The international criminal tribunal for the former yugoslavia and the reluctant witness

International and Comparative Law Quarterly

Volumn 47, Issue 1, 1998, Pages 50-74

  Hampson, Françoise J ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

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EID: 85022381012     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S002058930006156X     Document Type: Article

References (91)

1. For documentary material on the establishment of the International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY), see Virginia Morris and Michael P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995,2 vols). For a commentary on the rules applicable to the operation of the ICTY.
2. see M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the former Yugoslavia (1996).
3. See generally Karine Lescure and Florence Trintignac, International Justice for Former Yugoslavia (1996).
4. The refusal to answer a question is sometimes represented as “the right to silence”. This is some thing of a misnomer. Nobody can compel someone to speak. The central issue is whether any inferences can or cannot be drawn from the refusal to answer a question. The right of the accused to remain silent is contained in r.42(A) of the Rules of Procedure (infra n.4). This article is dealing with the right of witnesses.
5. F-g. Kostovski v. Netherlands, Eur.Ct H.R., Series A, No.166
6. Windisch v. Austria, Eur.Ct H.R, Series A, No.186
7. Lüdi v. Switzerland, Eur.Ct H.R, Series A, No.238.
8. Rules of Procedure, IT/32/Rev.8, 23 Apr. 1996, rr34 and 96; see also rr.69 and 75. A Victims and Witnesses Unit has been established within the Registry but it is not yet functioning as originally envisaged; 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, Yearbook 1994, pp.37–38,102
9. Lescure and Trintignac, Yearbook 1994, at pp.51–57.
10. See generally Proposal of the International Women's Human Rights Law Clinic, Morris and Scharf, Yearbook 1994, at Vol.2, p.611
11. Christine Chinkin, “Rape and Sexual Abuse of Women in International Law” (1994) 5 Eur J.I.L. 326.
12. Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Decision of the Trial Chamber, Prosecutor v. DuSko Tadié, a.k.a. “Dule”, 10 Aug. 1995, Case IT-94–1-T.
13. Members of the ICTY are aware both of its unique character and also of its possibly being a prototype of a permanent international criminal tribunal; see the address of the President of the ICTY to the UN General Assembly, 14 Nov. 1994, Yearbook, “Dule”, at pp.134–143.
14. International Conference for the Protection of War Victims, Geneva, 30 Aug.-1 Sept 1993. IRRC, No.296, Sept-Oct 1993, pp 359–445.
15. Follow-up to the International Conference for the Protection of War Victims, IRRC, No 302, Sept-Oct 1994, pp.411–449; No 304, Jan.-Feb. 1995, pp.4–38.
16. Telford Taylor, The Anatomy of the Nuremberg Trials (1992)
17. Ann Tusa and John Tusa, 77k Nuremberg Trial (1983).
18. E.g. Annual Report of the ICTY, Summary, Yearbook, 77k Nuremberg Trial, at pp.88–89.
19. E.g. D. J. Harris, M. O'Boyle and C Warbrick, Law of the European Convention on Human Rights (1995)
20. Dominic McGoldrick, The Human Rights Committee (1994).
21. The “grave breach” provisions of the Geneva Conventions of 1949 on the protection of the victims of war are framed so as to be applicable only in relation to the class of victims protected by the particular Convention. That is defined in such a way as to mean that the “grave breach” provisions are applicable only in international armed conflicts. That, in turn, requires that the conflict be between the forces of two or more States. There is not only the issue of recognition of Statehood but also the factual question concerning under whose control forces are acting and the extent and nature of external support for indigenous fighters. See generally Interim Report of the Commission of Experts, UN Doc.S/25274, Feb. (1993), paras.36–46.
22. See also Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Decision of the Appeals Chamber in Prosecutor v. Duśko Tadić, a.k.a. “Dule”, 2 Oct 1995, Case IT-94–1-AR72
23. Opinion and Judgment of the Trial Chamber in Prosecutor v. Duiko TadU, a.K.a. “Dule”, 7 May 1997, Case IT-94–1-T, in which the majority.
24. Judge McDonald dissenting, were of the view that, at the material time, the conflict was non-international (para.607). The decision is currently subject to appeal and cross-appeal Fot texts of Geneva Conventions of 1949 and other humanitarian law treaties see Adam Roberts and Richard Guelff, Documents on the Laws of War (2nd edn, 1989).
25. James Gow, a British academic and specialist on security questions in the Balkans, has given such evidence in the proceedings against Tadić
26. E.g. the commanders of national contingents of UNPROFOR had to have dealings with the local commanders e.g. LtCol. Bob Stewart, Broken Lives (1993).
27. See infra nn 57–58 and accompanying text
28. The State could find itself implicated by the evidence of its armed forces where that revealed criminal conduct, conduct in breach of the mandate or of the applicable norms, including human rights law. Questions have arisen, e.g., about the conduct of various contingents in the operation in Somalia; see generally Françhise Hampson “States' Military Operations Authorised by the United Nations and International Humanitarian Law”, in L. Condorelli (Ed.), The United Nations and International Humanitarian Law (1996), pp 371–426.
29. A State could find itself with a different dilemma where it was required to produce evidence which, it claimed, would prejudice its legitimate national security concerns; see Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Decision of the Trial Chamber in Prosecutor v. Tihomir Blaśkié, 18 Jury 1997, Case IT-95–14-PT. The Trial Chamber ruled (para. 150) that “it has the authority and power to issue orders to States and individuals, including high government officials, for the production of documents required for the preparation or conduct of a trial… [T]here is a dear obligation on both States and their officials to comply fully with their terms. Any objection to an order for the production of documents, including a claim that a State's national security interests could be threatened by disclosure, does not automatically excuse the State or individual from compliance. Rather such claims must first be assessed by the relevant Trial Chamber.”
30. The subpoena was reinstated. The decision is currently under appeal. The issue of appropriate remedies for non-compliance with such orders is not discussed, being “not yet ripe for consideration” (idem, para.l). One possible remedy would be a finding of contempt in the case of an individual;
31. see text at infra Part IV.
32. S/RES/827 (1993), 25 May 1993, Morris and Scharf, infra, at VoL 2, pp.177–208.
33. Idem, Vol.l, pp.311–313.
34. Statute of the Tribunal, Art.29.2, Idem.
35. National legislation may be required to give effect to such an obligation: Bassiouni and Mnnikas, Idem, at p.910
36. see infra n. 30.
37. Extradition is normally used to refer only to transfers between States, normally under bilateral or multilateral treaty arrangements. It is common for civil law jurisdictions to refuse to extradite nationals. It would seem more appropriate to regard the transfers envisaged by the Statute as sui generis. See generally Bassiouni and Manikas, idem, pp.782, 787.
38. Rules of Procedure, idem, r.55(A).
39. Idem, r.55(B)
40. Morris and Scharf, Idem, at Vol.1, pp.312–313.
41. Rules of Procedure, Idem, r.90bis, introduced in 1995.
42. The commentaries, Idem, tend to focus on the transfer of the accused rather than that of witnesses.
43. Rules of Procedure, Idem, r.59(A).
44. Idem, r.59(B)
45. Colin Warbrick, “Co-operation with the International Criminal Tribunal for Yugoslavia” (1996) 45 I.C.L.Q. 947–954. Art.19 of the United Nations (International Tribunal) (Former Yugoslavia) Order 1996, S.I.1996 No.716, provides for the service of a summons from the ICTY to a witness. It imposes an obligation to comply with the summons, failing which a court may, at the ICTY's request, order that the person be arrested and delivered up to the ICTY undre Art.9 of the Order.
46. Bassiouni and Manillas, I.C.L.Q., at pp.940–941.
47. Rules of Procedure, I.C.L.Q., r.77(B). It is understood that witness L refused to answer questions put to him by the defence. He does not, however, appear to have been sanctioned for his refusal.
48. See Decision on Prosecution Motion for Production of Defence Witness Statements. Decision of Trial Chamber in Prosecutor v. Duiko Tadić, a.K.a. “Dule”. 27 Nov. 1996, Case IT-94–1-T, in which the Trial Chamber ruled. Judge McDonald dissenting, that defence witness statements were covered by legal professional privilege.
49. This was confirmed, in the case of medical confidentiality, by the Belgian Supreme Court Alexandre Faite, Crimes in Times of Armed Conflicts: the Problem of Testimony in Court of Humanitarian Organisations, LL.M. Dissertation, University of Essex, unpublished, p.26.
50. Cass, 15 Mar. 1948, Pas 1948, p.169, cited in Faite, idem, p.27
51. see also M. Franchimont, Cours de Procédure Pinole, Vol.1 (1984), p.262.
52. Sir Rupert Cross and C Tapper, Cross on Evidence (7th edn, 1990). p.416
53. BSC v. Granada Television [1981] 1 All E.R. 417,457 (per Lord Wilberforce).
54. [1978] A.C. 171.
55. E.g. in the Matrix Churchill trial, the accused employees sought disclosure of documents. Government ministers signed public interest immunity certificates. The judge examined some of the material and ordered disclosure of certain documents, which established the contention of the accused that government departments knew of their contacts and contract with Iraq. The ensuing scandal led to the setting up of the Scott Inquiry. See H. McCou-brey and F. J. Hampsou, “Evidence in Cases involving Proliferation Issues”, in Julie Dahlitz (Ed.), Future Legal Restraints in Arms Proliferation (1996), pp. 273–295.
56. The medical code of ethics is recognised by doctors worldwide. Whilst the code of ethics is. to some extent, recognised in most domestic jurisdictions, particular difficulties arise in relation to the disclosure of information. See generally Françoise Hampson. “Conscience in Conflict: the Doctor's Dilemma” (1989) XXVII Can.Y.B.I.L. 203–225.
57. Roberts and Guelff. Can.Y.B.I.L.
58. Hampson, Can.Y.B.I.L.
59. T. W. Harding. “La Contribution de rexpert-psychiatre à la procédure d'interdic-tion”. Revue du droit de tulelle, Suisse (1987), p.19
60. cited in Faite. Revue du droit de tulelle. at pp.3l-32.
61. Rules of Procedure, Revue du droit de tulelle, r.89(B); the “spirit of the Statute” includes Art.21. which is clearly based on the language in international human rights treaty texts on due process guarantees. See also Press Release on the Preliminary Motion for Protective Measures for Victims and Witnesses in the Tadić Case, Case No.IT-94–1-T-CC/P1IV 015-E.10 Aug. 1995, in which the Trial Chamber spoke of the need to achieve a balance between competing interests having regard to the jurisprudence of other judicial bodies, such as the European Court of Human Rights.
62. E.g. L v. Switzerland (Application No.12609/86) 64 D.& R. 84.
63. Faite, D.& R., at pp.17–19, 23–25.
64. Rules of Procedure, D.& R., r.70(B).
65. Morris and Scharf, D.& R., at Vol.1, p.357 suggest that this “new provision accomplishes the fundamental objective of the one proposed by the United States, while avoiding the concerns raised by that proposal”. It appears likely that concerns of IGOs such as UNHCR also played a part in the elaboration of the rule.
66. Rules of Procedure, idem, r.70(C).
67. Idem, r.70(D).
68. BBC Radio 4, “Medium Wave”, 12 May 1996; Ed Vulliamy gave evidence in the Tadiç trial.
69. E.g. Helsinki Watch, War Crimes in Bosnia-Hercegovina (1992), Vol.2 (1993).
70. The evidence suggests that, in some cases, journalists were intentionally targeted: idem, Vol.1. pp.121–131.
71. See also, Martin Bell. In Harm's Way (1996).
72. Protocol I of 1977, Additional to the Geneva Conventions of 1949, Art.79; Roberts and Guelff, In Harm's Way, at p.435.
73. “Protection of journalistic sources is one of the basic conditions of press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms … Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest”: Goodwin v. UK. Eur.Ct H.R. judgment of 27 Mar. 1996, para.39.
74. E.g. Sweden; information provided by Professor C. K. Boyle.
75. On the general exclusion of locally recruited staff see H. Kelsen, The Law of the United Nations (1951). p.314. n.l.
76. Final Report of the United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992). S/1994/674/Add.2 (Vol.1). Annex V. the Prijedor Report
77. Transcript of the Tadiç trial. 20 May 1996. pp.583–600.
78. For the shift in emphasis in the work of UNHCR, see UNHCR, State of the World's Refugees: In Search of Solutions (1995). It raises the question whether this represents a shift away from a specialist organisation dealing with the protection of refugees to an organisation co-ordinating and distributing relief to displaced persons.
79. Hampson, State of the World's Refugees: In Search of Solutions, at p.402.
80. African Rights, Humanitarianism Unbound, Discussion Paper. No.5, Nov. 1994.
81. McCoubrey and Hampson, Humanitarianism Unbound.
82. Faite. Humanitarianism Unbound.
83. Text accompanying Humanitarianism Unbound.
84. Faite, Humanitarianism Unbound.
85. Humanitarianism Unbound and accompanying text. States recognise the principle even within their own armed forces. It is not. however, without difficulties in practice, as was discovered by the Dutch medical contingent with Dutchbat in Srebrenica.
86. Marie-Thérèse Dutli and Christina Pellandini, “The International Committee of the Red Cross and the Implementation of a System to Repress Breaches of International Law”, 1 RRC. No.300. May-June 1994, p.250.
87. RRC.
88. Idem, Art.7.
89. Idem, Art.98.
90. Decision on the Defence Motion, Idem, at para.40.
91. An organisation called Responsibilité Internationale has sought the lifting of the immunity of Boutros-Ghali and Akashi with a view to bringing civil proceedings against them for their part in the failure of UNPROFOR to protect the civilian population in the “safe areas” of Bosnia-Herzegovina: “Une Action en Justice à Genève contre Boutros Boutros-Ghali et Yasushi Akashi”, Situation, No.28. Winter 1996–97, p.47.