4. Procedural innovations in war crimes trials

International Humanitarian Law Series

Volumn 10, Issue , 2006, Pages 141-168

  Nice, Geoffrey ^a   Vallières Roland, Philippe ^a  

^a ICTY ^*  (Netherlands)

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EID: 84966769140     PISSN: 13896776     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Review

References (56)

1. For instance, the trial of four Rwandans accused of genocide which took place in Belgium in 2001 before a jury, lasted 8 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 against 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 HRW specialist on Rwanda, Alison des Forges, see .
2. For a full account of the proceedings, see .
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 Prosecutor v. Slobodan Milošević, Partial Dissenting Opinion of Judge Shahabuddeen to the Decision on Admissibility of Prosecution Investigator's Evidence, Case No. IT-02-54-AR73.2, 30 September 2002
4. (hereinafter "Judge Shahabuddeen's Partial Dissenting Opinion to the Decision on Admissibility"), para. 2.
5. Prosecutor v. Milošević, Dissenting Opinion of Judge Kwon to Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Case No. IT-02-54-T, 16 April 2003
6. (hereinafter "Judge Kwon's Dissenting Opinion"), para. 5.
7. 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[,] [t]he resulting need for judicial flexibility is apparent." See Prosecutor v. Milan Kovačević, Decision Stating Reasons for Appeal Chambers Order of 29 May 1998(Separate Opinion of Judge Shahabuddeen), Case No. IT-97-24-A, 2 July 1998, para. 8.
8. As Justice Jackson, Chief Prosecutor at the IMT, 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, Vol. II, Nuremberg, 1947, p. 101.
9. Trial Chambers have a broad discretion under Rule 89(C), which provides that: "A Chamber may admit any relevant evidence which it deems to have probative value." See also Prosecutor v. Zlatko Aleksovski, Decision on Prosecutor's Appeal on Admissibility of Evidence, Case No. IT-95-14/2-AR73.5, 16 February 1995, para. 15.
10. Robert H. Jackson, Report to the President from justice Robert H. Jackson, Chief Counsel for the United States in the Prosecution of Axis War Criminals, 7 June 1945, reprinted in 39 American Journal of International Law, (Supplement 1945), 178, p. 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." Prosecutor v. Dario Kordić & Mario Čerkez, Procedural discussion, Case No. IT-95-14/2-T, 3 June 1999
12. (hereinafter "Kordić Procedural Discussions"), transcript page (hereinafter "T") 3193.
13. Prosecutor v. Dario Kordić & Mario Čerkez, Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, Case No. IT-95-14/2-T, 29 July 1999.
14. 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 Prosecutor v. Slobodan Milošević, Decision on Admissibility of Prosecution Investigator's Evidence, IT-02-54-AR73.2, 30 September 2002.
15. Prosecutor v. Slobodan Milošević, Procedural Discussion on the Admission of Written Evidence, Case No. IT-02-54-T, 30 May 2002
16. (hereinafter "Milošević Procedural Discussion on the Admission of Written Evidence"), T. 5943. The prosecution has always argued that the fact that a witness is a member of the prosecution team, or is associated with it, should be a matter going to the weight of the evidence rather than its admissibility.
17. Judge Shahabuddeen's Partial Dissenting Opinion to the Decision on Admissibility, supra note 3, para. 8.
18. 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 indictment (hereinafter "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 Prosecutor v. Slobodan Milošević, Decision on Notification of the Completion of Prosecution Case and Motion for the Admission of Evidence in Written Form, Case No. IT-02-54-T, 25 February 2004, in which the 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."
19. 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 realised 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 Judge Shahabuddeen's Partial Dissenting Opinion to the Decision on Admissibility, supra note 3, para. 34.
20. Patrick Lipton Robinson, Ensuring Fair and Expeditious Trials at the ICTY, Lecture given at Leiden University, Netherlands, 30 September 1999;
21. The text of the speech is available at the ICTY Library or upon request to the authors: vallieres-roland@un.org or nice.icty@un.org. On another occasion, 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 jurisdiction 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), see Patrick Lipton Robinson, Fair but Expeditious Trials, in Hirad Abtahi and Gideon Boas (eds.), The Dynamics of International Criminal Justice, Essays in Honour of Sir Richard May, 2006, Chapter 5. 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.
22. Prosecutor v. Slobodan Milošević, Procedural Discussion on Rule 92bis, Case No. IT-02-54-T, 23 October 2002, T. 12305.
23. Prosecutor v. Slobodan Milošević, Separate Opinion of Judge Kwon on Trial Chamber Confidential Decision issued 28 January 2004(Public filing), Case No. IT-02-54-T, 29 April 2004, paras. 6-7.
24. The prosecution was indeed stopped by the Trial Chamber, following an intervention by the amicus curiae when the prosecution tested the concept of robust examination-inchief with Borisavjović: Q. (Prosecutor Nice): Do you know Admiral Jokic? A. (Witness Jovic) 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 Prosecutor v. Slobodan Milošević, Testimony of Witness Borisav Jović, Case No. IT-02-54-T, 20 November 2003, T. 29448-29449.
25. The Rule was introduced as a result of the decision in Prosecutor v. Dario Kordić & Mario Čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, Case No. IT-95-14/2-AR73.5, 21 July 2000.
26. This ratio was confirmed by the Trial Chamber in Prosecutor v. Slobodan Milošević, Order Rescheduling and Setting the Time Available to Present the Defence Case, Case No. IT-02-54-T, 25 February 2004, pp. 3-4.
27. 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 Prosecutor v. Slobodan Milošević, Prosecution's Motion for a Hearing to Discuss the Implications of the Accused's Recurring Ill-Health, Case No. IT-02-54-T, 23 September 2003.
28. (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 Prosecutor v. Slobodan Milošević, Procedural Discussion on the Application of Rule 92bis, Case No. IT-02-54-T, 13 March 2003, T. 17886.
29. Judge Kwon's Dissenting Opinion, supra note 5, para. 2.
30. Milošević Procedural Discussion on the Admission of Written Evidence, supra note 15, T. 5935. In other instances during the trial, Judge May 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.
31. Kordić Procedural Discussions, supra note 11, T. 3188-3215. During these discussions, 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.
32. As discussed in section F infra, (Judicial Notice of Adjudicated Facts), crimes committed in areas of Bosnia and Croatia have been fully litigated in a number of other cases at the Tribunal.
33. See Prosecutor v. Slobodan Milošević, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, Case No. IT-02-54-AR 73.4, 30 September 2003
34. (hereinafter "Decision on Interlocutory Appeal on Admissibility").
35. Decision on Interlocutory Appeal on Admissibility, supra note 37.
36. See also Prosecutor v. Slobodan Milošević, Interlocutory Appeal of the Prosecution Against the Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Case No. IT-02-54-AR73.4, 13 May 2003
37. (hereinafter "Interlocutory Appeal on Admission");
38. and Prosecutor v. Slobodan Milošević, Prosecution's Request for Certification of Appeal under Rule 73(B), Case No. IT-02-54-T, 23 April 2003.
39. Decision on Interlocutory Appeal on Admissibility, supra note 37, para. 19.
40. (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 Prosecutor v. Slobodan Milošević, Dissenting Opinion of Judge Hunt on Admissibility of Evidence-in-Chief in the Form of Written Statements, Case No. IT-02-54-AR73.4, 21 October 2003, paras. 20 and 22.
41. Decision on Interlocutory Appeal on Admissibility, supra note 37, para. 29;
42. Prosecutor v. Slobodan Milošević, Amici Curiae Reply to Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, Case No. IT-02-54-AR73.4, 21 May 2003, paras 14-17.
43. Prosecutor v. Stanislav Galić, Decision on Interlocutory Appeal Concerning Rule 92bis (C), Case No. IT-98-29-AR73.2, 7 June 2002, paras. 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).
44. Prosecutor v. Slobodan Milošević, 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, Case No. IT-02-54-AR73.4, 31 October 2003, paras. 20-22.
45. Some of these considerations were adverted to earlier in Judge Shahabuddeen's Partial Dissenting Opinion to the Decision on Admissibility, supra note 3, paras. 2, 19-20, 34-38.
46. Prosecutor v. Slobodan Milošević, Amici Curiae Motion for Judgment of Acquittal pursuant to Rule 98bis, Case No. IT-02-54-T, 3 March 2004.
47. Geoffrey Nice, Trials of Imperfection, 14 Leiden Journal of International Law (2001), pp. 383-397.
48. See Decision on Interlocutory Appeal on Admissibility, supra note 37, paras. 13-15.
49. See Prosecutor v. Slobodan Milošević, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Case No. IT-02-54-T, 10 April 2003
50. and Prosecutor v. Slobodan Milošević, Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Case No. IT-02-54-T, 16 December 2003.
51. Prosecutor v. Milomir Stakić, Order Summoning Dr. Biljana Plavsić Proprio Motu to Appear as a Witness of the Trial Chamber Pursuant to Rule 98, Case No. IT-97-24-T, 9 January 2003.
52. Kardić Procedural Discussions, supra note 11, T. 3188-3189.
53. Prosecutor v. Slobodan Milošević, Reasons for Decision on Assignment of Defence Counsel, Case No. IT-02-54-T, 22 September 2004, paras. 56, 64-65
54. 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, 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 was appealed by the assigned counsel on the Accused's behalf, the appeal being successful to the extent of a reversal of "modalities" of procedure. This means that the Accused's questioning of witnesses precedes questioning, if any, of the assigned counsel, see Prosecution v. Slobodan Milošević, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, Case No. IT-02-54-AR73.7, 1 November 2004. At the time of drafting of this chapter, the Accused's production and calling of witnesses has been comparatively orderly and there has been no real questioning by the assigned counsel, who now seek to withdraw from the case. The Chamber has been increasingly firm in its discipline of the Accused and in its requirement that the Accused, as someone wishing to run his own case, has to behave to the maximum extent possible as would counsel appearing for him. This issue is so complex and important that it cannot be discussed in a meaningful way in this chapter, therefore, the authors may write further on this issue when it is finally and conclusively resolved.
55. 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); Judge Shahabuddeen's Partial Dissenting Opinion to the Decision on Admissibility, supra note 3, para. 36.
56. Prosecutor v. Samuel Hinga Norman et al., Case No. SCSL-2004-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation under Article I7 (4) (d) of the Statute of the Special Court, 8 June 2004.