By Eduardo Reyes*
The end is near for the groundbreaking international tribunal established to try alleged crimes committed in the conflicts of the former Yugoslavia. Eduardo Reyes travelled to The Hague to assess its achievements.
There was a time in the mid-1990s when it seemed the main legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY) would be the fact that it had been constituted and issued indictments.
The first court of its kind since the Nuremberg and Tokyo tribunals, it faced an enormous obstacle that those predecessor tribunals did not. In many cases, its indictees remained politically powerful, well connected and at large.
Where the areas in which the indictees lived had been pacified, such was the fragile nature of peace it was widely believed their apprehension risked restarting a conflict that had left more than 100,000 dead in Bosnia and Herzegovina alone.
Even with the establishment in 1995 of the UN mandate to police Bosnia and Herzegovina, very little could be done actively to pursue people indicted by the ICTY. ‘There was a snag in the military mandate,’ recalls Bob Reid, the New South Wales policeman who arrived at the tribunal to help establish its investigations function in mid-1994.
International soldiers present under the mandate could only make an arrest ‘if they came across an indictee in the course of exercising their duties,’ Reid, now chief of operations in the ICTY’s Office of the Prosecutor, recalls. Active pursuit was, for now, out of the question.
‘I have no hard facts on this,’ Reid concedes, ‘but when Tony Blair came to power and Robin Cook became foreign secretary, things changed.’
It was not just a change in the political weather that enhanced the ICTY’s ability to apprehend people and bring them to The Hague, Reid and his colleagues note. Unprecedented collaboration was required between prosecutors, investigators and the army — and their omnipresent, indispensable interpreters.
The relationship between general Sir Mike Jackson, commander of Nato’s ACE Rapid Reaction Corps from 1997 to 2000, and investigators like Reid was also key. General Jackson’s attitude, Reid notes, was that people indicted for war crimes, including genocide, should not be freely walking around the mandate area. He also believed that risks could and should be taken to secure the evidence ICTY investigators required.
In July 1997 dramatic events brought that collaboration to public attention, when British soldiers moved to arrest individuals indicted for their involvement in crimes committed in the municipality of Prijedor. They included Prijedor’s deputy mayor Dr Milan ‘Mi?o’ Kova?evi?, who was arrested at the hospital where he worked as an anaesthetist. Former chief of police Simo Drlja?a was killed while resisting arrest. ‘If World War III was going to start, it should have been when Drlja?a was killed in the attempt to transfer him to the tribunal,’ Reid observes. Instead the apprehension of indictees became accepted.
So began in earnest an 18-year process. This ensured that of the 161 individuals indicted by the ICTY — individuals from all sides of the conflict — not one is at liberty, unless the tribunal found them ‘not guilty’ or they have served their sentence.
Just four trials have yet to issue a judgment — those of former president of the Republic of Serbian Krajina, Croatia, Goran Hadi?; former Serbian Republic president Radovan Karadi?; former Bosnian Serb army chief Ratko Mladi?; and Republic of Serbia assembly member Vojislav eelj. Karadic and eelj’s trials are complete. Hadi?’s trial is currently adjourned for health reasons. Mladi?’s trial is ongoing.
The first indictees to arrive at The Hague’s Scheveningen detention centre were not set to face a tribunal that had fully established its way of working. Counsel and judges came from very different legal backgrounds. The genuinely international composition of the tribunal lent it credibility, but also shone a light on the lawyers’ differences — notably an evident tension between those from common law jurisdictions and those from civil law countries.
A legal officer in chambers, the unit that supports the tribunal’s judges, Jonas Nilsson notes the different judicial norms: ‘There was no manual: nothing written. At the beginning of the tribunal, they came and started. They [employed] the style they were used to.’
For example, some from a civil law inquisitorial system ‘used to be very involved’ in questioning witnesses, he says.
Defence counsel Gregor Guy-Smith characterises the ICTY as ‘one of the more successful experiments in this area’. He describes it as a ‘petri dish’ with ‘disparate legal cultures, disparate ways of solving problems and disparate judicial attitudes’.
As defence counsel, or, where the accused refused legal representation, special adviser, Guy-Smith focuses on the impact such differences have on proceedings. ‘Rival ideas could have been integrated more robustly,’ he argues.
The effect on the burden of proof is a particular bone of contention. This was evident, he says, in two decisions to order a retrial in cases where the defendant had been acquitted. ‘In the case of Ramush Haradinaj  the reason for a retrial was not predicated on the conduct of the defence,’ he suggests, which in a common law tradition would have been the focus of the decision (Haradinaj was again acquitted at the retrial).
Guy-Smith is also critical of steps to speed up the trial process, including a heavier reliance on written records of witness testimony given and accepted in previous trials: ‘Unfortunately, over time it has moved from a culture of orality, to a way of bucketing information that disallows an objective, insightful, comprehensive analysis.’
Conversely, Nilsson observes, judges who have presided over a number of cases have ‘already stepped out of their own system and become international judges’.
The time taken from indictment to judgment is an issue for the ICTY, as it is for observers. The Srebrenica massacre, the systematic killing of 7,000 Bosnian Muslim men and boys, took place in July 1995, yet the ICTY’s most recent judgment, concerning an appeal by Zdravko Tolimir, was handed down this April, when his conviction for genocide, murder and crimes against humanity was confirmed.
Then there is the high-profile case of Mladi? — whose indictment includes the Srebrenica massacre, the killing of detainees and civilians, and shelling and sniping in the Bosnia and Herzegovina capital Sarajevo.
‘It is somewhat frustrating now to be trying an old man who has had two strokes, rather than a man who was a strong and fit person in 1995,’ Reid notes, pointing out that Mladi? was not arrested until 2011, and Karadi? in 2008. The office of the prosecutor has had to balance the aim of fully trying serious crimes, with the length of detention — and health — of defendants.
‘Is it a good idea to have someone in detention for so long? That’s a legitimate question,’ Nilsson notes.
In Mladi?’s case the defence is close to concluding, but prosecutors have applied to reopen, following the discovery of a new mass grave at Tomaica in autumn 2013. As prosecutor Ed Jeremy, a one-time Linklaters solicitor who has worked on the Tomaica investigation, relates: ‘Approximately 27 bodies had been found there in 2000 on this site, but they didn’t then dig deep enough.
‘We are up against the clock with the health of the accused — always an important consideration,’ Jeremy admits, but he still supports the move to add Tomaica to the charge sheet. Nilsson hopes that an acceptance of the time such cases take, and the reasons, will be better understood in future. ‘We have to accept that if we would like to have these kinds of trial of high-level persons for complex crimes there are going to be very large indictments,’ he says. ‘This means trials will take a long time.’
The impressive degree to which the tribunal has synthesised common and civil law traditions into a process that largely works should be a key legacy for the ICTY. It is among the things that tribunals established since for Rwanda, Lebanon and Sierra Leone have come to study.
Gabrielle McIntyre, chef de cabinet to the president of the ICTY, says: ‘In the beginning, the tribunal’s judges developed rules of procedure and evidence that, while they merged common law and civil law traditions, were in many ways weighted more towards the common law, adversarial approach. Over time, however, the judges made numerous revisions to the court’s rules, and civil law practices and procedures have come increasingly into play as a result.’
According to McIntyre, these civil law influences have enabled judges to manage their courtrooms and the evidence in a particular case more efficiently. As an example, she points to rule changes allowing the judges in one case to rely on documented evidence from other cases — rather than hearing the same evidence again. But, she adds, safeguards are observed to ensure that these rule changes do not impair the fairness of the proceedings.
Mapping a conflict
A commitment to completeness, evident in the prosecution’s Tomaica decision, leads to another logistical challenge: how to conceive, investigate and then present the vast complexity of the relevant events.
One of the first things one notices at the ICTY is maps. Maps and wall charts are everywhere. They range from yellowing Times and Sunday Times charts that summarise the basic geography and chronology of events, to detailed contour maps of regions, copies of Bosnian Serb army maps and aerial photographs of mass grave sites.
Depending on the immediate focus of their work, others have annotated images. Stuck to Nilsson’s wall is an A3-size photo of the city of Sarajevo, with sniper positions marked with highlighter pens. Jeremy, currently dealing with ballistics, has pictures of various handguns. In a process that has 9.5 million documents as evidence, everyone relies on the practical ‘dashboards’ they have constructed. These are often to be found jostling for space with photos of court staff’s own families.
The courtroom must also meet the need for complex evidence to be presented to the multilingual participants in the trial. And a wholly fair trial would be a challenge without the work of the audiovisual unit. The unit’s Marta Fracassetti walks me round an empty Courtroom 1, current home of the Mladi? trial, being heard by judges Alphons Orie of the Netherlands, South African Bakone Moloto and Germany’s Christophe Flügge.
The court is a sea of flat screens. There are two for each of the court’s participants, including defendants and witnesses. The screens can be used to show visual evidence, which can be drawn on from the witness stand using a special pen. This can instantly capture as evidence a witness’s identification of a person, place or event on the image presented. Users can switch between other options, including a transcript of the interpreter’s words they have heard through the headphones. For their own ease of reference, users have the option to highlight certain words or passages.
Detention centre’s ‘perfect’ example
The detention arrangements for those facing trial have been subject to close scrutiny. ‘Detention is a legacy product of the tribunal,’ the ICTY’s deputy registrar Kate Mackintosh says. The Scheveningen detention centre is inspected by the International Committee of the Red Cross. ‘We would like to leave the perfect rules,’ Mackintosh adds. ‘An international standard that has more force than the UN’s minimum standard rules for the treatment of prisoners. It’s top of mind.’
‘The ICRC consider us as a reference for detention facilities all over the world,’ the detention centre’s commander, Mikko Sarvela, says. ‘We want to emphasise to the detainees that we are not part of the trial. They are returning “home” when they return from the court.’
Any detainee can ask to see Sarvela and some points they raise have attracted media attention. They have included complaints about the food, which he characterises as ‘institutional’ but ‘nutritious’. Detainees can purchase, at their own expense, Balkan food items from a special menu.
The profile of the detainees is ‘unique’, he notes. ‘Their average age is 64. And they include former ministers, presidents, generals.’
If a detainee is convicted, the ICTY’s registry moves to organise the enforcement of their detention in one of 17 European countries which have agreed to accept ICTY prisoners. Click here for more details.
Many of the logistics turn on language and nuances of translation can be of central importance. During proceedings a single word can be in dispute, as Jeremy explains: ‘The word “?i?enje”, for example, refers to something like “mopping up the terrain of enemy soldiers”. But it could also be used euphemistically, to refer to ethnic cleansing. The meaning is of critical importance.’
In filming proceedings, the audiovisual unit has several aims. The six cameras in each court are there to provide a permanent record of the trial. But in capturing witness testimony that may have relevance to more than one case, the film may itself constitute evidence. It is also a key way for the ICTY to inform the world of its proceedings — a significant commitment, aimed not least at the people of the former Yugoslavia, while protecting the identities of certain witnesses.
‘We must choose the most objective shot,’ Rob Barsony, the audiovisual unit’s producer explains. ‘We are a raw footage provider, therefore everyone can manipulate our material. So we want to give them, as a starting point, the most objective material.’
Often this entails filming in a way that runs against the norms of Barsony’s background in commercial television. ‘Some don’t like me for refusing to do a close-up of a shaking hand, or a witness or party who is sweating. Cameras can enhance emotion, creating an emotional disparity,’ he says.
The process Barsony works with must also accommodate the need to protect witnesses. ‘Several protective measures are in place for vulnerable witnesses so we can run our trials in open session,’ he adds. That includes time delay to enable broadcast to take place 30 minutes later, allowing for redaction of material from the publicly available video record. ‘It prevents people from compromising their own protection. In making a record of this kind, it is hugely significant that we have a time delay machine.’
Should such a circumstance arise, someone in court will ask to go to ‘private session’. The suggested redaction is presented for sign-off by a judge and taken to the studio, where the material is removed from the broadcast. There is no break in proceedings.
The International Criminal Court (ICC) has been able to adopt the ICTY’s audiovisual policies and procedures for future trials. The audiovisual record is also worthy of study in a broader sense, as Barsony notes: ‘Sexual violence jurisprudence has been developed in our courtrooms. It will be there to study for international law students.’
The record is also used in the ICTY’s groundbreaking outreach work. The trials have been streamed online since 1999, and all public court records are available in ‘BCS’ on the internet (Bosnian/Croatian/Serbian is the neutral designation of language now adopted by the international community). In June 2011, the ICTY’s YouTube channel was watched live by 40,000 people in the former Yugoslavia when Mladi? made his initial appearance.
Outreach officers in Sarajevo and Belgrade (their work in Zagreb and Pristina concluded in 2012) may face threats in the course of their work, which includes time spent in schools and events such as screenings of films about the conflict. But there are positive experiences. Solicitor Kate Mackintosh, the ICTY’s deputy registrar, relates the screening in Prijedor of outreach’s documentary on the wartime prison camps, held at 2am.
‘It was during the Ramadan Iftar, and Ed Vulliamy, one of the journalists who broke the story in 1992, was in the audience,’ she says. ‘The electrifying silence that held throughout the film was followed by cheers and applause once the credits rolled. The documentary director recalls one former camp inmate coming up to shake his hand, telling him: This is it. This is our story. At last it’s been told.’
Victims and witnesses
UK judge Howard Morrison notes there would be no trials ‘without the participation of the victims and witnesses’ who come to the ICTY to testify and be cross-examined. But he also believes many would not have come ‘without the work of the victims and witnesses section’ of the ICTY.
‘In many of the worst cases, orientation is important,’ says Greg Townsend, who runs the court’s support services section. ‘The aim is to provide witnesses with as much information as possible.’ That includes explaining cross-examination and the court’s setup: ‘It’s about helping them cope.’
Whether they are a detainee, witness insider, have held high office, are a ‘linkage witness’ who connects an accused to a crime scene where he was not physically present or a crime-base witness, ‘the majority have never even been a witness in a local court before’.
Townsend’s colleague Helena Vranov Schoorl has a pivotal role in the support needed by many witnesses. She lived in the former Yugoslavia until she was 13, before arriving in the Netherlands. There she became a social worker, working with people who had experienced sexual violence.
‘Quite a few staff members have that overlap,’ she notes. ‘Their partners are from the region, or they have lived there. It is crucial to have at The Hague people who are BCS-speakers.’ In the early days of the tribunal, the ICTY avoided recruiting staff direct from the region, so people who had a link to the region were highly valued.
‘It is a complex process,’ Vranov Schoorl continues. ‘You must build trust with witnesses. The focus is on asking what type of witness do I have here?. Our services are tailored to each one to minimise their stress.’ Trained staff can provide ‘psycho-social’ support.
Stress, she notes, ‘starts when they hear they have been admitted to the witness list and called for the purpose of trial’.
The attitude of witnesses varies hugely, Vranov Schoorl says: ‘Some say “bring it on — I survived”. Others are taken aback. We have to assure them that this is not a one-on-one encounter [with the accused].’ The section will even make arrangements for covering the caring responsibilities that witnesses may have for children or elderly relatives.
Witnesses are allocated a number by court support services and only staff know which number matches which witness. This means a case can be referred to in making transit and other arrangements, and around the ICTY, without non-staff linking a witness to a case.
Section staff remark that at one level they are a travel agency — but an agency with big responsibilities. ‘We are in the business of providing temporary and permanent protection,’ Townsend observes. Most witnesses at the ICTY testify openly and then return home.
But, he adds: ‘A very small percentage of witnesses — less than 1% — are relocated. The challenge of relocation is biggest for the witness. We have to do applications one state at a time, subject to a long vetting process.’ Where they are ‘insiders’, he adds, they may have a criminal record, which brings an added complication.
For a few at the ICTY, their work on the former Yugoslavia may not end when the tribunal closes. Some will join the ‘Mechanism for International Criminal Tribunals’ (MICT), the small body established to carry out remaining duties of the ICTY and the Rwanda tribunal. Some will be involved with the ICTY’s 11 appeals, the final judgments for which are expected by November 2017. The rest are brushing up their CVs.
There are building materials in some of the ICTY’s corridors. In work that seems symbolic, one of the courtrooms is in the process of being turned into an archive room — so continuing in the service of the mandate, which includes a commitment for the record of the court’s proceedings and its evidence to be preserved and publicly available.
‘The ICTY has generated huge volumes of records. The volumes here are extraordinary for archivists,’ Elizabeth Emmerson, the MICT’s chief archivist, says. ‘Jaws drop. The scale of the task is monumental.’
Emmerson leads a team of 11 archivists and the lessons learned in organising the archive are among its legacies (she is among those transferring to the MICT). ‘Had there been an archivist here in 1995, there would be a lot less to do now,’ she notes, observing that early archiving methods ‘were developed on the fly’.
She adds: ‘In 40 or 50 years the archives will be the tangible legacy, alongside the jurisprudence.’
That jurisprudence broke new ground in important areas, McIntyre explains: ‘Previously, it was thought that with the exception of common article 3 [treatment of captured combatants], the Geneva Conventions could not be applied to internal conflicts.’ Through the accepted jurisprudence of the ICTY, she notes, the distinction between rules applying to international armed conflict and those applying to internal conflicts has, for the most part, ‘melted away’.
Crucially, McIntyre adds, that means the work of the ICC and future tribunals is less dependent on the media pressure that effectively forced the hand of the security council when it established the ICTY. The ICC can draw on established definitions of what constitutes a ‘crime’ that were hammered out here.
It can also draw on the pool of individuals whose work shaped the ICTY, including many from the former Yugoslavia.
‘They may have been drawn here because of their commitment to the region and by personal motivations to see justice [done],’ McIntyre concludes. ‘But now they are international civil servants and have acquired valuable professional experience and expertise that offers them a broader view of the conflicts in the region and of international justice more generally. Some who have worked at the ICTY have moved on and are using their skills to contribute to the work of other courts and bodies, including the STL or working to try and ensure accountability for the crimes committed in Syria.’
* This article was originally published here.