Improving the operation and functioning of the international criminal tribunals

American Journal of International Law

Volumn 94, Issue 4, 2000, Pages 759-772

  Mundis, Daryl A ^a  

^a NONE

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EID: 0034557877     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2589804     Document Type: Article

References (121)

1. Hereinafter, respectively, "ICTY" and "ICTR." Collectively, the tribunals shall be referred to as the "International Tribunals." All citations to the rules refer to the rules of the ICTY unless noted. International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, as amended (July 14, 2000), UN Doc. IT/32/Rev. 18 (2000), obtainable from ICTY Web site 〈http://www.un.org/icty〉 [hereinafter ICTY Rules].
2. The ICTY's 1999 budget was $94,103,800, including 848 staff members, and the ICTR budget was $68,531,900, including 820 personnel.
3. The longest trial to date at the ICTY is the recently concluded Blaškić trial, which began on June 24, 1997, and concluded with the rendering of the judgment on March 3, 2000.
4. Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634 (1999) [hereinafter Experts' Report].
5. GA Res. 54/239 (Dec. 23, 1999); GA Res. 54/240 (Dec. 23, 1999). These comments were to be transmitted, via the Advisors Committee on Administrative and Budgetary Questions (ACABQ), to the General Assembly. See Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/850 (2000) [hereinafter Comments on the Experts' Report]. Annex I to this document contains a consolidated point-by-point response of the three organs of the ICTY and a response by the ICTR chambers unless otherwise noted. Annex II contains the prosecutor's general observations regarding the Experts' Report, and Annex III is the ICTR registrar's brief comments on the report. In response to the Comments on the Experts' Report, the ACABQ presented a further report to be considered by the General Assembly and the Security Council when determining which course of action, if any, to take with respect to improving the operational efficiency of the International Tribunals. Report of the Advisory Committee on Administrative and Budgetary Questions, UN Doc. A/54/874 (2000).
6. Report on the Operation of the International Tribunal for the Former Yugoslavia, Submitted by Judge Claude Jorda, President, on Behalf of the Judges of the Tribunal, UN Doc. A/55/382-S/2000/865, Annex I, at 5 (2000) 〈http://www.un.org/ga/55/lista55b.htm#8〉 [hereinafter Jorda Report]. President Jorda presented his report to the Security Council on June 20, 2000, and several delegates engaged him in a discussion on the future of the ICTY. See UN Doc. S/PV.4161 (2000).
7. UN Docs. A/53/755, A/53/756 (1998); See also UN Doc. A/C.5/53/SR.37. para. 43 (1998) (statement of the chairman of the ACABQ before the Fifth Committee at its 37th meeting).
8. UN Docs. A/53/651, paras. 65-67, A/53/659, paras. 84-86 (1998).
9. GA Res. 53/212 (Dec. 18, 1998); GA Res. 53/213 (Dec. 18, 1998).
10. The expert group consisted of Jerome Ackerman, former president of the UN Administrative Tribunal (U.S.); Pedro R. David, judge of the Cámara National de Casación Penal (Argentina); Hassan B. Jallow, justice of the Supreme Court (Gambia); K. Jayachandra Reddy, former public prosecutor and judge of the Supreme Court (India); and Patricio Ruedas, former UN under-secretary-general for administration and management (Spain).
11. Experts' Report, supra note 4, para. 4; see also id., paras. 5-9.
12. See id., paras. 9-11.
13. See Comments on the Experts' Report, supra note 5, Note by the Secretary-General, para. 6.
14. See id.
15. Former ICTY President McDonald, one of the original judges of the ICTY, has acknowledged that during the initial ICTY plenary in late 1993, "[o]ne of the most contentious issues that the ICTY Judges considered while drafting the [rules] was whether trials in absentia should be allowed." Gabrielle Kirk McDonald, Trial Procedure, and Practice, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW: THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURTS 547, 554 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000).
16. Experts' Report, supra note 4, Recommendation 3. The recommendations of the group of experts appear in a section following paragraph 265 of the report entitled "Executive Summary and Recommendations." Because of differences in pagination of the electronic versions available at the time of writing and the lack of an official printed version, the recommendations will be cited below simply by number.
17. As reflected in the Rome Statute of the International Criminal Court, July 17, 1998, Art. 03(1), UN Doc. A/CONF. 183/9*. reprinted in 37 ILM 999 (1998), corrected in UN Doc. PCNICC/1999/INF/3* [hereinafter Treaty of Rome]; the ICTY Statute, infra note 18; the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Doc., at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994) [hereinafter ICTR Statute]; and the International Covenant on Civil and Political Rights, Dec. 16, 1966, Art, 14(3) (d), 999 UNTS 171.
18. Statute 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, UN Doc. S/ 25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statute]; see also ICTR Statute, supra note 17, Art. 20 (4) (d).
19. Experts' Report, supra note 4, Recommendation 3.
20. For example, Zdravko Mucić, one of the four accused in the Celebici case, was assigned at least eight attorneys during the course of his trial.
21. See Comments on the Experts' Report, supra note 5, Annex I, para. 9 (prosecutor basing her opposition to this recommendation, in part, on concerns relating to the protection of victims and witnesses).
22. Although not required explicitly by the rules, the practice at the ICTY has been for detainees making a motion for provisional release to obtain a guarantee from the state or entity (i.e., Republika Srpska) that they will be returned to the Tribunals custody when ordered by the trial chamber to appear for trial (or for any other reason). Notwithstanding the silence of Rule 65 with respect to state guarantees, the judges apparently give great weight to this factor in reaching a decision on provisional release: "[I]n those cases in which no guarantee is given by the relevant State, a release will not be granted. p M., para. 5.
23. The first two, Miroslav Tadić and Si móaric, were ordered released on April 19, 2000. See Prosecutor v. Simić, Application lor Provisional Release, No. IT-95-9-PT (Apr. 19, 2000), obtainable from ICTY Web site, supra note 1. In the same case, Milan Simić, the third accused, was ordered released on May 29, 2000. See Prosecutor v. Simić, Application for Provisional Release, No. IT-95-9-PT (May 29, 2000), obtainable from ICTY Web site, supra.
24. Jorda Report, supra note 6, at 20, para. 83.
25. Comments on the Experts' Report, supra note 5, Annex I, para. 6.
26. Id., paras. 10-11.
27. The expert group noted, however, that since Rule 61 proceedings do not result in a determination of guilt or innocence, it is difficult to conclude that they are similar to trials in absentia. See Experts' Report, supra note 4, para. 57.
28. Id., Recommendation 4(a). The ICTY will consider this proposal. Comments on the Experts' Report, supra note 5, Annex I, para. 12. The prosecutor supports this proposal as a means of avoiding the need to recall witnesses. Id., para. 15; see also id., para. 13.
29. Experts' Report, supra note 4, Recommendation 4(a).
30. Id., Recommendation 4(b). The ICTY judges will consider this proposal in a future plenary and will also discuss the possibility of allowing the president to substitute a judge for the confirming judge if the prosecutor consents. Comments on the Experts' Report, supra note 5, Annex I, para. 16.
31. No Rule 61 hearings have been conducted at the ICTR; hence, this recommendation is not pertinent to that Tribunal. See Comments on the Experts' Report, supra note 5, Annex I, para. 14.
32. Id., para. 15.
33. Experts' Report, supra note 4, para. 71.
34. Id.
35. Id., Recommendation 6; see also Comments on the Experts' Report, supra note 5. Annex I, para. 26. The ICTR judges will consider a proposed amendment to the ICTR Rules addressing this issue. Sec id., para. 30.
36. Experts' Report, supra note 4, para. 71, & Recommendation 6. Both the ICTR judges and the prosecutor argued against incorporating specific national practices such as the "rocket docket" procedure into the practice of the Tribunal, at least without additional information. See Comments on the Experts' Report, supra note 5, Annex I, paras. 29, 30.
37. Experts' Report, supra note 4, para. 71, & Recommendation 6. The ICTR judges would be hesitant to adopt this procedure without additional information. Comments on the Experts' Report, supra note 5, Annex I, para. 30.
38. Experts' Report, supra note 4, Recommendation 6. The ICTY notes that decisions on relatively simple legal disputes are made orally; the judges will consider an amendment to require the parties to make oral motions in certain circumstances. Comments on the Experts' Report, supra note 5, Annex I, paras. 26, 28. The ICTR judges have attempted to alleviate the problem by disposing of motions on the basis of written briefs, reducing the need for oral bearings. Id., para, 32.
39. Experts' Report, supra note 4, Recommendation I. The ICTY has indicated that this practice will be followed; and how to expedite the resolution of interlocutory appeals will be discussed at a future plenary. Comments on the Experts' Report, supra note 5, Annex I, para. 1. The ICTR judges partially met this recommendation by reducing the time period from 60 to 30 days for filing motions under Rule 50. Id., para. 2.
40. Experts' Report, supra note 4, para. 75.
41. Id., para. 76, & Recommendation 7.
42. Id., para. 76 n.26, & Recommendation 8, The ICTY judges permit offers of proof to protect the rights of parties whose evidence is excluded pursuant fo the ICTY Rules, supra note I, Rule 73 ter. See Comments on the Experts' Report, Mipm note 5, Annex I, para. 35. The prosecutor would prefer to go even further in controlling the presentation of witness testimony. See id., para. 36.
43. In support of this finding, the expert group noted: "[I]n lour cases in ICTR in which trial proceedings had lasted for as long as 24 months, almost 90 per cent of that time was, on average, attributable to adjournments granted by the Trial Chamber for one reason or another." Experts' Report, supra note 4, para. 78.
44. See Comments on the Experts' Report, supra note 5, Annex I, para. 37.
45. ICTY Rules, supra note 1, Rule 85(B); see also id., Rule 98.
46. Experts' Report, supra note 1, para. 76.
47. ICTY Rules, supra note 1, Rule 90(G).
48. Id., Rule 65 ter E(ii).
49. Experts' Report, supra note 4, Recommendation 10.
50. Id., para. 84. But see Comments on the Experts' Report, supra note 5, Annex I, para. 41 (expressing the prosecutor's doubts about this proposal).
51. Experts' Report, supra note 4, para. 85.
52. Comments on the Experts' Report, supra note 5, Annex 1, para. 45.
53. Id., para. 47.
54. Experts' Report, supra note 4, para. 85.
55. Comments on the Experts' Report, supra note 5, Annex I, paras. 40-44, 54-56; see also id., paras. 38-39.
56. Experts' Report, supra note 4, Recommendation 12, & para. 88.
57. Comments on the Experts' Report, supra note 5, Annex I, para. 52. The prosecutor added that there is "an inherent conflict between initiatives designed to limit the number of witnesses appearing before Chambers and the desire to allow the victim's voice to be heard in the proceedings." See id., para. 53. Moreover, depending on how such a rule is structured, it may run afoul of Article 16(1) of the Statute regarding the functions of the prosecutor.
58. Id., para. 41.
59. See id., para. 39.
60. Id., para. 54,
61. See id., para. 39.
62. See id., para. 42.
63. Experts' Report, supra note 4, Recommendation 13, The ICTY judges adopted this practice through amendments to Rule 65 ter and Rule 90 (H) (ii). See Comments on the Experts' Report, supra note 5, Annex I, para.
64. The ICTR judges note that ICTR Rule 73 ter incorporates certain aspects of this recommendation but that there is a potential for conflict with the principle that the prosecution has she burden of proof. Id., para. 63.
65. Experts' Report, supra note 4, para. 89.
66. Id., para. 90, & Recommendation 13.
67. Id., para. 90.
68. Id., para. 87.
69. In Prosecutor v. Kvočka, No. IT-98-.30/1, the trial chamber permitted two of the five accused to testify under oath immediately after the opening statements and prior to the commencement of the prosecution's case. Because the accused were under oath, the prosecution had the opportunity to cross-examine them. However, in an interesting development, the proseculion sought - and was granted in an oral decision on February 24, 2000 - permission from the trial chamber to defer their cross-examination of these accused until the defense's case began.
70. Moreover, the trial chamber, which has discretion to allow the accused to make such a statement, is also precluded from examining the accused on the unsworn statement. No adverse inference may be made if the accused declines to make such a statement. See Experts' Report, supra note 4, para. 87; ICTY Rules, supra note 1. Rule 84 bis.
71. Experts' Report, supra note 4, para. 108, & Recommendation 21; see also text at notes 108-19 infra (discussing the Jorda Report, supra note 6).
72. See Experts' Report, supra note 4, para. 108.
73. See id.
74. Id., para. 107.
75. Id., Recommendation 17; see also id., para. 103. The ICTY agrees in principle and this recommendation will be discussed at an upcoming plenary. Comments on the Experts' Report, supra note 5, Annex I, para. 75. With respect to interlocutory appeals, Rule 72(1) of the ICTR Rules provides for such a screening mechanism. International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, as amended (June 26, 2000), Rule 72(1), obtainable, from ICTR Web site 〈http://www.ictr.org〉 [hereinafter ICTR Rules]; sec also Comments on the Experts Report, supra, para. 7-75.
76. Sir ICTY Rules, supra note 1, Rules 65(D), 72(B); see also ICTR Rules, supra note 74, Rules 65(D), 72.
77. Experts' Report, supra note 4, Recommendation 17, & para. 103. The chambers of both International Tribunals support this recommendation. See Comments on the Experts' Report, supra note 5, Annex I, para. 75
78. See Experts' Report, supra note 4, Recommendation 18; Treaty of Rome, supra note 17, Art. 39(3) (b), The ICTY anticipates that modification ofl ICTY Rule 15 will contribute to greater stability within the appeals chamber, while noting that it will not be possible to achieve this goal "until such time that the Tribunal is allocated more judges." Comments on the Experts' Report, supra note 5, Annex I, paras. 76-77. The ICTR judges support this recommendation. Id., para. 78.
79. Experts' Report, supra note 4, para. 105.
80. Id., Recommendation 24. The prosecutor concurs with this recommendation and noted that she will "continue to conduct . . . investigations according to this policy." Comments on the Experts' Report, supra note 5, Annex I, para. 97.
81. Experts' Report, supra note 4, Recommendation 26. The prosecutor agrees with this recommendation and noted that her office has operated - and will continue to operate - in accordance with this principle. See Comments on the Experts' Report, supra note 5, Annex I, para. 102.
82. Experts' Report, supra note 4, Recommendation 14.
83. Comments on the Experts' Report, supra, note 5, Annex I, para. 105.
84. Experts' Report, supra note 4, para. 184, & Recommendation 28.
85. paras, 209-10. For example, the ICTY does not impose a requirement that defense counsel be experienced, whereas the ICTR requires at least 10 years of relevant experience. The experts recommended bringing the ICTY rule in line with the ICTR rule and that both rules be amended to require at least live years of criminal trial experience.
86. Id., Recommendation 5; see also id., para. 67. Although the prosecutor "welcome [d]" this recommendation and the ICTR chambers noted that they have exercised an oversight role over frivolous motions, the ICTY chambers, registry, and representatives of the ICTY defense bar rejected this proposal. See Comments on the Experts' Report, supra, note 5, Annex I, paras. 18-25.
87. Experts' Report, supra note 4, Recommendation 43. This recommendation drew considerable comment from the judges and registrars of both International Tribunals and the Secretary-General. Among the concerns expressed were that some of its features might conflict with Article 17 of the ICTY Statute, supra note 18; Rule 33 of the ICTY Rules, supra note 1; and the UN Financial Rules and Regulations, UN Doc. ST/SGB/Financial Rules/ Rev.3 (1985). See Comments on the Experts' Report, .supra note 5, Annex I, paras. 160-74.
88. Letter Dated 12 May 2000 from The President of the International Tribunal for the Former Yugoslavia Addressed to the Secretary-General, UN Doc. A/55/382-S/2000/865, Annex I, at 3 (2000).
89. Jorda, supra note 6, at 12, para. 35.
90. Id. at 21 n. 1.
91. Id. at 11, para. 27.
92. Id., para. 29.
93. Id. at 12, para. 31.
94. Id., para. 35.
95. Id., at 13, para. 40.
96. W. at 18, paras. 47-54.
97. Id., para. 52.
98. Id., paras. 57-62.
99. Id. at 19, paras. 63-70.
100. Id., para. 66.
101. Id., para. 69.
102. Id., paras. 71-77.
103. Id., at 20, paras. 78-81.
104. Id., para. 81.
105. Id., paras. 82-83.
106. Id. at 20-21, paras. 84-92.
107. Id. 21, para. 91.
108. Id., para. 92.
109. Id.
110. Id. at 24, para. 136.
111. Id. at 21, para. 96.
112. Id. at 22, para. 105.
113. Id., para. 106.
114. Id., para. 107.
115. Id., para. 108. The Jorda Report is silent wish respect to how the physical resources of the ICTY could accomodate a significant iincrease in the number of trials. The three currently existing courtrooms are in use 75% of the time. Id. at 10, para. 20.
116. Id. at 23, paras. 117-19.
117. Id., para. 121.
118. Id., para. 122.
119. Id.
120. Id.
121. Comments on the Experts' Report, supra note 5, Annex I, para. 40.