HOW THE ICTY CAN STILL SALVAGE THE ŠEŠELJ TRIAL

By Luka Misetic

Vojislav Šešelj has this week returned to Serbia to a "victorious" welcome by his Serbian Radical Party supporters.  From any perspective, Šešelj’s trial has been an unmitigated disaster, lasting over eleven years with no trial judgment on the horizon.  Šešelj was allowed to turn the trial into a circus by (1) regularly insulting prosecutors, judges, witnesses and court staff, (2) needlessly delaying the proceedings with antics like his hunger strike, and (3) intimidating protected witnesses by disclosing their identities in violation of court orders.  Yet the court refused to ban him from the courtroom or to impose counsel on him.  The results of the attempts to appease Šešelj are evident to all today.

Šešelj’s judgment was delayed also by the (quite justified) expulsion of Judge Fredric Harhoff from the ICTY after the trial had ended but before judgment could be delivered.  This left the Šešelj Trial Chamber (now left with Judges Antonetti and Lattanzi) one judge short of the required three judges.   More than one year has passed since the ICTY appointed Judge Mandiaye Niang of Senegal to replace Judge Harhoff.  Judge Niang stated that he would review every piece of evidence in the record, watch video of every witness’s testimony in order to assess his or her credibility, and read every transcript.  Not surprisingly, he has not been able to accomplish his goal one year after his appointment. When might Judge Niang be ready to start deliberating about the judgment?  ICTY President Meron recently advised the UN General Assembly:

Judge Niang has advised that he will require at least until the end of June 2015 in order to familiarize himself with these proceedings. Presiding Judge Antonetti has indicated that he will do his best to shorten the period required to render the judgement once Judge Niang’s review has been completed.[1]

Because Judge Niang has advised that he won’t be finished reviewing the evidence until at least June 2015, Prosecutor Serge Brammertz in an interview this week quite correctly stated that a judgment in Šešelj’s case will not be delivered before the end of 2015.[2]

Šešelj’s Liver Cancer

What the ICTY has not publicly stated is that, if a judgment cannot be delivered in Šešelj’s case before the end of 2015, it is not likely to be delivered at all.  Šešelj was provisionally released because he has been found to be suffering from liver cancer.  Survival rates for liver cancer are very low.[3]  If Šešelj dies before the Trial Chamber issues its Judgement, then the ICTY loses jurisdiction over the case and no judgment can ever be rendered.[4]

One can presume that the ICTY has concluded that Šešelj’s liver cancer is at an advanced stage and that his long-term prognosis is not good. I gather this from two factors.  First, the fact that the Trial Chamber was eager to return Šešelj to Serbia at any cost, even without asking him whether he wanted to go or whether he would abide by the ICTY’s orders while released (Šešelj of course would have said that he would not obey the Tribunal), suggests that the Trial Chamber was desperate to avoid the scenario where yet another ICTY accused dies in the UN Detention Unit (as in the cases of Slobodan Milošević, Slavko Dokmanović, Milan Kovačević, and Milan Babić).

Second, the fact that Prosecutor Serge Brammertz did not appeal the decision to release Šešelj—even though Šešelj never promised to comply with the Tribunal’s orders or to comply with witness protection measures—suggests that Mr. Brammertz also did not want to be held responsible were Mr. Šešelj to die in the custody of the United Nations.  Based on the actions of both the Trial Chamber and Mr. Brammerz, we can assume that doctors have concluded Mr. Šešelj is not long for this Earth.

Justice Requires that Šešelj’s Judgment Be Delivered Orally First

After eleven years of trial, the ICTY owes a final judgment to the victims, to the many witnesses who took the risk to testify against Šešelj, and to Šešelj himself.  The ICTY cannot simply sit back and hope that Šešelj survives his liver cancer for another year and half, long enough for Judge Niang to become familiar with the evidence and to deliver a written Trial Judgment in 2016.

The Trial Chamber can possibly avoid this doomsday scenario of Šešelj dying before judgment can be delivered.  It can deliver the Judgment orally, without a written judgment, almost as soon as a majority of the judges agree on the ultimate issue of the guilt or innocence of Mr. Šešelj.  Rule 98(C) ter of the ICTY’s Rules of Procedure and Evidence states:

The judgement shall be rendered by a majority of the Judges. It shall be accompanied or followed as soon as possible by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.[5]

The phrase “or followed as soon as possible” clearly implies that the Trial Chamber has the power to deliver an oral Judgement first, if it is in the interests of justice to do so, and provide a written Judgement as soon as practicable thereafter.  Indeed, this procedure was followed in Aleksovski, where the Judges of the Trial Chamber first delivered an oral Judgement after finding that “at this stage of their deliberations it is important to convene a hearing in the presence of the accused, the Prosecution and Defence counsel as quickly as possible so that they may pronounce their Judgment.”[6]

In explaining the Trial Chamber’s decision to pronounce Judgement orally, the Presiding Judge in Aleksovski stated as follows:

Your trial proper started before this Trial Chamber on January 6th, 1998, and ended on March 23rd, 1999. Since that date, my colleagues and I have been deliberating, assessing, and reviewing all the evidence, briefs, and written documents of the trial. The conclusions which we have reached have seemed of such a nature that they justify amply the fact that the hearing be organised in the shortest of delays, without waiting for the final judgement to be put down in writing. This judgement will be made public as early as possible, but the urgency seems to be such that we have not waited for the return of the senior trial attorney of this trial, Mr. Grant Niemann, to which I would like to pay homage.  May he be made aware that we are very sorry that he is not present today for we have always been very pleased with his work. I would like to say the same for Mr. Mikulicic: We are very sorry not to see them here today.[7]

The Aleksovski Trial Chamber sentenced the Accused to two years and six months imprisonment.  However, because the Accused had already been in detention for a period of time longer than the imposed sentence, the Trial Chamber ordered his immediate release on 7 May 1999.[8]  The written Judgement was not delivered until 25 June 1999.[9]

The Šešelj Trial Chamber should follow the precedent of the Aleksovski Trial Chamber and use its powers under Rule 98(C) ter to deliver a judgment as soon as a majority has reached a decision.  If Judges Antonetti and Lattanzi have already reached a majority decision even without Judge Niang’s vote, then nothing precludes them from rendering their oral decision right now, because Rule 98(C) ter expressly states that the Judgement shall be rendered “by a majority of the Judges,” not necessarily by all of the Judges.  They do not have to wait for Judge Niang if they have already reached a majority Judgment.  Indeed, even if Judges Antonetti and Lattanzi have reached a majority Judgment on certain counts but not others, Rule 98 (C) ter does not prevent them from issuing a partial oral judgment on those counts.

If Judges Antonetti and Lattanzi are deadlocked and have differing judgments on Šešelj’s guilt, then the proceedings indeed will have to wait for Judge Niang to complete his review of the evidence, begin deliberations, and cast his tiebreaking vote.  Even under this scenario, however, the Trial Chamber should not wait for a written Judgement to be prepared before pronouncing on Šešelj’s guilt.  As soon as Judge Niang has cast his vote, the Trial Chamber should immediately schedule an oral Judgment (hopefully in the summer of 2015), and render its decision on guilt or innocence orally.  If Šešelj dies thereafter, the Trial Chamber will nevertheless retain jurisdiction to deliver the written Judgement explaining its already delivered oral Judgment.

The ICTY will have to utilize some creative thinking and little known rules (like Rule 98(C) ter) in order to avoid the situation where Šešelj dies and no judgment is ever delivered.  That result would render the Šešelj case a complete farce.   Šešelj has already been allowed to turn the ICTY proceedings against him into a circus during his lifetime.  He should not be allowed to cement that legacy by escaping judgment through his death.

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[1]http://www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_2014_en.pdfhttp://www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_2014_en.pdf , at paragraph 30.

[2]http://www.b92.net/eng/news/crimes.php?yyyy=2014&mm=11&dd=13&nav_id=92226

[3] http://www.cancer.org/cancer/livercancer/detailedguide/liver-cancer-survival-rates

[4] See, for example, Prosecutor v. Rasim Delic, Decision on the Outcome of the Proceedings, 29 June 2010, as found at: http://www.icty.org/x/cases/delic/acdec/en/100629_1.pdf.

[5] Emphasis added.

[6] Prosecutor v. Aleksovski, IT-95-14/1-T, Scheduling Order (5 May 1999); see also: ICTY Press Release, JL/PIU/399-E, “Aleksovski Judgment on 7 May 1999” (5 May 1999); Prosecutor v. Aleksovski, IT-95-14/1-T, Trial Judgement, para. 245 (25 June 1999).

[7] Prosecutor v. Aleksovski, IT-95-14/1-T, Transcript of Proceedings, T:4348:18 to T:4349:6 (7 May 1999).

[8] Prosecutor v. Aleksovski, IT-95-14/1-T, Order for the Immediate Release of Zlatko Aleksovski (7 May 1999).

[9] Prosecutor v. Aleksovski, IT-95-14/1-T, Judgement (25 June 1999).

Sacrificing the Rights of the Accused for the "Success" of International Criminal Justice

In going through some of my old papers, I came across a speech I delivered at a conference in The Hague in November 2000 titled, "Sacrificing the Rights of the Accused for the 'Success' of International Criminal Justice."  Re-reading it 14 years later, I was struck by how timely the speech is even today in light of the split in international criminal justice that has resulted from several high profile acquittals at the ICTY in recent years.

I believe the split in international criminal justice ultimately can be summarized by the words of the Rwandan Justice Minister whom I quoted in my speech in the year 2000:

"If one would weigh the potential injustice to one man against the injustice to millions of people, a strictly legal interpretation of the issues would not be one to make."

The sentiment in this one sentence captures the gulf in international criminal justice between those who believe that international courts should limit their decisions to strict application of the law to the evidence, and those who believe that the "greater good" of "justice for the victims" sometimes requires that judges find ways to convict defendants even if the Prosecution has failed to bring forward sufficient evidence of guilt.

I reprint below the text of my entire speech from November 2000:

Sacrificing the Rights of the Accused for the

“Success” of International Criminal Justice

By Luka S. Misetic

            As the international community comes closer to its goal of establishing a permanent international criminal court to try those accused of violations of international humanitarian law, it is important that we look to the experiences of the two ad hoc tribunals to determine whether we can learn anything that will help us to improve the international criminal justice system.  For several years, it has been the perspectives of the prosecutors and judges of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) that have been publicized in legal, political and media circles.  I am pleased to have this opportunity to provide a different perspective to this discussion of international criminal justice:  the viewpoint of the defence.

            The ultimate success of international criminal law, and more specifically the ICC, ICTY and ICTR, should be measured not by the number of convictions achieved by each institution, but rather by whether “justice” was served in the trials before these international bodies. The process by which a verdict is reached is just as important as the verdict itself.  While this is a proposition that is widely accepted in principle, it has been my experience that there is disagreement in practice as to what constitutes “due process of law” in the international context.  From the perspectives of many defence lawyers at the ICTY, outside considerations can often infringe upon the due process rights of the accused.

            In order to understand how outside pressures on the ad hoc tribunals can impact the rights of the accused, one must start by examining the origins of both tribunals.  The ICTY and ICTR were both created directly by resolution of the United Nations Security Council.  The ICTY, for example, was established under Chapter VII of the United Nations Charter as an “enforcement measure” to restore peace to the former Yugoslavia.  The Security Council had made a specific finding that violations of international humanitarian law had constituted a “threat to peace” in the region, and thus the Security Council under Chapter VII could address that threat to peace by creating the ICTY. 

            From this beginning it is clear that the ICTY was established by an executive (not legislative) organ and charged with a specific political purpose: to restore peace in the region.  This political purpose is made even more clear in the official name of the ICTY: “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.”  [Emphasis added].  Note that the title does not proclaim to be the “International Tribunal for the Trial of Persons Accused of Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991.”  The ICTY’s official title reflects the desire of the Security Council and the international community at large to address and punish serious violations of international humanitarian law.

            The ad hoc nature of these two tribunals, and the political circumstances that led to their establishment, have led to many shortcomings when it comes to protection of due process rights for the accused as guaranteed in Statutes of the tribunals.  Both the Office of the Prosecutor and the Tribunals’ Judiciary feel the burden of their mandates, which are to “restore peace” to the former Yugoslavia and to “prosecute persons responsible” for war crimes.  The reality is that “restoration of peace” and successful “prosecutions of persons responsible” are measured by one thing: convictions.  It would be difficult indeed to convince members of the “international community,” including NATO states that risked the lives of their soldiers to apprehend many of the accused at the ICTY, that acquittals should be viewed as a success and would “restore peace” to the region.

            Other outside pressures can impact the ad hoc tribunals.  Both the ICTY and the ICTR must annually seek funding from the United Nations General Assembly.  As anyone familiar with the process of fundraising will know, increased funding is very much related to whether the project for which funding is sought will be successful. Again, it is difficult to imagine that the ICTY could successfully obtain a budget increase by convincing the General Assembly that it was successfully acquitting people brought before the tribunal.  Indeed, the opposite is true:  the arguments made in recent years to the General Assembly often focus on the “success” of the Tribunal in apprehending and convicting those accused by the Prosecutor of war crimes.  In addition, the two ad hoc tribunals bear the burden of being the precursors to the ICC.  The success or failure of the ICTY and ICTR could have a great impact on the establishment of the ICC.  Acquittals would not have the effect of creating momentum for the establishment of a permanent court.

            Finally, and perhaps most importantly, the nature of the ad hoc tribunals makes them susceptible to pressure from outside forces.  Because the tribunals do not have a police force, an intelligence service, or an ability to gain immediate and unfettered access to the territory they are investigating, the ICTY and ICTR are very much dependent upon the cooperation of governments and international institutions.  For example, the tribunals have no ability to make arrests, gather intelligence data, or secure a crime site for investigation.  Without the cooperation of NATO and countries from the region, the ICTY and ICTR would be unable to fulfill their mandates.

            These outside pressures have impacted the work of the ICTY and ICTR.  Fundamental rights of due process, such as the accused’s right to confront witnesses against him, the burden of proof beyond a reasonable doubt, the right to a speedy trial without delay, and the right to be free from unlawful arrest have all been stretched, if not violated, on at least one occasion.  In the Tadic case, the first case before either tribunal, the Trial Chamber allowed the Prosecution to call witnesses whose true identities were withheld not only from the public, but from the defendant and his attorneys.  This gross violation of due process rights was compounded when it was later discovered that the two anonymous witnesses against Tadic had lied about their identities to the Trial Chamber and in fact had been coached by the secret services of the Bosnian government.

In the Kordic trial, public criticism of the slow pace of most trials at the ICTY led the Trial Chamber to allow the prosecution to script its questions with its witnesses on direct examination.  Furthermore, the prosecution was allowed to lead its witnesses by asking a series of “yes or no” questions.  In the case I tried before the ICTY, Prosecutor v. Furundzija, most of the testimony in the case (including that of accusing witness) was held in closed session and outside of public scrutiny.  This, in my view, violated Mr. Furundzija’s right to a public trial.  To this day, none of the testimony that is relevant to Mr. Furundzija’s guilt or innocence is available to the public.

The case of Stevan Todorovic provides a clear example of the political realities that face the ICTY.  Todorovic stood accused by the ICTY of serious violations of international humanitarian law, including crimes against humanity.  He remained a fugitive, however, evading arrest by NATO forces stationed in Bosnia by hiding out in neighboring Serbia.  NATO had no mandate to be present in Serbia or to make arrests on the territory of the Federal Republic of Yugoslavia.  Nevertheless, in September 1998, NATO announced that it had arrested Todorovic and was transferring him from Bosnia to The Hague for trial. 

            Todorovic’s defence counsel immediately moved to invalidate the arrest on the basis that Todorovic had been illegally kidnapped in Serbia by bounty hunters paid by NATO, then transferred to Bosnia where he was arrested by NATO forces.  The defence contended that this type of conduct by NATO was illegal under international law and tainted his arrest.  In a move that raised tensions between the Tribunal and NATO, the Trial Chamber in the case issued a subpoena to NATO and to the U.S. General who was in charge of the operation at the time, General Eric Shinseki.  The subpoena sought all information regarding the nature and circumstances of NATO’s arrest of Todorovic.

               The United States immediately objected, and used its leverage over the Tribunal to attempt to stop the subpoena.  The United States filed a statement with the Trial Chamber that made the threat explicitly clear:  the United States would stop making arrests unless the subpoena was withdrawn.  The statement was as follows:  "It should be of concern to all supporters of the tribunal's objectives that the resolution of these issues will affect the ability - and willingness - of S-For and other entities and States to detain PIFWCs [people indicted for war crimes], now and in the future."  A tribunal insider was quoted in the Guardian of London as saying that the Trial Chamber’s subpoena would “cut off the hand that feeds you.”  Once again, the rights of the accused to be free from unlawful arrest were being threatened by political concerns.   Approximately two months after the Trial Chamber’s subpoena, the Prosecutor’s Office announced that it had reached a plea bargain with Todorovic, thus eliminating the need to issue a subpoena to NATO and Gen. Shinseki.  Nevertheless, the Todorovic case provides an example of how the political circumstances of the ad hoc tribunals can have an impact on whether the rights of the accused will be enforced.

            Perhaps the clearest example of political pressure influencing the ad hoc tribunals is the Barayagwiza case before the ICTR.  In that case, the accused had been held for three years without charge.  Finally, defence counsel filed a motion seeking the release of the accused on the basis that his right to a speedy trial without delay had been violated.  The Appeals Chamber of the ICTR (which is the same Appeals Chamber for both ad hoc tribunals), after hearing the arguments, granted the defence motion and ordered that the accused be released.  In so doing, the Appeals Chamber held that “nothing short of the credibility of the tribunal is at stake, and to allow these proceedings to continue would amount to a travesty of justice.”  Because the Appeals Chamber is the highest authority at either tribunal, this decision was final and no appeal could be taken from the ruling of the Appeals Chamber.

            Immediately, however, politics intruded into the work of the Appeals Chamber.  The government of Rwanda, which sought Barayagwiza’s conviction, immediately protested and declared that it would no longer cooperate with the ICTR.  Indeed, Rwanda denied visas to all members of the Office of the Prosecutor, which made it impossible for the Prosecutor to conduct investigations in Rwanda or to prepare for trial.  In short, without Rwanda’s cooperation, the work of the ICTR would come to a halt.  A New York Times article from December 19, 1999 reflects the reaction of Rwanda and the mood that began to prevail in U.N. circles:

                 "If one would weigh the potential injustice to one man against the injustice to millions of people, a strictly legal interpretation of the issues would not be one to make," said Richard Sezibera, the Rwandan ambassador to the United States.

                 "If one wanted to make a comparison -- that is not explicitly accurate but indicative -- it would be like releasing Goebbels of Nazi Germany on a technicality," he added. "And that is not acceptable. It should not be acceptable to the world."

Due process rights are “technicalities” which should not impede the drive to convictions, according to the Rwandan ambassador. 

               A similar view was adopted by the Prosecutor herself, Carla Del Ponte.  Despite the fact that the decisions of the Appeals Chamber are final, Del Ponte brought a motion on the basis that the Prosecutor had “new evidence” which would cause the Appeals Chamber to reverse itself.  In reality, this was nothing more than an excuse so that the Appeals Chamber, in light of the political firestorm that had resulted, could reverse itself.  Del Ponte made no secret that this was her real motive, and she made this clear in her argument to the Appeals Chamber.  The Washington Post reported her comments as follows:

                "Whether we like it or not, we must come to terms with the reality that our ability to continue our investigations depends on Rwanda," she told the five-judge panel. Without the help of the country where the genocide occurred and so many witnesses reside, "we might as well open the doors to the prison."

               "It is my hope," she said in closing, "that Barayagwiza will not be the one to decide the fate of this tribunal after he decided on the Rwanda genocide in 1994."

Del Ponte thus made no secret of the fact that political considerations, and not necessarily the law and due process, required that the Appeals Chamber reverse itself.

            Surprisingly, this view was not only espoused by the Prosecutor, but by the Chief Judge of the ICTR herself.  In an article that appeared in the Washington Post on March 10, 2000, Judge Navanathem Pillay made perfectly clear the point that I too wish to make:  due process rights of the accused are often viewed as secondary to the political considerations surrounding the tribunals.  Judge Pillay is quoted as follows:

               "We are 52 years after Nuremberg, trying to apply rules of fair trial procedures that are expected of us in the year 2000," said Navanethem Pillay, the South African who serves as chief judge and president of the Arusha tribunal. But the refined nature of Western law, she said, can make a clumsy fit with the

               political reality that led to the tribunal. The court was created in November 1994 by the U.N. Security Council that had sat on its hands for six months rather than try to stop the slaughter.

               "No matter what an independent jurist you are, you have to take into account public opinion," Pillay said. "Can you imagine the uproar if the Oklahoma City suspect or the Unabomber was set free?"

Judge Pillay thus admits that “public opinion” influences the work of the ICTR, and that due process rights do not necessarily fit into the political purpose of the ICTR (and presumably the ICTY).    After hearing the arguments, the Appeals Chamber reversed itself and ordered that Barayagwiza continue to be held in custody for trial before the ICTR.  It seems that the political considerations discussed by Carla Del Ponte and Judge Pillay did take priority over the due process rights of Barayagwiza.

            The Todorovic and Barayagwiza cases provide perfect examples of the problems facing international tribunals in protecting and enforcing the rights of the accused at the international level.  While there is unanimous agreement on the principle that the rights of the accused, as enshrined in the International Covenant on Civil and Political Rights, should and must be respected, there is far less unanimity when it comes time to put into practice the rights that appear on paper.  The emerging system of international criminal justice will, in my opinion, only be a success when it is able to resolve issues like those raised in Todorovic and Barayagwiza by relying only on the law and the right to due process, without any reference to outside political concerns.

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

2006-2007:  $96,169,000.00 USD, or approximately $48,084,000.00 USD per 2006 and 2007;

2008-2009: $104,579,000.00 USD, or approximately $52,289,500.00 USD per 2008 and 2009;

2010-2011: $79,810,000.00 USD, or approximately $39,905,000.00 per 2010 and 2011; and

2012-2013: $59,518,000.00 USD, or approximately $29,759,000.00 per 2012 and 2013.

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.

__________________

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[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.

The Competence of Judge Güney and the Boomerang Effect

Declarations of war often have a boomerang effect, causing more damage to the attacker than the attacker had ever anticipated.  Just ask George Bush what happened after he declared “Mission Accomplished” in Iraq.  In The Hague, the war launched on the ICTY’s judges in early 2013 continues.   As I have noted previously, Judge Theodor Meron has been subjected to what I figuratively refer to as a “Joint Criminal Enterprise” by a disgruntled few.  More recently, Judge Frederic Harhoff discovered the “boomerang effect” when he launched an attack on Judge Meron in an email to 56 of his “closest friends,” only to find himself attacked on multiple fronts by multiple defendants and ultimately disqualified from the Seselj case by a panel of his judicial colleagues.

Today comes a new attack on ICTY Judge Mehmet Güney of Turkey, this time on the pages of the Süddeutsche Zeitung (“SZ”).  In an article titled, “The Fight for Supremacy on the UN Tribunal,” the SZ reports (citing those sinister “anonymous sources,” but widely believed to be sourced by a certain “Balkan journalist” based in The Hague) that Judge Güney is “no longer really sure on his feet,” that he “communicates only in writing,”  and “is no longer able to monitor long conversations and at meetings loses his orientation.”  Moreover, the “anonymous sources” allege that Judge Meron is “pulling Judge Güney along with him for as long as Judge Meron thinks he needs Judge Güney’s vote.” SZ then states that had Judge Güney not voted with the “American President of the Tribunal, then there would be no stunning 3-2 decision in favor of the acquittal of the two Croats.”

The article concludes by stating that a “medical examination of one of the judges can only be ordered by the President of the Tribunal,” and therefore the “incompetent” Judge Güney cannot be removed from the ICTY before the end of his mandate in 2015 unless the judges elect a new judge to replace Judge Meron as President of the ICTY on October 1^st.  This statement, combined with the article’s title, (“The Fight for Supremacy on the UN Tribunal”), makes it clear that the article is really just part of the campaign to discredit Judge Meron on the eve of ICTY elections for President of the Tribunal, a campaign which has been organized for months by the “Balkan journalist” based in The Hague.

But let’s look at the substance of the allegations against Judge Güney, who supposedly can “communicate only in writing” and is “pulled along by Judge Meron.”  The Gotovina Appeals Chamber Judgement was delivered on 16 November 2012.  Meanwhile, Judge Güney was the Presiding Judge and the Pre-Appeal Judge in the appeal of Milan Lukic, whose appellate judgement was delivered on 4 December 2012, almost three weeks after the Gotovina Appeals Judgement.  As the Presiding Judge and the Pre-Appeal Judge in Lukic, Judge Güney had primary responsibility for administration of that case, including resolving motions and preparing the actual Judgement.  Accordingly, those now anonymously attacking Judge Güney are also calling into question the legitimacy of the appeals convictions of Milan and Sredoje Lukic.  Indeed, if the Judge most responsible for preparation of the Lukic Judgement was incompetent, then the Judgement is not sound and must be reviewed.

But was Judge Güney really able to “communicate only in writing”?  The video of the delivery of the Lukic Judgement (again, delivered three weeks after the Gotovina and Markac acquittals), suggests that Judge Güney was able to communicate verbally without any problems.  Furthermore, he delivered the Judgement for 36 consecutive minutes, contradicting the claim that he is “no longer able to monitor long conversations and at meetings loses his orientation.”

It should be noted that Judge Meron was not a member of the Lukic Appeals Chamber, so Judge Meron was not there to “pull along” Judge Güney, as the SZ article claims.   Moreover, Judge Güney was a member of a 3-2 majority (along with Judges Agius and Morrison) that voted to grant two of Sredoje Lukic’s grounds of appeal.  Unless the “anonymous sources” of SZ are willing to go so far as to suggest that Judges Agius and Morrison (like allegedly Judge Meron) are also “manipulators of the incompetent Judge Güney,” the 3-2 vote in Lukic suggests that Judge Güney is able to reach decisions competently and independently of Judge Meron or anyone else.

Finally, it should be noted that the Lukic and Gotovina Appeals Chambers had three common judges:  Judges Güney, Agius and Pocar.  If Judge Güney were “incompetent” at the time of the delivery of the Gotovina Appeals Chamber Judgement, Judges Agius and Pocar would have had to know about it.  They would have had a duty to disclose to the parties in the Gotovina case that they believed one of their colleagues was incompetent at the time of judicial deliberations.  Instead, Judges Agius and Pocar, despite vigorously dissenting from the Majority decision, never suggested in their dissents that the Majority had reached its decision where one member of the Majority was incompetent.  Moreover, Judges Pocar and Agius then went on to sit with their colleague in the Lukic case, where they not only did not disclose any concern about Judge Güney’s fitness to be a member of the Appeals Chamber, but also had no concern about Judge Güney being named the Presiding Judge in the case. Indeed, Judge Agius in the Judgement went so far as to join Judge Güney (and oppose Judge Pocar) in forming a 3-2 Majority on certain issues in the Lukic Judgement.

Accordingly, the silence of Judges Agius and Pocar in the Gotovina and Lukic cases strongly suggests that Judge Güney was not incompetent at the time of delivery of both Judgements in November and December 2012.  If it were true that Judge Güney was incompetent at the time of delivery of both judgements, and Judges Agius and Pocar kept silent, then Judges Pocar and Agius would have to be disqualified from both cases along with Judge Güney, because both Pocar and Agius would have breached their ethical duties to disclose information critical to determining whether the fundamental rights to a fair trial and to an independent and impartial tribunal were violated by Judge Güney’s membership on both panels.

Those “anonymous sources” attacking Judge Güney on the basis of his vote in the Gotovina Appeal are thus also inadvertently calling into question the ICTY’s conviction of Milan and Sredoje Lukic, once again demonstrating the “boomerang effect” of going to war on false pretenses. 

Just ask “Boomerang Fred” Harhoff.