human Rights. However, questions over the legitimacy of creating ad hoc tribunals may persist, particularly if ICTY and ICTR take divergent paths or if international concerns overshadow or disrespect national sovereign rights -- as in the case with Rwanda where the recognized government of Rwanda wishes to give primacy jurisdiction to its own courts so justice can be done where genocide was committed.Finally, one cannot help but wonder about the propriety of selecting 11 judges from various legal traditions and entrusting them with enormous discretion to create an entire international criminal justice system -- not only the framework, but the rules that they themselves would have to judge by, rules that, as we see, are still being written and rewritten as the trials proceed.
For the judges, receiving this kind of power and discretion must have been like a gift from Heaven -- a dream come true.
NOTES
1. ICTY President, Antonio Cassesse, invoking Hegel's maxim -- from G.W.F. Hegel, Elements of the Philosophy of Rights, 1821, First Annual Report of the International Tribunal for the prosecution of persons responsible for serious violations of International Humanitarian Law committed in the territory of the Former Yugoslavia since 1991. (First Annual Report) A/49/342; S 1994/1007, 29 Aug. 1994. Par. 130.2. The Geneva Convention, 1949.
3. For an interesting discussion of the Nuremberg & Tokyo trials see B.V. Rolings, The Law of War & the National Jurisdiction Since 1945, in Hague Academy of International Law, collected courses (1960); Trial of the Major War Criminals before the International Military Tribunal, Nuremberg 14 November 1945-1 October 1946 (Nuremberg, 1947), Vol.1.
4. Security Council Resolution 808 (1993), 22 February 1993; Report of the Secretary General, 3 May 1993.
5. James C. O'Brien, in analyzing the creation of the ICTY, concluded that the Security Council took a "careful incremental approach" through a protracted, four step process involving: "(1) condemnation; (2) publication; (3) investigation; and (4) punishment". James C. O'Brien, The International Tribunal For Violation of International Humanitarian Law on the Former Yugoslavia, 87 Am Int'L. 639, 640-42 (1993).
6. Sovereign States stemming from the Socialist Federal Republic of Yugoslavia are:
Republic of Croatia, Oct 8, 1991
Republic of Slovenia, Oct 8, 1991
Former Yugoslav Republic of Macedonia, Nov. 17, 1991
Republic of Bosnia-Herzegovina, March 6, 1992
Federal Republic of Yugoslavia (Serbia-Montenegro), April 27, 1992
International Conference on the Former Yugoslavia, Arbitration Commission, Opinion No.11, Paris 16 July 1993, p.3.7.Security Council Resolution 764 (S/Res/764(1992)).
8.Security Council Resolution 771 (S/Res/771(1992)).
9.Security Council Resolution 780 (S/Res/780(1992)).
10.Report of the Commission of Experts (S/25274).
11.Security Council Resolution 808 (S/Res/808(1993)).
12.Security Council Resolution 955 (S/Res/955(1994) calls for the ICTR to prosecute "persons responsible for genocide and other serious violations of international law committed in . . . Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring states between 1 January 1994 and 31 December 1994."
13. Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993); S/25704, 3 May 1993.
14. Security Council Resolution 808 (1993); S/25704, 3 May 1993 (emphasis added).
Par 19 The approach which is the normal course of events, would be followed in establishing an international tribunal would be the conclusion of a treaty by which the States parties would establish a tribunal and approve its statute. This treaty would be drawn up and adopted by an appropriate international body (e.g., the General Assembly or a specially convened conference), following which it would be opened for signature and clarification.
Par 20 The treaty approach incurs the disadvantage of requiring considerable time to establish an instrument and then achieve the required number of ratifications for entry into force. Even then, there could be no guarantee that ratifications will be received from those states which should be parties to the treaty if it is to be truly effective.
Par 28 . . . the Security Council would be establishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the Charter, but one of a judicial nature. This organ would, of course, have to perform independently of political consideration; it would not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions . . . . the life span . . . . would be linked to the restoration and maintenance of international peace and security in the territory of the Former Yugoslavia.
Par 21 . . . the International Tribunal would have the task of applying existing international humanitarian law.
15.Security Council Resolution 827/S/Res/827(1993)).
16. First Annual Report, par. 33.
17. The Statute was originally published as Annex to the Report of the Secretary-General pursuant to par.2 of Security Council resolution 808(1993); S/25704.
18. First Annual Report, par. 33.
19. Id. at par. 55.
20. Id. at par. 3
21. In the inquisitorial or civil code tradition, the task of obtaining evidence and the interrogation of pretrial witnesses, falls on the investigating judge, who after preparing the file, turns the case over to a trial judge who will actively engage in the initial interrogation of the accused and witnesses. Defense counsel are prohibited from conducting independent investigations or questioning witnesses in preparation for trial. All of this is done by the investigating judge, who acts as a shield between the prosecutor and accused. At trial, the prosecutor, who shares the same status of a judge (magistrate), sits at the same level as the judge, and of course, is afforded great deference. Having observed this process from an Anglo-American point of view, it virtually appears that a conviction is a foregone conclusion. The 11 ICTY judges abandoned this cumbersome and obviously less advantageous process for the defense, opting for a model more akin to the American bench trial approach.
22. The trial proceedings set out in Rules 84-88 are as follows:
1. Opening statements by parties
2. Prosecution presents witnesses and testimonial evidence.
3. The defense cross-examination.
4. Defense presents its case/prosecution cross examination.
5. Rebuttal by prosecution/surrebuttal by defense.
6. Closing Arguments.
7. Deliberation in camera -- 2/3 majority required.
8. Sentencing -- if accused is found guilty.
23. Id. at par. 71,
24. Statute, Art. 10 - b.
25. Address of Antonio Cassesse, President of the International Criminal Tribunal for the Former Yugoslavia to the General Assembly of the United Nations, 7 November 1995.
26. First Annual Report, par. 31.
28. Id. at par. 37.
29. For a comprehensive outline on the ICTY's accomplishments see Second Annual Report A/50/365; S/1995/728, 23 August 1995.
30. Report of the Secretary General pursuant to par. 2 of Security Council Resolution 808 (1993) S/25704, 3 May 1993, par. 19.
31. Id. at par. 20.
32. For a cogent analysis of the two ad hoc tribunals see S. Grant, Dispensing International Justice: The Yugoslav and Rwandan Criminal Tribunals, Interights Bulletin Vol 9 No 2, (Summer 1995).
33.The Prosecutor v. Dusko Tadic, Case No. IT-94-I-T, Defense Motions, June 23, 1995.
34. Trial Chamber Decision on the Defenses Motion -- Jurisdiction of the Tribunal 10 Aug 95; The Prosecutor v. Dusko Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995. Article 41 reads as follows: "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon he Members of the United Nations to apply such measures. They may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
35. For a comprehensive analysis on the history and planning of the genocide on Rwanda which left 15 million dead and led 30 percent of Rwanda's population to flee to neighboring states, see Gerard Prunier, The Rwanda Crisis: History of a Genocide 1959-1994, New York: Columbia University Press (1995)
36. Colonel Apocalypse by Andrew Purvis, Time, June 10, 1996.
37. Address of Antonio Cassesse, President of the International Criminal Tribunal for the former Yugoslavia to the General Assembly of the United Nations, 7 November 1995.
38. UN Secretary General Boutros Ghali, in deploring the UN's passivity on Rwanda, cried out:
Le Monde, (27 May, 1994).We are all to be held accountable for this failure, all of us, the great powers, African countries, the NGOs, the international community. It is a genocide. . . . I have failed. . . . It is a scandal.
39. Alain Destexhe, Rwanda and Genocide in Twentieth Century, New York: New York University Press (1995).
40. Second Annual Report par. 20.
41. Separate Opinion of Judge Steven on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses. Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, 10 August 1995.
42. This account was given to the author by the Registrar's Office while the author was observing the Tadic trial in June 1996.
43. This was told to the author by a coordinator for the Arusha School of International Criminal Law and Human Rights, where Mr. Wladimiroff spoke.
44. The Registry for the ICT-Rwanda informed the author that for their trials, the Registrar will restrict the list to the finest qualified criminal lawyers, with a proportional representation from all countries.
45.Opinion of Judge McDonald on the prosecutor's motion requesting protective measures for victims and witnesses. Dusko Tadic Case No. IIT-94-I-T, 10 Aug, 1995, par. 74.