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In
hindsight, these trials operated as an introduction to what would
come next – in 2002 – when I was appointed as the Principle Trial
Attorney in the biggest case held at the ICTY: The case against the
former President of Serbia, Slobodan Milosevic. The trial lasted
from 2002 to 2006, but ended without a verdict because Milosevic
died in his prison cell some two months before the trial was
scheduled to end. His death raised many questions about the
efficiency of international criminal justice and the lengthy trials
it produces. The modern day international courts were established in
1993, and they were just about to become fully operational when I
joined in 1998.
Before coming to work in The Hague, I had nearly
30 years of experience in the British legal system behind me that
allowed me to prosecute and defend people charged with crimes in the
U.K. I represented people on either side of civil actions where
people had been injured or damage had been done, and appeared
occasionally against the U.K. government. And I sat as a part-time
judge on "Old Bailey," the senior criminal court in England. Yet,
none of these experiences prepared me sufficiently for what was to
come. At this stage of the developing international criminal legal
system that was still in its infancy, there were hardly any role
models to follow or senior colleagues to learn from.
Small town perpetrator and genocide charges
My first case in The Hague was the case against
Goran Jelisic, a Bosnian Serb, who also went by the nickname
"Serbian Adolf." The nickname hardly needed any further explanation,
given that Jelisic, who was a small-time swindler before the
conflict began, rose to global notoriety with the publication of the
sequence of photographs showing him executing a Bosnian Muslim
civilian. The photographs were taken at the very beginning of the
war in the northern Bosnian town of Brcko, where Jelisic was given a
Serbian police uniform but no proper police education or training.
The only crime of Jelisic's victim was his ethnicity. Brcko was
designated by Serbs to be a part of the Serbian ethnic state; thus,
its ethnic composition had to be altered in favor of Serbian
ethnicity. The words "to be altered" are merely a euphemism for a
variety of crimes committed by the Serbian armed forces, often
consisting of ad hoc militias and paramilitary groups formed by
local thugs of the likes of Jelisic. His talent as an executioner
developed further when he became an authority figure at the local
makeshift detention center, also known as Luka camp, where he
selected victims at will for immediate summary execution by his own
hand.
It was a straightforward case, with an indictment
covering the first two months of the Bosnian war – May and June of
1992. Given the gravity of the crimes committed in Brcko as well as
the entire northern Bosnian area, the prosecution indicted Jelisic
with the crime of genocide along with crimes against humanity.
Eventually, Jelisic pleaded guilty to all charges except genocide.
He was sentenced to 40 years in prison.
The team I worked with consisted of lawyers from
Ukraine and France, and investigators from South Africa and Pakistan
– a mixture reflecting the U.N. requirement for a proportionate
geographic distribution of its employees. The trial chamber
consisted of one French judge, one Egyptian judge and one Portuguese
judge. I wondered – or rather worried – at the time how this
international tapestry of the court's legal teams and judges would
ultimately be viewed. Was this the best way to secure a fair trial
and deliver the kind of justice required for, and expected by, the
victims? I asked, by way of analogy, how anyone would feel facing a
life-threatening operation at a hospital with a surgeon from the
U.K., a head nurse from the Philippines, an anesthesiologist from
China and assistant surgeon from Guinea-Bissau. The patient might be
properly concerned not at the individual skills of the various
professionals, but at whether they could communicate and work
according to common, tested standards.
In the setting of international tribunals,
concerns about multinational legal teams go further than the
consideration of the ability to communicate properly due to language
barriers and differences in national cultures. National legal
systems differ significantly according to history and geography,
with the division between the adversarial systems of the U.K., U.S.,
Australia and others, and the inquisitorial system of most European
countries – and, indeed, of Turkey – being the starkest variation.
The former is a contest of proof between opposing sides – the
prosecution and defense – played out before and judged by judges or
juries; the latter is an inquiry into truth conducted by judges with
advocates playing a wholly different role, and the verdict not being
perceived as a victory by one "side."
Adversarial legal system and cultural
imperialism
When the first ad hoc tribunals for the former
Yugoslavia and Rwanda were founded in the early 1990s, the
adversarial legal system was adopted in what was seen by some as an
act of cultural imperialism by the U.S., U.K. and other powerful and
influential states. To be fair, the "task forces" in charge of the
new tribunals largely came from countries operating the adversarial
system and, accordingly, the Statutes of the Courts as well as their
rules, regulations and practices followed those with which these
"pioneers" were familiar.
Even though as a U.K. barrister I was most
familiar with the adversarial legal system, in The Hague, I swiftly
grew to understand that it might not be the best way to prosecute
those charged with mass atrocities. It is true that the great virtue
of the system is that the evidence of witnesses who may be
unreliable or dishonest can be tested – hammered out, sometimes
fiercely – on the anvil of cross-examination. But it remains a game
where proof by the prosecution or the blocking of proof by the
defense is the essence of the game.
Adversarial trials take a very long time,
certainly where war crimes are the subject matter, and are
particularly vulnerable to appeals – sometime technical – that add
to their duration.
Now, almost 20 years after the first modern
international criminal courts were established, there is a growing
understanding among the world public that if the international legal
system is to survive it needs to correct its apparent shortcomings
step-by-step. Some questions to discuss is what, if anything, a
world citizen like you and me can do with criticisms and requests
for improvement of these courts? How can we turn these criticisms to
the good and prevent the permanent International Criminal Court
(ICC) from becoming an ivory tower of justice? And how can we ensure
that it becomes a lasting home of respected justice that the world
citizen seeks and deserves?
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