Procedural innovations in war crimes trials

Journal of International Criminal Justice

Volumn 3, Issue 2, 2005, Pages 354-380

  Nice, Geoffrey ^a   Vallières Roland, Philippe ^a  

^a ICTY

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EID: 26844551261     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi043     Document Type: Article

References (67)

1. In hybrid courts, local judges and prosecutors cooperate with international judges and prosecutors to try cases based on statute and rules of procedure and evidence broadly similar to those of the ICTR and the ICTY.
2. For instance, the trial before a jury of four Rwandans accused of genocide which took place in Belgium in 2001 lasted eight weeks. See the case of L'Accusation c. Vincent Ntezimana, Alphonse Higaniro, Consolata Mukangango ('Soeur Gertrude') and Julienne Mukabutera ('Soeur Kizito') ('Les Quatre de Butare'), Cour d'Assises de Bruxelles, 17 April-8 June 2001. The four accused were sentenced for a period ranging between 12 and 20 years, and the trial was held under the Belgian universal jurisdiction law of 16 June 1993. The law gives jurisdiction to Belgian Courts to prosecute alleged perpetrators of crimes of humanity, genocide and war crimes independently of the nationality of the authors of the crimes and the victims. The trial has been regarded as a success by international observers, including the Human Rights Watch specialist on Rwanda, Alison des Forges, available online at http://www.asf.be/AssisesRwanda2/fr/fr.REACTIONS_desforges.htm (visited 8 February 2005). For a full account of the proceedings, see http://www.assisesrwanda2001.be/010000.html (visited 8 February 2005).
3. Judge Shahabuddeen noted: '...it is helpful to notice the circumstances of the Tribunal. They involve the management of cases which sprawl over time and space and stretch over the testimony of hundreds of witnesses. The difficulty has long troubled international tribunals. It was a problem at Nuremberg....And of course the problem is well known to this Tribunal: If allowed to run in the ordinary way, some trials at first instance could extend to five years and beyond.' See Partial Dissenting Opinion of Judge Shahabuddeen to the Decision on Admissibility of Prosecution Investigator's Evidence, Milošević (IT-02-54-AR73.2), 30 September 2002, §2.
4. The initial Trial Chamber in Milošević was constituted by two of the three judges that constituted the Kordić Trial Chamber (Presiding Judge May and Judge Robinson, both from common law jurisdictions) and by judge Kwon, a judge from South Korea - a civil law country. Due to illness, which unfortunately resulted in his death on 1 July 2004, Sir Richard May was replaced by Lord lain Bonomy on 30 May 2004. Judge Robinson then became the Presiding Judge.
5. Dissenting Opinion of Judge Kwon to Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Milošević (IT-02-54-T), 16 April 2003, §5.
6. On this point, judge Shahabuddeen said: '...(in light of) the peculiarities and difficulties of unearthing and assembling material for war crimes prosecutions conducted in relation to the territories of the former Yugoslavia. The resulting need for judicial flexibility is apparent.' See Decision Stating Reasons for Appeal Chambers Order (Separate Opinion of Judge Shahabuddeen), Kovačević (IT-97-24-A), 29 May 1998, §§ 4-5.
7. As Justice Jackson, Chief Prosecutor at the International Military Tribunal at Nuremberg, said: '...we must never forget that the record on which we judge these defenders today is the record on which History will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice', Trial of the Major War Criminals before the International Military Tribunal, 14 November 1945-1 October 1946, published at Nuremberg, 1947, at 101.
8. Trial Chambers have a broad discretion under Rule 89(C). The Rule provides that: 'A Chamber may admit any relevant evidence which it deems to have probative value.' See also Decision on Prosecutor's Appeal on Admissibility of Evidence, Aleksovski (IT-95-14/2-AR73.5), 16 February 1995, §15.
9. This later came to be known as the 'Tulića dossier' approach (hereinafter the 'dossier approach') after the name of the first village for which such a dossier was prepared. The dossier approach was proposed with the aim of grounding allegations on a solid base of facts, mostly proved in writing, which would help the Chamber to set its more specific findings in the proper context.
10. Robert H. Jackson (Chief of Counsel for the USA in the Prosecution of Axis War Criminals), 'Report to the President', 7 June 1945, reprinted in 39 American Journal of International Law (Supp. 1945) 178, at 184.
11. Judge Bennouna stated: 'Both the Presiding judge and myself do not have to wait until the plenary in order to decide, so it is in that specific setting, anything dealing with attacks on villages. This is a procedural proposal which would tend to relate to a number of evidence as to the general background of the indictment, the context, the general context of the indictment.... For instance, to have the statements, witness statements, and after hearing the Defence and the prosecution, we would be in a position to decide among ourselves, taking into account the statements and within the frameworks set by those statements, to decide which is the relevant testimony to be heard by the Court, taking as a starting point the statements, but also the investigator's testimony itself....this would make it possible for us to better specify the foundation of this discussion, and we could then move ahead and leave it to you to present the rest of the argument', Procedural discussion, Kordić&Čerkez (IT-95-14/2-T), 3 June 1999, transcript page (hereinafter 'T') 3193.
12. Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, Kordić & Čerkez (IT-95-14/2-T), 29 July 1999.
13. In Milošević, the prosecution again raised the idea of a dossier for the infamous Račak killings incident (a massacre of Kosovo Albanian civilians in Kosovo in 1999) that would contain, inter alia, a summary of all the statements taken by the OTP during the course of its investigations into the incident. That statement was to be prepared by an OTP investigator. See Decision on Admissibility of Prosecution Investigator's Evidence, Milošević (IT-02-54-AR73.2), 30 September 2002. The Račak killings incident is an important but complicated component of the Milošević prosecution case. It involves multiple crime scenes and the recognition that combat operations between KLA and Serb forces occurred on the day of the massacre. It was estimated by OTP investigator Barney Kelly, the investigator who specialized in the Račak investigation, that 60 witnesses would be necessary to give a complete picture of what happened in that village on 15 October 1999. That figure was reduced to 30 witnesses following a careful selection allowing minimum evidence for the presentation of an accurate picture of events. The Trial Chamber then effectively compelled us to reduce the number of live witnesses to testify about this incident to five. When asked in the course of evidence in the trial whether he thought this number could be sufficient, Mr Kelly plainly responded that it certainly would not. Thus, the Trial Chamber will make a determination on limited evidence where it could have read a more extensive dossier, requiring viva voce evidence from a selected number of witnesses, as they deemed appropriate.
14. The HRW report was published in October 2001 and was the result of interviews with 600 Albanians who had fled Kosovo between 28 March 1999 and December 1999. Fred Abrahams, one of the co-authors of the report, was a witness in the Milošević case. Abrahams produced as exhibits 16 reports prepared by HRW on Kosovo since 1990.
15. Procedural Discussion on the Admission of Written Evidence, Milošević (IT-02-54-T), 30 May 2002, T5943. We have always argued that the fact that a witness is a member of the prosecution team, or is associated with it, should be going to the weight of the evidence rather than its admissibility.
16. Partial Dissenting Opinion of Judge Shahabuddeen to the Decision on Admissibility of Prosecution Investigator's Evidence, Milošević, supra note 3, §8.
17. Two television documentaries, the 'Death of Yugoslavia' and 'The Fall of Milošević', were produced by Brook Lapping Productions for the British Broadcasting Corporation. In both documentaries, there were extensive interviews with Slobodan Milošević, other members of the joint criminal enterprise alleged in the Milošević indictment and other potential witnesses for the Milošević trial, including leading international participants in the relevant events. The prosecution in the Milošević trial intended to make the complete interviews (footage and transcripts) available to the accused and the amici curiae so that they could record any objection they may have to the editing process carried out by the documentary makers. It was thought that the use of this material could save much court time and represent an excellent background tool for the Chamber, especially in the case of the interviews of individuals who later refused to give evidence in the trial. However, even though the Trial Chamber gave indications throughout the trial that it was warming to the idea of introducing the documentaries in whole or in part, it decided to refuse to admit them. See Decision on Notification of the Completion of Prosecution Case and Motion for the Admission of Evidence in Written Form, Milošević (IT-02-54-T), 25 February 2004, in which the Milošević Trial Chamber stated that the 'Death of Yugoslavia and 'Fall of Milošević' interview transcripts 'shall not be admitted into evidence, on the basis that it is inappropriate to admit such evidence without the proper opportunity for the Accused to challenge them.
18. As Judge Shahabuddeen rightly pointed out, the Milošević trial would have been a perfectly appropriate case to give room to such a procedural innovation: 'The case spans vast swaths of territory, much time and endless lists of witnesses; it obviously calls for special evidentiary machinery. Some domestic systems and the Nuremberg trials suggest models to be drawn upon. Variations are possible, but the common idea is to avoid unsafe conclusions based on partial evidence. That idea is realized by a method which enables the court to appreciate the fullness of all relevant evidence within a reasonable time and which is yet consistent with essential notions of justice. Both parties are entitled to an expeditious hearing, but this is not a reason for sacrificing evidential completeness. The desirable solution is one that permits speed to be reconciled with comprehensiveness.' See Partial Dissenting Opinion of Judge Shahabuddeen to the Decision on Admissibility of Prosecution Investigator's Evidence, Milošević, supra note 3, §34.
19. P.L. Robinson, 'Ensuring Fair and Expeditious Trials at the ICTY', Lecture given at Leiden University, Netherlands, 30 September 1999. During another lecture, Judge Robinson said: 'A procedure that denies the accused the right to examine the maker of a statement is more readily accommodated, without prejudicing the accused, in a system where the Judges have more information about the facts of the case and are more proactive in asking questions than the Tribunal Judges, in other words, a Judge in the civil law with an "information-rich dossier" could ask the type of questions that would help compensate for the lack of cross-examination by the accused...' (footnotes omitted). This quotation was taken from P.L. Robinson, 'Fair but Expeditious Trials'. Lecture given at the European University Institute, Florence, Italy, 20 February 2004. The Rules of the ICTY certainly allow for the Judges to be proactive and allow the admission of such dossiers. Rules 85(B) and 98 of the Rules are clear examples of such powers.
20. Procedural Discussion on Rule 92 bis, Milošević (IT-02-54-T), 23 October 2002, T12305.
21. Named members of the joint criminal enterprise, such as Milan Babić (former President of the SAO Krajina), Borisav Jović (Serbian representative to the Presidency of Yugoslavia), Aleksandar Vasiljević (JNA General and Chief of the Security Administration) were called by the prosecution. They no doubt gave crucial evidence that will be heavily relied upon by the Judges in their verdict. It is anticipated that the defence will call other named members of the joint criminal enterprise, such as Branko Kostić (Representative of the Republic of Montenegro on the Yugoslav Presidency) and Momir Bulatović (former President of Montenegro).
22. Without in any way suggesting a comparison between Nazi Germany and Milošević's Yugoslavia, suppose if Adolf Hitler had been tried alone, would the judges trying him not have wanted to hear, say, Herman Goering as a witness, were he not to be called by Hitler? Of course, Goering would certainly not have told an entirely truthful account but the judges would probably have appreciated being able to factor in his account in their judgment because of his crucial role in the events. They would have been able to distinguish the portions of his testimony that could be relied upon and the ones that could not.
23. Rule 90(F) provides: 'The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.'
24. Separate Opinion of Judge Kwon on Trial Chamber Confidential Decision issued 28 January 2004 (Public filing, Milošević (IT-02-54-T), 29 April 2004, §§ 6-7.
25. We were indeed stopped by the Trial Chamber, following an intervention by the amicus curiae when we tested the concept of robust examination-in-chief with Borisav Jović: Q. (Prosecutor Nice): Do you know Admiral Jokić? A. (Witness Jović) I never met him personally, but I have heard of him. Q. Have you heard of his pleas of guilty here before this Tribunal? A. I have heard about that. I read about it in the newspapers. Q. Are you in a position now to accept that crimes were committed at Dubrovnik of the kind generally alleged? (Amicus Steven Kay): This witness can't deal with these questions like this. Your Honour, it's -. (Judge May): Yes. We're getting too close to cross-examination now. (Prosecutor Nice): Your Honour, I respectfully disagree, but I will press on with other matters. See Testimony of Witness Borisav Jović, Milošević (IT-02-54-T), 20 November 2003, T29448-29449.
26. Rule 92bis allows the admission of a written statement in lieu of oral testimony which goes to the proof of a matter other than the acts and conduct of the accused as charged in the indictment. The Rule provides for a certain number of safeguards for the statement to be admissible. Among others, the written statement must be supplemented by a declaration by the person making the written statement that the contents of the statement are true and correct to the best of his knowledge. This declaration must be witnessed by a person authorized to witness such a declaration in accordance with the law and procedure of a state, or a Presiding Officer appointed by the Registrar of the Tribunal for that purpose.
27. The Rule was introduced as a result of the decision in Decision on Appeal Regarding Statement of a Deceased Witness, Kordić & Čerkez (IT-95-14/2-AR73.5), 21 July 2000.
28. This ratio was confirmed by the Trial Chamber in Order Rescheduling and Setting the Time Available to Present the Defence Case, Milošević (IT-02-54-T), 25 February 2004, at 3-4.
29. In addition to the procedural innovations discussed in this article, the prosecution proposed a number of procedural solutions to face the enormous waste of resources caused by the recurring health problems of the accused. One of the avenues envisaged was a more flexible approach towards the taking of deposition evidence, combined with the use of video recording. It was argued that it should be possible for the prosecution to take a deposition, even when an unrepresented accused is unable to attend, if the Trial Chamber orders that the deposition be video-recorded. It should then be possible for the Chamber subsequently to admit the record of the deposition in evidence, provided that the accused is given the opportunity to view the video recording and the record, and to cross-examine the witness before the Trial Chamber at a later stage, if he wishes. For additional details on this proposal and other similar proposals dealing with the attendant difficulties of the accused's ill-health, see Prosecution's Motion for a Hearing to Discuss the Implications of the Accused's Recurring Ill-Health, Milošević (IT-02-54-T), 23 September 2003.
30. (Milošević): 'Now, whether I challenge something is no explanation for challenging or not challenging, because I challenge the whole indictment. It's a question of time.' See Procedural Discussion on the Application of Rule 92bis, Milošević (IT-02-54-T), 13 March 2003, T17886.
31. Dissenting Opinion of Judge Kwon to Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Milošević, supra note 5, §2.
32. Procedural Discussion on the Admission of Written Evidence, Milošević, supra note 15, T5935. In other instances during the trial, Judge May has indicated that he may be inclined to receive some of the evidence in writing and always demonstrated an interest to hear the prosecution's arguments on the topic. However, he seemed reluctant to endorse any of the bold steps suggested by the prosecution.
33. Ibid., T5936.
34. Readers who have been following the activities of the ICTY since the beginning will remember that for a wide range of reasons too vast to address here, the Tribunal did not try leadership cases, mostly concentrating on detention camp and similar cases of relatively low-level accused until about 1999.
35. Procedural discussion, Kordić & Čerkez, supra note 11, T3188-3215. During the procedural discussion, Presiding Judge May encouraged the prosecution to take a 'robust prosecuting attitude which would be to say: We are calling this evidence and we've called enough, and we're not going on repeating the same evidence'. The prosecution took this remark to suggest that one witness per municipality or crime site should be enough in a leadership case.
36. As discussed later, in the judicial notice of adjudicated facts section of this article, crimes committed in areas of Bosnia and Croatia have been fully litigated in a number of other cases at the Tribunal.
37. For a full discussion and a summary of the Appeals Chamber Decision, see infra.
38. One or two 'proofing summaries' became evidence in the Kordić trial but purely for practical reasons, such as unavoidable restrictions on availability of a particular witness who could not stay in The Hague for a longer period. Proofing summaries were later used as Rule 89(F) statements for those witnesses.
39. Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, Milošević (IT-02-54-AR 73.4), 30 September 2003. See also Interlocutory Appeal of the Prosecution Against the Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Milošević (IT02-54-AR73.4), 13 May 2003 and Prosecution's Request for Certification of Appeal under Rule 73(B), Milošević (IT02-54-T), 23 April 2003.
40. Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, Milošević, supra note 39, §19.
41. Ibid., §21.
42. Ibid., §20 (emphasis and added text in brackets are ours).
43. (Judge Hunt): 'The Majority Appeals Chamber Decision drives a horse and cart through the previous interpretation of Rule 92bis, and it seriously prejudices the accused in the ways already pointed out.... [t]he very proper endorsement by the Security Council "in the strongest terms" of the Completion Strategy of the Yugoslav Tribunal should not be interpreted as an encouragement by the Security Council to the Tribunal to conduct its trials so that they would be other than fair trials ....The only reasonable explanation for these decisions appears to be a desire to assist the prosecution to bring the Completion Strategy to a speedy conclusion. I have been unable to agree with those decisions because I do not believe that, in doing so, I would be performing my duties "honourably, faithfully, impartially and conscientiously" as the solemn declaration which I took when I became a judge of the Tribunal requires me to do....The Majority Appeals Chamber Decision and others in which the Completion Strategy has been given priority over the rights of the accused will leave a spreading stain on this Tribunal's reputation'. See Dissenting Opinion of Judge Hunt on Admissibility of Evidence-in-Chief in the Form of Written Statements, Milošević (IT-02-54-AR73.4), 21 October 2003, §§ 20-22.
44. Interlocutory Appeal of the Prosecution Against the Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Milošević, supra note 39, §29;
45. Amici Curiae Reply to Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Milošević (IT-02-54-AR73.4), 21 May 2003, §§ 14-17.
46. Decision on Interlocutory Appeal Concerning Rule 92bis(C), Galić (IT-98-29-AR73.2), 7 June 2002, §§ 15-16. In a separate opinion concurring with the majority, judge Shahabuddeen commented: 'Indeed, it may be wondered why a procedure of this kind was not earlier employed by the Tribunal, considering the scale of cases before it together with the limitations of time which a Trial Chamber is obliged to impose on parties. The answer can only lie in a predilection for orality. Useful though it is, it seems reasonable to note that the common law preoccupation with that practice developed in the context of trials for ordinary crimes; it may be questioned whether the practice would not have undergone material change if common law courts were habitually faced with the kind of trials that are ordinarily held by the Tribunal. In an unqualified form, that preference is not essential - if it is not misplaced - in an international criminal tribunal concerned with allegations of legions of very serious crimes. It was not for nothing that Rule 89(A) laid it down that a Chamber "shall not be bound by national rules of evidence". Specifically addressing Judge Hunt's concerns cited earlier, Judge Shahabuddeen also stated: 'As every lawyer appreciates - and many a non-lawyer too - it would not be correct for the Appeals Chamber to give priority to the Completion Strategy of the Security Council over the rights of the accused; so to do would indeed "leave a spreading stain on the Tribunal's reputation", as judge Hunt has correctly observed. It is therefore not surprising that that Strategy has not been mentioned in the decision of the Appeals Chamber: it has not been mentioned because it has nothing to do with the matter. The decision is based on the reasoning which it sets out. That reasoning may be microscopically examined, but it leaves no room for a judicial finding that a plainly inadmissible factor has been taken into account' (footnotes omitted). Separate Opinion of Judge Shahabuddeen Appended to Appeals Chamber's Decision Dated 30 September 2003 on Admissibility of Evidence-in-Chief in the Form of Written Statements, Milošević (IT-02-54-AR73.4), 31 October 2003, §§ 20-22. Some of these considerations were adverted to earlier in Partial Dissenting Opinion of Judge Shahabuddeen to the Decision on Admissibility of Prosecution Investigator's Evidence, Milošević, supra note 3, §§ 2, 19-20 and 34-38.
47. The prosecution team also prepared witness hotlink pages that contained a: (a) picture of the witness; (b) written statement; (c) 65ter summary (projected evidence); (d) list of potential exhibits; (e) proofing summary (outline of his evidence to be used by the trial attorney in court); (f) post-testimony comments (credibility comments from the trial attorney following the witness's testimony); (g) summary of the witness's evidence with transcript references. Such a page was prepared for every witness and constituted another very useful electronic tool to keep track of the evidence and centralize all the information related to a witness. There was a plan to distribute this tool to the parties and the public, but the plan was abandoned for reasons of confidentiality of the identity of some witnesses and the attorney work product not for public consumption that the witness 'hotlink' pages contained. It is possible that a redacted version of the witness hotlink pages will be released at some stage, after the end of the trial.
48. The goal was ultimately to move to methods of electronic analysis that could be common to all parties, there being no reason to seek tactical advantage in keeping good, computer-based analysis to ourselves.
49. Amici Curiae Motion for Judgment of Acquittal pursuant to Rule 98bis, Milošević (IT-02-54-T), 3 March 2004.
50. G. Nice, 'Trials of Imperfection', 14 Leiden Journal of International Law (2001) 383-397.
51. Rule 90(A), which said that '...witnesses shall, in principle, be heard directly by the Chambers, was deleted and Rule 89(F) was added. Rule 89(F) reads: 'A Chamber may receive the evidence of a witness orally or, where the interests of justice allows, in written form'. We have already discussed the Rule in the context of the Appeals Chamber Decision of 30 September 2003.
52. See Milošević, Interlocutory Appeal of the Prosecution Against the Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, supra note 39, §§ 13-15.
53. Rule 94 (Judicial Notice): (A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof; (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.
54. See Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-T), 10 April 2003 and Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-T), 16 December 2003.
55. For instance, 10 of the alleged members of the joint criminal enterprise named in the Milošević indictment have been indicted. They are Milan Babić, Goran Hadžić, Milan Martić, Vojislav Šešelj, Radovan Karadžić, Momčilo Krajišnik, Biljana Plavšić, Ratko Mladić, Jovica Stanišić and Franko Simatović. Milan Babić and Biljana Plavšić have pleaded guilty. Momcǐlo Krajišnik's trial is currently under way. The seven other alleged JCE members are either in custody awaiting trial (Milan Martić, Vojislav Šešelj, Jovica Stanišić and Franko Simatović) or on the run (Ratko Mladić, Radovan Karadžić and Goran Hadžić).
56. Rule 98 reads: 'A Trial Chamber may order either party to produce additional evidence. It may proprio motu summon witnesses and order their attendance'.
57. Stakić, Order Summoning Dr Biljana Plav̌sić Proprio Motu to Appear as a Witness of the Trial Chamber Pursuant to Rule 98, Case No. IT-97-24-T, 9 January 2003.
58. Nine accused have pleaded guilty since May 2003. The ICTY registered the same number of guilty pleas in one year as it had since the beginning of its activities in 1994.
59. Procedural discussion, Kordić & Čerkez, supra note 11,T3188-3189.
60. One of the best ways to do that would be to agree on a set of relevant issues that would be logged into electronic evidence management tools accessible to all, such as Livenote or CaseMap, so that everyone is on the 'same page'. All the evidence would have to be relevant to the agreed set of issues. In their submissions, the parties would use the common body of evidence accessible to all, allowing quick and easy reference, moving towards an 'e-Court'.
61. CaseMap is computer software that makes it easy to organize, evaluate and explore the facts, the cast of characters and the issues in a complex court case. CaseMap is designed for use on all types of cases and by all types of litigators and investigators. It is therefore very easy to learn and operate.
62. Reasons for Decision on Assignment of Defence Counsel, Milošević (IT-02-54-T), 22 September 2004, §56, 64-65 and 70: 'The Trial was interrupted 13 times during the presentation of the Prosecution case. As a result, 66 trial days were lost....The Trial Chamber, and the International Tribunal has gone to great lengths to accommodate the right of this Accused to represent himself.... The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious. The concern of the Trial Chamber was that, based on the findings above, that the risk to the health, and indeed the life, of the Accused and the prospects that the trial would continue to be severely disrupted were so great as to be likely to undermine the integrity of the process. There was a real danger that this trial might last for an unreasonably long time or, worse yet, might not be concluded should the Accused continue to represent himself. No court, mindful of its duty to ensure a fair and expeditious trial and its inherent responsibility to preserve the integrity of the proceedings could countenance this. On the other hand, the Chamber was satisfied that, if counsel was assigned to the Accused, measures could be devised to ensure that the trial continues in a manner that is both fair and expeditious.... Should the Accused fail to cooperate with counsel, the trial will nonetheless proceed. If such failure on the part of the Accused results in material which is actually relevant to the Accused's case not being presented, then the Accused must bear responsibility for that and cannot plead injustice'. The Trial Chamber's decision to assign counsel on the accused is currently under appeal. This issue is so complex and important that it cannot be discussed in a meaningful way in this article.
63. Judge Shahabuddeen has stated: 'There is much in the argument that the telescoped approach taken at Nuremberg has been overtaken by the increasing emphasis which has since been given to human rights. But the problem at Nuremberg remains, and so does the need to find a solution. A solution which violates fundamental norms is of course not satisfactory. But there need be no conflict if essentials are regarded. The essentials show that the duty to be fair is not a duty to be infallible. The fairness of a trial is the result of the fairness of the system of justice employed. The latter depends on the striking of a balance between two competing interests. First, there is the justly publicised public interest in respecting the rights of the accused. Second, there is the less proclaimed but equal public interest in ensuring that crimes are properly investigated and duly prosecuted'. (footnotes omitted). Milosevic, Partial Dissenting Opinion of Judge Shahabuddeen to the Decision on Admissibility of Prosecution Investigator's Evidence, supra note 3, §36.
64. It is worth remembering that at Nuremberg, twenty-two accused were tried in only nine months. Most of them testified.
65. It is not suggested, of course, that there was any but the best of intentions in imposing the legal system under which both ad hoc Tribunals operate. How this system was chosen - and how a broadly similar system was approved for the ICC - could be a topic worthy of separate consideration. It is hard to think that those approving the choice of system forecast that the Tribunals would be so successful in their apprehending and trying of high-level accused that the system thought by many developed countries would be found wanting to the extent that it has been.
66. The issue of how to deal with an accused who may require the assistance of assigned counsel in cases such as these may fall to be dealt with comprehensively in a separate article.
67. Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, Norman et al. (SCSL-2004-14-T), 8 June 2004.