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28
ICTY, ˜˜Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction™™ (October
2, 1995), para. 55.
53
Learning from the Yugoslavia and Rwanda Tribunals

When Louise Arbour took over as Chief Prosecutor of the two tribunals
in 1996, she strengthened prosecutorial operations, used public demands
and media appearances to build support for the Court, and pressured major
countries to take responsibility for implementing the tribunals™ mandates.
Her implicit threat to shame Western countries into supporting the Court
helped the tribunals establish themselves as serious factors in international
criminal justice. To make the threat clear, Arbour reversed her predecessor™s
pattern of issuing public indictments and then decrying failures to arrest
suspects. She issued secret indictments, informed the International Force
and Stabilization Force (IFOR and SFOR) authorities, and indicated that if
arrests were not forthcoming, the secret indictments would be publicized,
indicating to the public that the international forces had not acted to sup-
port the law. Resistance and opposition gradually gave way to arrests in late
1997.29
But even with the improved process of bringing suspects to The Hague seat
of the ICTY and Arusha courtrooms of the ICTR, internal problems slowed
prosecutions. Trial attorneys at the ICTY complained that the lack of pros-
ecutorial direction led to collection by investigators of huge amounts of
information that was, unfortunately, not explicitly tied to legal charges or
cases. Thus, much of the information was ultimately unusable, and assem-
bling cases for presentation in Court was hindered by inaccessibility, poor
cross-referencing, and an excess of disorganized materials that needed to be
reviewed in order to ¬nd the information necessary to build the cases.
Judges found that prosecutors, following common-law practice, tended
to charge suspects with all possible crimes for which they could be held to
account, resulting in lengthy indictments (in Blaskic, for example, more
than sixty separate charges). These then required enormous evidentiary
proof for conviction. No mechanisms existed in the formal structure of the
Court to limit prosecution aims. Gradually the judges exerted increasing
control over the proceedings, infusing the otherwise common-law (adver-
sarial, accusatory)-dominated process with some of the conventions of civil-
law (inquisitorial) systems.
For example, successive amendments to ICTY Rule 65 show the
increasing involvement of judges in the early stages of cases. The original
rule (1994) dealt with the provisional release of suspects under the authority
of the Trial Chamber. In July 1997, the judges amended the rules, adding
Rule 65bis under which the Trial Chamber (or a single judge thereof) would
convene a ˜˜status conference˜˜ within 120 days of the initial appearance of

29
Hazan, Justice in a Time of War (2004), 94“8.
54 Building the International Criminal Court

the accused (and on 120 intervals thereafter) to expedite preparations for
the trial, review the status of the case, and permit the accused to raise issues.
The intention was to keep the process moving on a schedule not established
by the Prosecutor, but under the compulsion of the rules.
In July 1998, Rule 65ter was added, and then amended in 1999 and 2001
with increasingly detailed procedures giving responsibility for expediting
and monitoring the pretrial activities of prosecution and defense to a ˜˜pre-
trial judge.™™ The rule moreover calls for the pretrial judge to develop
a ˜˜work plan™™ with obligations and deadlines for the parties to the trial.
Not only did it require a senior legal of¬cer to ¬le reports regarding progress
and dif¬culties as the prosecution and defense moved toward trial, but it
also required the prosecution to ¬le a pretrial brief with summaries of
evidence and the form of accountability to be adduced for each count
against the accused, along with a statement of agreed facts not under
contention by the two parties and a list of witnesses with various details
about how they will be used in the trial. When the ICC Pre-Trial Chambers
set about pressing the Prosecutor for more information about what he was
doing, it appeared that they were seeking to duplicate this structure without
it having been created in the rules of the new court.
Even as the judges sought to expedite the trials, due-process standards,
prosecution and defense maneuvers, and the accumulated problems of
connecting investigation evidence to prosecution cases continued to drag on
the process. Objectives for ef¬cient trials, due process for defendants,
adequate scope for prosecution, appeals, and other incidental circumstances
such as the health of defendants clashed throughout the tribunals™ histories,
perhaps most infamously demonstrated by the four-year-long prosecution
of former Yugoslav President Slobodan Milosevic that ended with his death
and the inconclusive termination of the trial in March 2006.
The negotiators of the ICC Statute implemented formally what had
evolved in the ICTY/ICTR rules by establishing Pre-Trial Chambers along
with the Trial and Appeals Chambers in the new Court. According to
Claude Jorda, former President of the ICTY and a judge of the ICC from
France, the Pre-Trial Chamber of the ICC ˜˜is the embryo of a true Inves-
tigative Chamber,™™30 a primary structure of civil law (and the French legal
system). Chapters 6 and 7 describe the dynamics of the ICC Pre-Trial
Chambers™ relations with the Of¬ce of the Prosecutor; Judge Jorda has
played a major role.

30
Jorda, ˜˜The Major Hurdles and Accomplishments of the ICTY: What the ICC Can Learn
from Them™™ (2004), 578.
55
Learning from the Yugoslavia and Rwanda Tribunals


Cooperation with States and International Institutions
International cooperation with the two tribunals was mandated by their
creation under Chapter VII of the UN Charter by the Security Council.
Formal requirements of cooperation, of course, don™t produce action
unless those who are supposed to cooperate decide to do so. For the ICTY,
cooperation was needed from the governments controlling areas in which
suspects were to be found, from governments of countries where crimes took
place (and hence where evidence should be available), and from organiza-
tions working in these areas, such as outsider military forces (NATO, United
Nations) that could locate suspects and help apprehend them.
Lack of cooperation has been a major hindrance for both tribunals.
Political leaders in the states in which suspects and evidence were to be
found sometimes opposed the operations of the tribunals, protected sus-
pects, and kept information and evidence secret. The most glaring examples
are Serbia™s failure to apprehend, arrest, and transfer to the ICTY Serbian
General Ratko Mladic and Bosnian Serb leader Radovan Karadzic, both
charged with responsibility for, among other crimes, the massacre of more
than 7,000 Bosnian Muslims at Srebrenica. Despite the indictments issued
in 1995 by Louise Arbour, pressure from the European Union and United
States, and the assertion by Prosecutor Carla del Ponte that the Serb gov-
ernment knew the men™s locations and was protecting them, neither had
been turned over to The Hague tribunal eleven years later. Prime Minister
Vojislav Kostunica of Serbia has generally rejected the legitimacy of The
Hague tribunal, using the refusal of cooperation as proof of his nationalist
credentials.
In addition, international actors have only opportunistically supported
the tribunals. Arrest of war crimes suspects has taken second place to other
political priorities for peacekeeping and intervention forces, which have
been reluctant to arrest suspects due to fears that this would in¬‚ame local
resentments, possibly leading to armed confrontations, and could reduce
the perception that the intervention forces were neutral. The rule of law
took second place to the quest for the peace for which the intervention and
peacekeeping forces were mandated. Louise Arbour and later Carla del
Ponte both criticized NATO forces for avoiding confrontations with sus-
pects and their supporters, even apparently permitting free passage to
known indictees through checkpoints and across borders. For NATO to
become involved would require command decisions establishing arrest as an
objective for soldiers on the ground. This ¬nally began to happen under the
56 Building the International Criminal Court

media pressure created by Louise Arbour in highly publicized actions
such as her visit to the Kosovo border seeking entry in 1998 to document
violations there.31


Resource Problems
Because of the dif¬culties of gaining ¬nancial and political support for
the tribunals especially in their early years, the Chief Prosecutors32 spent
enormous amounts of time away from the direct prosecutorial aspects of
their jobs and were instead leading diplomatic efforts seeking ¬nancial
support, striving to convince countries and alliances to help apprehend
suspects, and pressing for governmental cooperation with investigations
in the territories where crimes were committed. During its ¬rst several
years, the ICTY operated on a shoestring. Its budget had to be approved
through the Advisory Committee on Administrative and Budgetary Ques-
tions (ACABQ), whose procedures, mandated by the United States in the
early 1990s, requires consensus to pass the UN budget. The United States
originally insisted on the condition in order to exert greater control over the
UN budget; however, a quarrel erupted in the committee over whether the
Security Council, by mandating General Assembly appropriation of funds
for the tribunals, had overstepped its authority. In its ¬rst year of operation,
compared to the $32.6 million requested by the Secretary-General for the
ICTY, the General Assembly, at the behest of the ACABQ, appropriated
only about $11 million.33 Prosecutor Goldstone spent his ¬rst months
in of¬ce seeking to raise the awareness of the Secretary-General and the
UN bureaucracy about the needs of the tribunal. In addition, he raised
contributions of $8.3 million from thirteen countries and the promise of
services of ¬fty-three countries, mostly the United States; personnel were
donated to the tribunal free of charge.34 Nonetheless the funding problems
continued to be so serious that the OTP was initially unable to pursue
vigorous investigations into the site of the Srebrenica massacre in the
summer of 1995, and the Tadic case, slated to begin in November, had to be
delayed until the subsequent May due to a shortage of funds for defense
counsel and investigators.

31
Hazan, op cit., 125“7.
32
Richard Goldstone, 1994“1995; Louise Arbour, 1995“1999; Carla del Ponte, both ICTY
and ICTR, 1999“2003; Carla del Ponte, ICTY only, 2003“current; Hassan Jallow, ICTR,
2003“current.
33
Williams and Scharf, Peace with Justice (2002), 110.
34
Ibid., 111.
57
Learning from the Yugoslavia and Rwanda Tribunals

In August 1995, the General Assembly decided to shift half of the
tribunals™ budgets to the peacekeeping budget, which circumvented the
ACABQ. From then, the ¬nancial situation eased for both tribunals. The
ICTY reached its peak size in 2003 with an annual budget of approximately
$130 million and a staff complement of more than 1,060 of¬cial UN
posts.35 The Rwanda tribunal peaked in 2006 at an annual budget of
approximately $130 million and 1,040 of¬cial UN posts.36
By 1999, Security Council members were becoming nervous about
the expanding budgets and lengthening estimates of time necessary to ful¬ll
the mandates of the two tribunals. The judges too were concerned about the
slow pace of trials, and both tribunals set about developing plans for
bringing their activities to a close. Their completion strategies and the
discussions and innovations that followed ¬ltered directly into thinking
about the ICC as it began operations after 2002.
The principles behind the strategies are (a) to focus on high-level viola-
tors, (b) to turn cases over to local tribunals when possible, especially those
of lower-level functionaries, (c) to limit cases to the most important charges
rather than saturating the cases with all possible charges that then need to
be presented in court, and (d) to use judicial authority to expedite court
presentations by limiting extraneous testimony, limiting cross-examination,
encouraging defense and prosecution to submit agreed facts on paper, and
requiring both sides to submit information to the judges about their planned
courses in trial. The ICTY/ICTR strategies do not establish direction from
above (the Security Council) or within (the judiciary) about case choice or
charges. The principle of Prosecutor independence has been well main-
tained, but within the constraints of a hiring freeze and increasing pressure
to hold down the budgets.
In 2005, tribunal completion strategies that included ˜˜joining of cases
with a similar crime base and the conduct of trials with multiple accused™™37
were reaf¬rmed to the General Assembly. For the Rwanda tribunal, new
amendments to the rules of procedure and evidence allowed judges to
streamline and accelerate pretrial and trial proceedings by various methods,
including considering motions on written pleadings instead of holding
hearings, taking judicial notice of adjudicated facts or documentary evidence
from other proceedings before the tribunal, continuing with trial for


35
ICTY, ˜˜Tenth Annual Report to the General Assembly™™ (2003).
36
ICTR Web site, General Information.
37
UN General Assembly, ˜˜Report on the Financing . . . ™™ of the ICTR and ICTY (December
15, 2005), para. II.4.a.
58 Building the International Criminal Court

a limited time in the absence of a judge, and allowing parties to have ˜˜stand-
in™™ witnesses to replace witnesses who are unable to testify.38 Both tribunals
pursued other measures to expedite translations, transcripts, and document
sharing electronically and to reduce defense counsels™ incentives to prolong
the trials. By this time, administrative reforms in the tribunals were drawing
upon the logistical innovations of the ICC Registry as it established its new
methods, and the ICC Registry was in continual contact with the tribunals™
Registrars to learn about what methods had helped them to streamline their
processes “ learning was taking place in both directions.


OPERATIONAL AND LEGAL INNOVATIONS

The ad hoc tribunals, for all their dif¬culties in getting under way, broke new
ground in the development of international criminal law. Their primary
accomplishment was simply to show that the United Nations could create
machinery to counter the impunity of perpetrators of international crimes.
Their creation led, in some observers™ views, to ˜˜tribunal fatigue™™ in the
Security Council, but that fatigue reinforced pressures to create a standing
international criminal court.39 The tribunals established milestone interna-
tional criminal legal precedents important to the ICC and other international
and mixed international“domestic courts. They contributed, both with their
achievements and their shortcomings, to the accumulating wisdom of the
international criminal justice practitioners™ community.
While the theory behind the tribunals may have included elements of
restorative justice, and a conviction on the part of their supporters that
justice would contribute to peace, the operational mandates of the two
tribunals called upon them to investigate, apprehend, and try perpetrators
of the crimes. To do this, the statutes set up an independent and powerful
Prosecutor, an independent set of judges™ Chambers, and the Registry, to
support the operations. What began, in one critic™s terms, as ˜˜acts of
political contrition, because of egregious failures to swiftly confront the
situations in the former Yugoslavia and Rwanda,™™40 gradually evolved to
include greater elements of civil law structures, to build coordination
mechanisms to increase court ef¬ciency, to improve prosecution focus to
speed trials, and to implement ˜˜outreach™™ programs to seek to have some
positive effect in the areas where crimes were originally committed.

38
Ibid., para. II.4.b.
39
Scheffer, ˜˜Challenges Confronting International Justice Issues™™ (1998), 1“6.

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