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Unjust from the start...
By Dr. Kosta Cavoski
This concludes Kosta Cavoski's series, "Unjust from the Start." The earlier articles are:
When in the medieval age the Inquisition wanted to protect an important witness who was ready to testify that he/she had seen a suspect communicating with the devil the witness was allowed to appear in court with a mask, or hood, over the face. This was how the court heard the "truth", and the witness was protected from the evil eye of the witch who might take revenge after being burned at the stake.
In its fervent desire to protect the victims and witnesses of war crimes in the former Yugoslavia from the [Serbian] devil, the makers of the Rules of Procedure and Evidence similarly undertook to disguise the identity of these victims and witnesses.
Thus, according to Rule 69 "in exceptional circumstances, the Prosecutor may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such a person is brought under the protection of the Tribunal. This type of temporary concealment of a victim's or witnesses' identity can be understood, especially as paragraph (C) of this Rule stipulates that "the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defense".
What should not have been allowed under any circumstances was the permanent concealment of the identity of victims or witnesses, neither the allowing of a witness to refuse to answer a question on "grounds of confidentiality". This is foreseen in Rule 70 paragraphs (B), (C) and (D). Inasmuch as the Prosecutor obtains information given to him on condition it remains confidential he can not disclose its source without the agreement of the person or entity (15) who supplied it. This would not be so unusual if such information were not used as evidence at the trial. But the Prosecutor, with the consent of the person or representative of an entity, may decide to use documents and other material obtained in this way as evidence at the trial. In this case - and this is indeed something very new - "the Trial Chamber may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber, for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance". Still, the Prosecutor may call as a witness a person or entity that has offered confidential information, but the Trial Chamber may not compel the witness to answer any question the witness declines to answer on the grounds of confidentiality.
One can ask what kind of witness gives the Prosecutor confidential information and then refuses to answer further questions as to how such information was obtained when the Trial Chamber has no right to insist. As a rule they are undercover agents who have been operating illegally in foreign countries in order to collect information that can not be obtained by regular means. They are also governmental representatives who have provided The Hague Tribunal with confidential information on condition that it conceal the source of the information as well as the manner in which it was obtained. The only remaining question is whether such "evidence" can be accepted as valid or such clandestine "witnesses" believed at all.
Another innovation that was introduced by the makers of the Rules was testimony without the obligation to appear at the trial. According to Rule 71, at the request of either party, the Trial Chamber "may, in exceptional circumstances and in the interest of justice, order a deposition be taken for use at trial and appoint for that purpose, a Presiding Officer". Naturally, it sometimes happens that an important witness, for health reasons, is unable to leave his home or hospital to attend a trial. But in such cases a hearing, under the presidency of the judge, is held in the witness' room where the witness answers the questions of the prosecution and defense. Allowing a court officer to take a deposition on his own whenever the Trial Chamber considers it to be "in the interest of justice", increases the possibility of abuse and prevents the confrontation of witnesses testifying differently about the same subject.
The greatest "innovations" introduced by the Rules was the permanent concealment of the identity of witnesses, victims or anyone related to or associated with them. Under the guise of preserving privacy and protecting a witness or victim, according to Rule 75 a judge or trial chamber can, at a session in camera [i.e., a closed session], take:
Even this was not enough for the makers of these Rules and so they added the possibility of closed sessions and appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.
Judicature without Sovereignty
There is no doubt whatsoever that the measures for the protection of a witness which the Holy Inquisition was capable of offering were a child's game compared to those provided by the Ruler of The Hague Tribunal. The Inquisition was only able to offer a frightened witness the possibility to enter the court by a side door under cover of night and with a hood over the head. Possibly, and very probably, the Inquisition would have taken the same measures as The Hague Tribunal Rules had it been able to use the technology at the disposal of The Hague judges today.
So as to understand more easily the "singularity" and also the exceptional possibilities of violation of the aforementioned measures for protecting a victim or witness, we will present a hypothetical example. Let us suppose that in an American city with disturbed and very strained inter-racial relations the sexual assault of a member of one race group by a member of another takes place. Terrified by the possible revenge of the relations and neighbors of the attacker, the victim asks the court to be allowed to testify under a pseudonym using image- and voice- altering devices. Would the American court allow this? Certainly not. And one of the reasons would be that such "testimony" would prevent a fair trial.
After such a convincing example, it is necessary to ask the following question. Why can American courts refuse this type of testimony and The Hague Tribunal accepts it when both are concerned with the protection of a victim or witness from possible reprisal by the accused, his relatives or friends? The answer is surprising: the American court firmly believes that the American judicature, including the police, is capable of offering such protection. And as a rule it is, except in the rare cases of organized crime. The Hague Tribunal is well aware that it is not up to this and justifiably assumes that the so-called international community, as embodied by the Security Council, has no intention whatsoever of protecting any victim or witness from the Balkan cauldron. So, if no-one is ready to protect the victims or witnesses, then at least their identity can be hidden.
Had they taken one more step in forming this judgment, the Hague judges would have had to ask themselves whether, under such conditions, they should have taken on the job of judging at all if in order to protect victims and witnesses they had to use measures that were implemented by the Holy Inquisition. Had they any idea of the concept of sovereignty, they would have asked the Security Council how it thought they could take to court anyone if they were unable to provide the conditions necessary for the execution of judicature. When in his famous work "Leviathan" Thomas Hobbes demonstrated the essential traits of sovereignty, he included
In the execution of judicature it is most important that sovereignty provides general and complete protection of all subjects from injustice by others. Because otherwise
In other words, he who would judge and is able to do so, is sovereign; and as sovereign is bound to offer all subjects staunch protection from violence and the injustice of others. Who is unable of offering the second should not stand in judgment because he is not sovereign. The members of the Security Council, particularly the permanent members, wanted the first - to judge - without being capable of providing the second - reliable protection. This resulted in the concealment of the victims' and witnesses' identities and other measures as a clumsy attempt to achieve what must be provided by a well instituted and effective sovereign power.
Due to these important failings on the part of the Security Council and The Hague Tribunal, a whole series of other unusual regulations to the ridicule and shame of this Tribunal and its founders were created. Particularly characteristic is Rule 99 which allows the arrest of a suspect who has been acquitted. Truly a contradiction! However, this contradiction came about for practical reasons. When the jury of an American court of first instance brings a verdict of not guilty the accused leaves the court room a free man, able to go where he will. The prosecution can, of course, appeal against the first instance verdict but it can not demand that an acquitted person stay in detention until a second instance verdict is given. Sometimes the second instance court revokes the first instance verdict and demands a retrial. Since the suspect is free it may happen that he will not answer a summons by the first instance court This, however, does not cause much worry as it is assumed that the police, as an organ of sovereignty, must be capable of carrying out every court order and bringing the person in question to trial.
The judges of The Hague Tribunal know very well although they are unable to admit this publicly, that their sovereignty applies only to the court room in which they judge and the prison where witnesses, suspects and the accused are held. This forced them to make these contradictory rules. In paragraph (A) of Rule 99, they stipulate that "in case of acquittal the accused shall be released immediately". Then in paragraph (B) they recant this rule by allowing the Trial Chamber, at the mere hint of the Prosecutor submitting an appeal to "issue a warrant for the arrest of the accused to take effect immediately". Thanks to this sophistry, the accused can be freed and arrested at one stroke. Had The Hague judges the ability to think logically, they would have otherwise formulated the rule applied here: the Prosecutor shall decide on the freeing or detaining of a person acquitted by a first instance Trial Chamber. Truly in the spirit of the aforesaid Ottoman proverb: "The Cadi prosecutes, and the Cadi sentences".
To those well acquainted with constitutional and criminal law the rule that allows for a witness to testify against himself is a real surprise. Modern criminal law explicitly forbids this and a witness can refuse to answer incriminating questions. For a long time this important legal guarantee has been represented by the Fifth Amendment of the US Constitution of 1787 whereby "no person .... shall be compelled in any criminal case to be a witness against himself ".
The authors of The Hague Tribunal Rules did not pay much attention to this great example and wrote Rule 90 paragraph (E) which allows for forced self-incrimination:
It is worthwhile asking why the rule makers allowed for the forced self-incrimination of a witness if such evidence would not be used against him. They were probably presuming that war crimes are most often carried out by groups of people who, if they are forced to do so, will implicate each other. Supposing The Hague Tribunal had the opportunity of imprisoning two persons suspected of committing the same war crime without either knowing the fate of the other. One could be forced to testify against the other with the assurance that his testimony would not be used against him, and vice versa. In this way the Prosecutor can obtain evidence against them both without there formally having been any self- incrimination. To our great surprise the rule makers were very perfidious in this matter, with no concern for the fact that their resourcefulness and ingeniousness was in direct contradiction to the principle of modern criminal law that self-incriminating cannot be exacted.
Finally, the above mentioned rules contain a series of undefined concepts which allow for whimsicality and caprice. A characteristic example is given by Rule 79 which permits the exclusion of the media and public from court proceedings or part of the proceedings for the following reasons:
1) public order or morality;
2) safety, security or non-disclosure of the identity of a victim or witness, or
3) the protection of the interests of justice.
In a well founded legal system only public order and morality are considered to be valid reasons for the partial or complete exclusion of the public from court proceedings, and this only under strictly defined circumstances. The secrecy of court proceedings through concealment of the identity of a victim or witness is inadmissible, as already shown, while the "interests of justice" as a reason for the exclusion of the public, is yet another innovation whereby The Hague Tribunal "enriched" legal theory and practice. Justice is the supreme legal value and since law and judicature exist for the realization of justice, the provision of "interests of justice" as one of the reasons for the exclusion of the public was done in order to create a blanket discretionary norm which would allow the Trial Chamber to do what it wanted under the umbrella of expediency. The term was also introduced as an excuse for the taking of depositions for later use at a trial (Rule 71 paragraph A) and acceptance of evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law (Rule 93 paragraph A).
Finally, Prosecutor Richard Goldstone did not want to miss the chance of possibly using or abusing the very elastic norms containing the loose term "interests of justice". This is why he included in the regulations regarding his own power (being his own legislator), the stipulation that in certain circumstances he could grant any concessions to persons who participated in alleged offenses in order to secure their evidence in the prosecution of others (for example, by refraining from prosecuting an accomplice in return for the testimony of the accomplice against another offender), and that this "may be appropriate in the interests of justice".(18) He hereby made it known that he would be acting on his own will and not in his official capacity, and that certain executors of alleged crimes could be acquitted in return for cooperation, i.e. if they were willing to blame their accomplices. This kind of trade-off was what he called justice.
"Justice not Seen to be Done"
Justice is taken to infer a certain type of equality, primarily an elementary equality before the law. It would appear that the members of the Security Council knew this when they introduced the following regulation into the Statute of the International Tribunal:
This kind of equality is taken to mean that all detained persons at The Hague have exactly the same conditions of detention and that no exceptions will be made. However, The Hague Tribunal judges believed that justice was what they thought it to be, and so they introduced into their rules a regulation allowing for important differences in the conditions of detention. According to Rule 64
This is as if a Mafia boss in the US were to request of the judge responsible for trying his case that he be allowed to await trial in his own villa from where he had previously carried out his "business" on condition he pay from his own pocket a prison guard to prevent him from absconding.
However paradoxical this example may seem, this is what happened at The Hague. While the terminally ill Serb General Djordje Djukic was interned in a prison cell without adequate medical care, the Croat General Tihomir Blaskic, through his powerful patrons, made a deal with the Tribunal President that he await trial in a luxurious villa surrounded by guards paid by his "friends", instead of in prison. According to Antonio Cassese this was done in the interests of justice - the kind of "justice" whereby it is easy "to be a cardinal if your father is the pope".
There is an English saying: "Justice has not only to be done, but to be seen to be done". What could be seen at The Hague was not justice but caprice and injustice.
(15) Being a state, one of its institutions or some organization.
(16) Thomas Hobbes, "Leviathan", edited by C.B. Macpherson, Harmondsworth. Penguin Books 1982, p. 234
(18) Regulation No. 1 of 1994, as amended 17 May 1995.
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