Monday, December 23, 2013

The Cost of Prosecution and Defence at the ICTY

by Luka Misetic

Every year or so, a new publication decides to recycle news about Croatia's spending on the defence of General Gotovina, and repackage it as an "exclusive."  I blogged about this last year here.  Now comes BIRN (Balkan Investigative Reporting Network) with another article, claiming to be an "investigation" about "suspect payments," which reports inter alia about how much Croatia allegedly spent on the defence of Croatia's three generals accused before the ICTY in the Operation Storm case.

Let me first point out the obvious.  Croatia spent a significant amount of money (whatever the amount really is)[1] on the defence of three men who turned out to be innocent, wrongfully accused by the Office of the Prosecutor, a point ignored in the BIRN piece.  One would think that in any retrospective discussion of the merits of spending on ICTY indictees, the ultimate determination of guilt or innocence would at least be a factor for consideration.

Second, Article 21 of the ICTY Statute acknowledges the Accused's fundamental right to "have adequate time and facilities for the preparation of his defence" "in full equality" with the Prosecution.   Defence spending thus should be compared with Prosecution spending to assess whether spending was generally equal in the case and thus in line with the Accused's fundamental rights, or whether spending was disproportionate.

According to UN documents, the Prosecution's budgets for the years 2006-2013 were as follows:

ICTY Prosecution Budgets

Thus, for the seven years of the Gotovina trial and appeal, the Prosecution had at its disposal a total of $310,000,000.00USD (I am excluding the budget for 2013 from the above numbers because Gotovina ended in 2012).  These figures do not take into account that the Prosecution conducted its investigation of the Gotovina case in the ten years prior to 2006, on which the Prosecution undoubtedly spent several million additional USD that are not reflected in the above numbers. 

Obviously, the $310,000,000USD was spent by the Prosecution for all of its cases and not just on the Gotovina case alone.  However, Gotovina was one of the Prosecution's higher profile cases (Gotovina having been mentioned in Security Council resolutions along with Karadzic and Mladic as the Tribunal's highest profile cases) and certainly received more Prosecution resources than the average ICTY case.  The Prosecution staffed its Gotovina team with at least ten trial attorneys, two case managers, three full time investigators, a military analyst unit, and an untold number of interpreters and other staff.  It is not unreasonable to think that up to one-tenth of the Prosecution's budget was committed to Gotovina, but a specific calculation of Prosecution spending on a case-by-case basis is impossible given that the Prosecution's costs are fixed while many of its resources (like attorneys, staff, office space, travel costs, etc) are used on more than one case.

Nevertheless, if one takes into account Prosecution spending from 1995 until the end of 2012 on the Gotovina case alone, it is probable that the level of Prosecution and Defence spending was roughly the same, which is exactly what Article 21 of the Tribunal's Statute guarantees:  "full equality" between the Prosecution and Defence in the preparation of their cases.  Gotovina was one of the rare ICTY cases where equality of arms with the Prosecution was actually achieved. The fact that this "full equality" was guaranteed by the United Nations, but funded by Croatia, is a benefit to the United Nations budget.

Whether Croatia should get a refund from the United Nations as a result of Carla Del Ponte's gross incompetence in falsely accusing three innocent Croatian Army officers is perhaps a topic to be discussed in the next journalistic "investigation" about costs at the ICTY.


[1] I do not know the actual numbers because I was not privy to information about the contracts of other lawyers and other defence teams with Croatia.