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issued by a Trial Chamber.™™12 The tribunals™ expenses ˜˜shall be borne by
the regular budget of the United Nations in accordance with Article 17 of
the Charter.™™13 The mandatory language did not guarantee, however, that
vigorous support would be forthcoming.
Like the tribunals™ statutes, the ICC Statute creates judicial Chambers
(and Presidency), the Of¬ce of the Prosecutor (and Chief Prosecutor), and
the Registry (headed by the Registrar). Unlike the tribunals, the Registrar in
the ICC is elected by the judges and serves under the authority of the
President (a change explained in more detail later).


Tribunals without Context
The tribunals™ and Court™s lack of the kind of governmental framework
within which domestic justice systems operate creates two sets of problems:
an authority vacuum and management uncertainty.

Authority Vacuum
For the ICTY and ICTR, the Security Council served as a surrogate legis-
lature, albeit a delinquent one. Especially in their early years of operation,
the tribunals struggled to gain international support because the Security
Council largely ignored them, and they suffered from underfunding and
a lack of administrative oversight. The tribunals™ statutes left to the judges
the development of their own rules of evidence and procedure, thus mixing
judicial and legislative functions. Because the judges were designing their
own legal processes and executing them, critics could question the legiti-
macy and neutrality of their proceedings.14
For the ICC, founded under an international treaty, the Assembly of
States Parties (ASP) serves the function of a legislative body. With the
responsibility to establish rules of procedure and evidence and with the
power of the purse, the authority vacuum experienced by the tribunals was
not reproduced in the ICC treaty structure. Even though judges have some
latitude in interpreting the rules, they do not invent their procedures as they
go along, and the Court and the ASP are learning to coordinate the bud-
getary process. How the ASP will relate to the Court is still being worked
out because the Court, like the tribunals, has a high degree of autonomy.


12
Statute of the ICTY, Article 29; Statute of the ICTR, Article 28.
13
Statute of the ICTY, Article 13; Statute of the ICTR, Article 30.
14
Raab and Bevers, ˜˜The International Criminal Court and the Separation of Powers™™ (2006),
98“104.
48 Building the International Criminal Court

States disagree over the amount of oversight they should exert over the ICC,
and many of them are concerned about not intruding on the independence
of its judicial processes. The situation appears to be more stable than that of
the ad hoc tribunals, but some state representatives, observers, and even
Court of¬cials believe that a higher level of state engagement would bene¬t
the organization (see Chapter 6).

Management Uncertainty
The lack of a governmental apparatus creates a tendency toward manage-
ment chaos or paralysis. The tribunals and the Court, with their tripartite
structure of Chambers, Prosecution, and Registry, seek to keep a ¬rewall
between the judges, who must maintain neutrality, and the prosecution,
which needs to be independent. In domestic systems, law enforcement is
separated organizationally from justice procedures “ the courts and judges
are organized under a separate ministry or department from the police and
prosecutors, so judges maintain distance from enforcement, enhancing their
neutrality, and investigators and prosecutors are organizationally inde-
pendent, enhancing their ability to pursue transgressors. These tripartite
organizations suffer from the tensions caused by efforts to operate a single
organization ef¬ciently, while retaining the necessary internal separation
between their major organs.
Because the Presidents of the tribunals (and the Court) formally head the
organizations, while the Prosecutors set the pace of action by bringing cases,
presidential and prosecutorial policies may come into con¬‚ict, with no clear
way for such con¬‚icts to be resolved. Similarly, when Registrars clash with
Presidents or Prosecutors, Problems arise in maintaining prosecutorial
independence as well as judicial impartiality (toward cases that may come
before the President as judge). The three organs of the tribunals and Court
are locked in tight embrace, while simultaneously needing to delineate
responsibilities clearly and attempt to run their organizations ef¬ciently.


TRIBUNAL TRIBULATIONS

The ad hoc tribunals™ rules were devised hurriedly primarily by experts from
the United States and Great Britain.15 As a consequence, apart from lacking
juries, they are built on common-law blueprints of adversarial proceedings
mediated by neutral, ˜˜referee™™ judges. The pattern of prosecutorial initia-
tive in bringing and shaping cases in the tribunals re¬‚ects the dominance

15
Williams and Scharf, Peace with Justice (2002), 106.
49
Learning from the Yugoslavia and Rwanda Tribunals

of common-law concepts in their creation. By the time they had been
operating for a few years, and the ICC Statute was under intensive nego-
tiation, civil-law advocates sought to tilt the balance of the new court back
toward their tradition. In the ICC, a Pre-Trial Chamber of judges was
interposed between the Prosecutor and the Trial Chambers, opening at least
the possibility of greater judicial involvement in shaping cases.
Coordination between the tribunals™ organs was poor. The ICTYs judges
were empaneled in November 1993 and set to work on their rules of pro-
cedure. Appointment of the Prosecutor turned out to be problematic. The
United Kingdom opposed the obvious choice for the position, Professor
M. Cherif Bassiouni, the head of the Experts Commission who had reported
to the Secretary-General about crimes taking place in the former Yugoslavia.
The British feared that Bassiouni would quickly move to indict Serbian
of¬cials who were then involved in the (ill-fated) Vance“Owen peace nego-
tiations.16 The ¬rst Prosecutor, South Africa™s Richard Goldstone, took up
his post in summer 1994, following appointment by the UN Secretary-
General. Relieved that a prosecutor had ¬nally been appointed, President
Judge Antonio Cassese sought to speed judicial operations; Prosecutor
Goldstone, however, was consumed with building external support for the
tribunal.17 Tensions between the Chambers and the Of¬ce of the Prosecutor
(OTP) continued even after cases were under way. Goldstone pursued
a ˜˜bottom-up™™ strategy of seeking lower-level suspects before ascending to
major suspected criminals, frustrating the judges. Even after Louise Arbour
replaced Goldstone on October 1, 1995, tensions between judges and Pros-
ecutor continued. The common-law structure of the tribunals lent weight to
the independent Prosecutor, but the ability of the judges to write new rules
meant that they could swing the pendulum back in their own direction when
they decided to do so.
In both tribunals, the Registry, which is the administrative bureau, came
under the direct authority of the Secretary-General of the United Nations, as
the top administrative of¬cer of the international organization. Particularly
at the ICTR, the Registrar interpreted his administrative and budgetary role
as establishing him as the executive of¬cer of the tribunal. All hiring,
expenditures, and logistical management ¬‚owed through the Registrar. The
ICTR suffered from mismanagement and a lack of oversight. A 1997 UN
Of¬ce of Internal Oversight Services (OIOS) investigation showed that the

16
Ibid.
17
Hazan, Justice in a Time of War: The True Story behind the International Criminal
Tribunal for the Former Yugoslavia (2004), Chapter 3.
50 Building the International Criminal Court

Registrar, dominating all activities by virtue of budgetary control, had
brought the tribunal to a halt and was engaged in con¬‚ict with both the
President and the Prosecutor.18 The Secretary-General accepted the resig-
nations of Registrar Andronico Adede and Deputy Prosecutor Honore
Rakotomanana.19
The second Registrar, Agwu Okali, who had previously been Director of
the UN Centre for Human Settlements (Habitat), immediately came into
con¬‚ict with the judges and Prosecutor, wielding the same authority as had
his predecessor. A major struggle for power ultimately resulted in his
departure, the Secretary-General having acted only because of stringent
pressure from then“President Judge Navathenem Pillay of South Africa. The
terms of the con¬‚ict were very similar to the prior dif¬culties, with the
tribunal all but crippled by a failure of the administrative apparatus to
support the judicial and investigative activities, leaving crucial positions
vacant or staffed by incompetent individuals and failing to develop effective
document management and other necessary support systems for investiga-
tions and trials.20
In November 1999, Judge Claude Jorda was elected President of the
ICTY. Concerned about the slow pace of trials, he proposed to the Security
Council in June 2000 measures to streamline pretrial case preparation and
to add temporary (ad litem) judges to the trial chambers to increase the
number of simultaneous proceedings. Jorda argued that the tribunal should
focus on leading suspects and, connected with this, promote the creation
and turning over of other suspects to national tribunals. He believed that
these measures could reduce by half the time needed for cases, and thus
¬nish trials of ¬rst instance (that is, not including appeals) by the end of
2007, instead of an estimated 2019.21 The Security Council adopted Jorda™s
recommendations in December 2000, and the package became known as
the ICTY™s ˜˜completion strategy.™™22 The completion strategies are dis-
cussed in more detail later, but it is important to note here that the
President™s introduction of the idea did not sit comfortably with the Pros-
ecutor. Prosecutor Carla del Ponte indicated that the Court could not itself
fully determine the pace of activity because cases depended upon the speed
with which indicted suspects could be apprehended, additional evidence

18
UN General Assembly, ˜˜Financing of the International Criminal Tribunal for Rwanda,™™
A/51/789 (1997).
19
Allison, ˜˜News from the International War Crimes Tribunals™™ (1997).
20
Cruvillier, ˜˜ICTR: A Wind of Change™™ (2001).
21
Raab, ˜˜Evaluating the ICTY and Its Completion Strategy™™ (2005), 84“5.
22
Ibid., 85; UN Security Council Resolution 1329, 2000.
51
Learning from the Yugoslavia and Rwanda Tribunals

could bring new cases to light, and time needed for both prosecution and
defense was to some extent in the hands of the judges as they heard cases.
With the new completion strategy, the OTP increased its use of plea
bargaining arrangements, assisted in the establishment of a Bosnia special
war crimes tribunal, and began procedures to turn cases over to that Court.
The process required that the OTP petition the Chambers for approval to
send cases down to the local court; some of these were approved, but others
were retained at the ICTY by judicial decision. (There was disagreement in
some cases within the OTP whether such petitions should be submitted.)
In December 2000, the ICTY judges responded to the frictions of
interorgan coordination, creating a Coordination Council, made up of the
President, Registrar, and Prosecutor,23 and a management committee of
judges, the Registrar, Deputy Registrar and the Chief of Administration to
˜˜assist the President . . . concerning all Registry activities relating to the
administrative and judicial support provided to the Chambers and to the
Judges,™™ including in the preparation and implementation of the tribunal™s
budget, with the exception of budgetary lines speci¬c to the activities of
the OTP.24
Nonetheless, according to the ICTY™s former Registrar, writing in 2004,
the tribunals became generally regarded as ˜˜unwieldy instruments, with
a cumbersome bureaucratic structure.™™25 The independence of the Cham-
bers, OTP, and Registry ˜˜created a problem of accountability on two
levels.™™ Since each of the organs is largely independent, they aren™t
answerable to each other, and the nominal head of the tribunal, the Presi-
dent, reports to the Security Council but is subject to little oversight. ˜˜The
decentralization of power and accountability, coupled with the need to
respect judicial and prosecutorial independence, have been chronic pro-
blems for which no solution has been found.™™26
In response to the problems of the tribunals, and in particular the
overwhelming role of their Registrars, under the ICC Statute, the Registrar
is elected by the judges27 and reports to the President of the Court. The ICC
early instituted a coordinating committee, made up of the President, Pros-
ecutor, and Registrar, to ameliorate the problems of the tripartite organi-
zational structure. As explained further in Chapter 4, organizational
problems persist.

23
Rule 23bis, ICTY, Rules of Procedure and Evidence, IT/32/Rev.36 (2005), 18.
24
Rule 23ter, ICTY, Rules of Procedure and Evidence, IT/32/Rev.36 (2005), 19.
25
Zacklin, ˜˜The Failings of ad Hoc International Tribunals™™ (2004), 542.
26
Ibid., 543.
27
Statute Article 43.
52 Building the International Criminal Court


Judging the Judges
The process of selecting permanent judges for both ICTR and ICTY is
a largely diplomatic one, in which states nominate candidates, and the
Security Council selects a candidate list from among the nominees and for-
wards this list for election by the General Assembly by absolute majority
vote. Permanent judges are elected for four years and can be reelected. The
process has been criticized by observers who charge that neither the ICTY
nor the ICTR have consistently empaneled the most quali¬ed or experienced
judges. States™ diplomatic representatives have apparently viewed success in
nomination of judges to the tribunals and to the Court as adding to their
state™s prestige “ and thus elections have become exercises in campaigning
and logrolling rather than the determination of expertise.
ICC judges are elected by the Assembly of States Parties for nine-year,
nonrenewable terms. Despite criticism about the quality and quali¬cations of
tribunal judges, the ASP election process for ICC judges is no less political than
the General Assembly campaign and elections for the tribunals (see Chapter 4).


Prosecutorial Confusion, Poor Information Management
Under pressure from ICTY judges and public critics to begin trying suspects,
Prosecutor Richard Goldstone moved against a target of opportunity in 1995.
Dusko Tadic had been a rather low-level functionary of the Serb military who
was suspected of participating in the severe mistreatment of Muslim prisoners
in Bosnia. He was living in Germany, where his actions during the con¬‚ict
were well-known, and German authorities willingly transferred him to The
Hague. Goldstone argued that he was pursuing a ˜˜build up from the bottom™™
prosecution strategy; however, the case exacerbated observers™ concerns that
the tribunal would be useful only for catching the ˜˜small fry.™™ They were
worried that the tribunal would leave major transgressors free, protected by
their political connections and NATO™s reluctance to add to its operational
mandate the problem of apprehending suspected war criminals. However, the
Tadic case became important for the legal precedents set by the judges in the
course of the trial. Tadic™s defense included an attack on the tribunal™s legality,
and the Appeals Chamber used the opportunity unequivocally to establish the
Court™s legitimacy.28


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