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40
Zacklin, ˜˜The Failings of ad Hoc International Tribunals™™ (2004), 542.
59
Learning from the Yugoslavia and Rwanda Tribunals


An Old (Retributive) Justice Paradigm
The ICTY Statute is purely an ˜˜old justice™™ document. Although the
preambular paragraphs of the ICTR Statute pay some respect to ˜˜new justice™™
objectives (see following discussion), it does not set up any restorative (new)
justice mechanisms.41 The two tribunals™ missions are fully articulated in their
formal, long names found in UN documents: the ˜˜International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991™™ (ICTY) and the ˜˜International Criminal Tribunal for the Prose-
cution of Persons Responsible for Genocide and other Serious Violations of
International Humanitarian Law Committed in the Territory of Rwanda and
Rwandan Citizens Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States, between 1 January and
31 December 1994™™ (ICTR). In neither of the (practically identical) statutes is
mention made of duties toward victims or witnesses, save that the judges, via
their rules of procedure and evidence, will provide for the protection of victims
and witnesses, including the conduct of in camera (closed) hearings and pro-
tection of victims™ identities.42
In the hurry to establish the ICTY, tribunal President Antonio Cassese
turned to U.S. proposals for the Rules of Procedure and Evidence.43 The
Rwanda tribunal adopted the ICTY rules. Coming from U.S. sources, the
tribunals were constructed as primarily common-law, old-justice-paradigm
institutions. Trials were adversarial, pitting prosecution against defense in
front of a panel of judges that would serve as referees, occasional inquisitors,
and determiners of guilt. There were some non-common-law aspects to the
rules, in that hearsay evidence was acceptable, there was no jury (verdicts to
be determined by the judges), and verdicts and sentences could be appealed
by both the defendant and the prosecution. As outlined in the next section,
a stream of amendments to the rules gradually increased the judges™ roles in
managing the tribunals and tilted in the direction of civil-law procedures.44
In their original form and actions, the two tribunals regarded victims and
witnesses as important for providing evidence for prosecution and of con-
cern to the extent that their participation in the operations of the tribunals


41
ICTR Statute, preambular paragraphs, ˜˜Convinced™™ and ˜˜Stressing.™™
42
ICTY Statute, Articles 15, 22; ICTR Statute, Article 14.
43
Williams and Scharf, op cit., 106.
44
Knoops, An Introduction to the Law of International Criminal Tribunals: A Comparative
Study (2003).
60 Building the International Criminal Court

might be dangerous for them. Neither tribunal focused upon the effects of
their actions upon the larger societies in which the witnesses and victims
continued to live, or directly upon the lives of those people. Trials were to
be held in locations remote from the crimes (The Hague and Arusha,
Tanzania, respectively), and contact back to the areas in which the crimes
took place was basically for collection of evidence. In the ICTY, the best
that could be hoped for was that its mere existence would provide a mea-
sure of deterrence to potential perpetrators of additional crimes while the
con¬‚ict over which it had jurisdiction continued.


Tribunals™ Evolution: Toward Civil Law and New (Restorative) Justice
The ICTY and ICTR passed their tenth anniversaries as much larger
organizations with somewhat different objectives than those with which
they began. Pressures to improve ef¬ciency, respond to victims, affect local
populations, and contribute to development of legal systems in the con¬‚ict
areas had led to changes in their operations and expansion of their tasks.
Many of the activities eventually undertaken by the ad hoc tribunals, added
by this evolutionary process, are now expected of the ICC and largely built
into its Statute.

Victims
Neither the ICTY or ICTR Statute mentions victims. The term ˜˜victim™™ is
de¬ned in the 1994 Rules of Procedure and Evidence of the ICTY.45 Rule 34
creates a Victims and Witnesses Unit under the Registrar to (i) recommend
protective measures for victims and witnesses and (ii) provide counseling
and support for them, in particular in cases of rape and sexual assault.46
The rules give a judge or chamber the right to order measures for the
privacy and protection of victims and witnesses, as long as these don™t
interfere with the rights of the accused. Such measures can include cloaking
the identity or whereabouts of victims or witnesses or their relatives,
removing names from the tribunal™s public records, and not disclosing
identifying records, testimony through image- or voice-altering devices, and
assignment of pseudonyms.47 The Registry™s Victims and Witnesses Unit is
to advise witnesses that their identity might be disclosed later and/or in

45
Rule 2 De¬nitions. ˜˜Victim: A person against whom a crime over which the Tribunal has
jurisdiction has allegedly been committed.™™
46
Rule 34, February 1994. The rule was amended in 1999 (adding Part B) instructing the
Registrar to give ˜˜due consideration™™ to the ˜˜employment of quali¬ed women.™™
47
Rule 75.
61
Learning from the Yugoslavia and Rwanda Tribunals

another case. The Court (judges) is to ˜˜control the manner of questioning to
avoid any harassment or intimidation.™™ Special rules apply in cases of
sexual assault, stipulating that (i) no corroboration of the victim™s testimony
shall be required; (ii) consent shall not be allowed as a defense if the victim
has been threatened or has reason to fear violence, duress, detention, or
psychological oppression or had reason to fear that another would suffer
these if the victim didn™t comply; (iii) before a claim of victim consent can
be admitted, the accused shall ˜˜satisfy the Trial Chamber in camera that the
evidence is relevant and credible™™; and (iv) prior sexual conduct of the
victim shall not be admitted in evidence. In sum, articles dealing with
witnesses and victims seek to enable testimony while minimizing trauma
and retribution but go no further than the involvement of these people as
part of the trial functions of the tribunal.48

Gender Crimes
The ICTY, under the leadership of U.S. Judge Gabrielle Kirk McDonald and
Costa Rican Judge Elisabeth Odio-Benito, added Rule 96 to the tribunal™s
Rules of Procedure and Evidence to protect victims and witnesses who were
involved in testifying about sexual crimes. Chief Prosecutor Judge Richard
Goldstone responded to women™s groups™ suggestions by appointing a gen-
der legal adviser to his of¬ce, and, responding to further briefs and sug-
gestions from women™s advocates, he gradually ˜˜mainstreamed™™ gender
crimes into indictments. The Foca indictment of June 1996 was the ¬rst in
which rape was charged as a form of torture, and enslavement and other
forms of sexual violence such as forced nudity and sexual entertainment
were charged as inhumane treatment.49
At the ICTR, Judge Navanethem Pillay, the only woman on the Trial
Chamber hearing a genocide and crimes against humanity case against Jean-
Paul Akayesu, insisted herself on questioning women who had been testifying
about other alleged crimes. In a pivotal moment for international justice,
Judge Pillay evoked from the women testimony that they had witnessed rape
and had themselves been rape victims. A coalition of NGOs came together as
the Monitoring Project on Gender-Related Crimes, and the ICTR sent
˜˜numerous critical letters™™50 to Chief Prosecutor Judge Louise Arbour. Briefs
were ¬led, Rwandan women™s groups organized protests, and the indictment

48
Rule 96.
49
Copelon, ˜˜Gender Crimes as War Crimes: Integrating Crimes Against Women into
International Criminal Law™™ (2000), 230; ICTY, Prosecutor v. Gagovic et al., Indictment,
Trial Chamber (June 26, 1996), Case No. IT-96-23/2.
50
Copelon, op cit., 225.
62 Building the International Criminal Court

was amended,51 although ICTR of¬cials claimed that this was due to the
testimony, not the agitation. On September 2, 1998, the ICTR Trial Chamber
convicted Akayesu of genocide and crimes against humanity, including rape
as a crime against humanity and as an instrument of genocide.52

Outreach
In 1999, President Gabrielle Kirk-McDonald was dismayed to discover that
Serbs did not care about the ¬ndings of the Tadic case, as far as could be
determined, because they viewed the ICTY as a tool of the Muslims for
propaganda against the Serbs.53 After consultations with NGOs, the ICTY
initiated its ˜˜outreach™™ program, although no regular budget funds were
allocated to it. The program has been supported by the United States,
United Kingdom, European Union, and Scandinavian countries, with some
project funds contributed by private foundations.
Despite great suspicion about the tribunal in former Yugoslavia, an
outreach coordinator was only ¬rst hired in the fall of 1999, a staff was
assembled in 2000, and regional of¬ces were set up in Zagreb (mid-2000)
and in Belgrade, Sarajevo, and Pristina in 2001. The tribunal™s Hague
headquarters™ Public Information Of¬ce did not include speakers of local
languages until 2006, and only when the outreach program hired local
language speakers after 1999 did the ICTY™s communications in the area
begin to connect with the local populations.54 As an ICTY of¬cial put it in
2006, ˜˜We can™t undo the damage™™ of losing six years between the startup
of the tribunal and the beginnings of the outreach program in late 1999.
When the outreach program ¬nally began, the tribunal was in a deep public
relations hole; political actors demonized it to establish their own nation-
alist credentials.
Seen locally as an exercise in victors™ justice, critics charged that the
tribunal was illegitimately created. Leaders in Serbia and the Serb areas of
Bosnia-Herzegovina impeded investigators™ access, intimidated potential
witnesses, and actively prevented police and military personnel from
speaking with investigators. Even victims see its failings more than its
utility, according to outreach personnel. Since the tribunal has focused on
major perpetrators and not local ones, the vast majority of victims don™t see

51
ICTR, Prosecutor v. Jean Paul Akayesu, Amended Indictment, ICTR Trial Chamber (June
1997), Case No. ICTR-96-4-1, Indictment Counts 1, 2, 13“15. Available at <http://www.
ictr.org>.
52
Askin, ˜˜Legal Precedents in Rwanda Court™™ (May 2001).
53
Interview, ICTY outreach personnel, spring 2006.
54
Interview, ICTY outreach personnel, spring 2006.
63
Learning from the Yugoslavia and Rwanda Tribunals

their own persecutors brought to book. Since prosecutions take place on
multiple sides of the con¬‚ict, people from every group can point to prose-
cutions of their own heroes “ and this grates more seriously than is com-
pensated by prosecution of the enemy.
In 1999, during NATO™s air war intended to drive Serbian forces out of
Kosovo, NATO spokesperson Jamie Shea gave ammunition to the tribu-
nal™s critics when he made it sound as if the ICTY worked at NATO™s
behest. When asked whether NATO would fall under ICTY scrutiny fol-
lowing Serbian complaints about indiscriminate bombing, Shea said that
the tribunal would investigate only if NATO permitted it to do so. Although
Carla del Ponte did investigate the Serbian charges, when she decided there
was no case to be pursued against NATO, it looked like a put-up job.55
Faced with local ignorance and misunderstanding, the tribunal sought to
bring greater knowledge of its operations into the area primarily by
bringing legal professionals to The Hague for seminars and information
sessions and, gradually, by establishing the ¬eld of¬ces and putting on local
events to publicize the work, achievements, and nature of the tribunal.
The Security Council™s rationale for creating the Rwanda tribunal
explicitly cited some of the ˜˜new justice™™ objectives missing in the ICTY
resolution. The council was convinced that ˜˜the prosecution of persons
responsible for serious violations of international humanitarian law
would . . . contribute to the process of national reconciliation and to the
restoration and maintenance of peace™™ and stressed ˜˜the need for interna-
tional cooperation to strengthen the courts and judicial system of Rwanda,
having regard in particular to the necessity for those courts to deal with
large numbers of suspects.™™56 The seat of the tribunal, in Arusha, Tanzania,
guaranteed that contact with local populations would be a major problem,
however, and tense relations with the Rwandan government also ensured

55
NATO press brie¬ng, Jamie Shea, spokesperson (May 16, 1999): ˜˜I think we have to
distinguish between the theoretical and the practical. I believe that when Justice Arbour
starts her investigation, she will because we will allow her to. It™s not Milosevic that has
allowed Justice Arbour her visa to go to Kosovo to carry out her investigations. If her court,
as we want, is to be allowed access, it will be because of NATO so NATO is the friend of
the Tribunal, NATO are the people who have been detaining indicted war criminals for the
Tribunal in Bosnia. We have done it, 14 arrests so far by SFOR, and we will continue to do
it. NATO countries are those that have provided the ¬nance to set up the Tribunal, we are
amongst the majority ¬nanciers, and of course to build a second chamber so that
prosecutions can be speeded up so let me assure that we are all one on this, we want to see
war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo
and looks at the facts she will be indicting people of Yugoslav nationality and I don™t
anticipate any others at this stage.™™
56
ICTR Statute, preambular paragraphs, op cit.
64 Building the International Criminal Court

that a positive reputation for the tribunal in Rwanda would not easily be
established. ICTR personnel recognized the need for some kind of outreach
program, but like the ICTY, these efforts commenced in 1998, only several
years after the tribunal began operating. Unlike the ICTY, no separate of¬ce
was established to coordinate them. Outreach was added to existing press
and public affairs responsibilities.57
The ICTR outreach program sought to ˜˜win the hearts and minds of
a skeptical populace in two ways: (i) ˜improve the image and gain support
of local people through local information dissemination and (ii) commu-
nication and training of Rwandan media and legal professionals.™ ™™58 The
ICTR set up an internship program for Rwandan students to serve in the
tribunal and opened an information center in Kigali in the fall of 2000.
Court judgments began to be translated into Kinyarwanda in 2000, but
these materials are not regularly distributed to Rwandan courts, lawyers, or
other interested people. The Web site contains all the judgments, but it is
not available to the vast majority of citizens. Rwandans were not selected as
judges or other high-level of¬cials at the tribunal, so there is little knowl-
edge transfer directly into the legal community. Only in 2005 was
a Rwandan trial lawyer added to the Of¬ce of the Prosecutor to argue a case
in Arusha.
Another problem for the ICTR™s legitimacy in Rwanda is its tense rela-
tionship with the government. A dilemma confronts the tribunal. To promote
reconciliation between the perpetrators and victims of the genocide in
Rwanda, the tribunal may need to consider prosecuting Tutsi suspects for
crimes against Hutus, in addition to the ongoing prosecution of Hutus.
However, the tribunal also needs good relations with the government in order
to carry out any operations in Rwanda, and prosecution of Tutsis is exactly
what the Rwandan Patriotic Front (RPF) government has been resisting.
Building credibility with the population and contributing to reconciliation,
therefore, runs directly against building credibility with the government,

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