THE HAGUE AGAINST JUSTICE (Part IV)
By Dr. Kosta Cavoski
Professor Kosta Cavoski, an eminent Yugoslav
law scholar, holds Ph.D. from Harvard University. He has taught at Theory
of Law at University of Belgrade.
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When in the dark medieval
age the Inquisition wanted to protect an important witness who was ready
to testify that he/she had seen a suspect communicating with the devil
the witness was allowed to appear in court with a mask, or hood, over the
face. This was how the court heard the "truth", and the witness was protected
from the evil eye of the witch who might take revenge after being buried
at the stake.
In its fervent desire
to protect from the devil the victims and witnesses of war crimes in the
former Yugoslavia, the makers of the Rules of Procedure and Evidence similarly
undertook to disguise the identity of the victims and witnesses. Thus,
according to Rule 69 "in exceptional circumstances, the Prosecutor may
apply to a Trial Chamber to order the non-disclosure of the identity of
a victim or witness who may be in danger or at risk until such a person
is brought under the protection of the Tribunal. This type of temporary
concealment of a victim's or witnesses' identity can be understood, especially
as paragraph (C) of this Rule stipulates that "the identity of the victim
or witness shall be disclosed in sufficient time prior to the trial to
allow adequate time for preparation of the defense".
What should not have
been allowed under any circumstances was the permanent concealment of the
identity of victims or witnesses, neither the allowing of a witness to
refuse to answer a question on "grounds of confidentiality". This is foreseen
in Rule 70 paragraphs (B), (C) and (D). Inasmuch as the Prosecutor obtains
information given to him on condition it remains confidential he can not
disclose its source without the agreement of the person or entity (15)
who supplied it. This would not be so unusual if such information were
not used as evidence at the trial. But the Prosecutor, with the consent
of the person or representative of an entity, may decide to use documents
and other material obtained in this way as evidence at the trial. In this
case - and this is indeed something very new - "the Trial Chamber may not
order either party to produce additional evidence received from the person
or entity providing the initial information, nor may the Trial Chamber,
for the purpose of obtaining such additional evidence itself summon that
person or a representative of that entity as a witness or order their attendance".
Still, the Prosecutor may call as a witness a person or entity that has
offered confidential information, but the Trial Chamber may not compel
the witness to answer any question the witness declines to answer on the
grounds of confidentiality.
One can ask what kind
of witness gives the Prosecutor confidential information and then refuses
to answer further questions as to how such information was obtained when
the Trial Chamber has no right to insist. As a rule they are undercover
agents who have been operating illegally in foreign countries in order
to collect information that can not be obtained by regular means. They
are also governmental representatives who have provided The Hague Tribunal
with confidential information on condition that it conceal the source of
the information as well as the manner in which it was obtained. The only
remaining question is whether such "evidence" can be accepted as valid
or such clandestine "witnesses" believed at all.
that was introduced by the makers of the Rules was testimony without the
obligation to appear at the trial. According to Rule 71, at the request
of either party, the Trial Chamber "may, in exceptional circumstances and
in the interest of justice, order a deposition be taken for use at trial
and appoint for that purpose, a Presiding Officer". Naturally, it sometimes
happens that an important witness, for health reasons, is unable to leave
his home or hospital to attend a trial. But in such cases a hearing, under
the presidency of the judge, is held in the witness' room where the witness
answers the questions of the prosecution and defense. Allowing a court
officer to take a deposition on his own whenever the Trial Chamber considers
it to be "in the interest of justice", increases the possibility of abuse
and prevents the confrontation of witnesses testifying differently about
the same subject.
The greatest "innovations"
introduced by the Rules was the permanent concealment of the identity of
a witness, victim or anyone related to or associated with them. Under the
guise of preserving privacy and protecting a witness or victim, according
to Rule 75 a judge or trial chamber can, at a session in camera, take "measures
to prevent disclosure to the public or the media of the identity or whereabouts
of a victim or a witness, or of persons related to or associated with him
by such means as:
a) expunging names
and identifying information from the Chamber's public record;
to the public of any records identifying the victim;
c) giving the testimony
through image - or voice-altering devices or closed circuit television
d) assignment of a
Even this was not
enough for the makers of these Rules and so they added the possibility
of closed sessions and appropriate measures to facilitate the testimony
of vulnerable victims and witnesses, such as one-way closed circuit television.
Judicature without Sovereignty
There is no doubt whatsoever
that the measures for the protection of a witness which the Holy Inquisition
was capable of offering were a child's game compared to those provided
by the Ruler of The Hague Tribunal. The Inquisition was only able to offer
a frightened witness the possibility to enter the court by a side door
under cover of night and with a hood over the head. Possibly, and very
probably, the Inquisition would have taken the same measures as The Hague
Tribunal Rules had it been able to use the technology at the disposal of
The Hague judges today.
So as to understand
more easily the "singularity" and also the exceptional possibilities of
violation of the aforementioned measures for protecting a victim or witness,
we will present a hypothetical example. Let us suppose that in an American
city with disturbed and very strained inter-racial relations the sexual
assault of a member of one race group by a member of another takes place.
Terrified by the possible revenge of the relations and neighbors of the
attacker, the victim asks the court to be allowed to testify under a pseudonym
using image- and voice- altering devices. Would the American court allow
this? Certainly not. And one of the reasons would be that such "testimony"
would prevent a fair trial.
After such a convincing
example, it is necessary to ask the following question. Why can American
courts refuse this type of testimony and The Hague Tribunal accepts it
when both are concerned with the protection of a victim or witness from
possible reprisal by the accused, his relatives or friends? The answer
is surprising: the American court firmly believes that the American judicature,
including the police, is capable of offering such protection. And as a
rule it is, except in the rare cases of organized crime. The Hague Tribunal
is well aware that it is not up to this and justifiably assumes that the
so-called international community, as embodied by the Security Council,
has no intention whatsoever of protecting any victim or witness from the
Balkan cauldron. So, if no-one is ready to protect the victims or witnesses,
then at least their identity can be hidden.
Had they taken one
more step in forming this judgment, the Hague judges would have had to
ask themselves whether, under such conditions, they should have taken on
the job of judging at all if in order to protect victims and witnesses
they had to use measures that were implemented by the Holy Inquisition.
Had they any idea of the concept of sovereignty, they would have asked
the Security Council how it thought they could take to court anyone if
they were unable to provide the conditions necessary for the execution
of judicature. When in his famous work "Leviathan" Thomas Hobbes demonstrated
the essential traits of sovereignty, he included "the Right of Judicature,
that is to say, of hearing and deciding all Controversies which may arise
concerning Law, either Civil or Natural or concerning Fact".(16) In the
execution of judicature it is most important that sovereignty provides
general and complete protection of all subjects from injustice by others.
Because other- wise "to every man remainth, from the natural and necessary
appetite of his own conservation, the right of protecting himself by his
private strength, which is the condition of War, and contrary to the end
for which every Common-wealth is instituted".(17) In other words, he who
would judge and is able to do so, is sovereign; and as sovereign is bound
to offer all subjects staunch protection from violence and the injustice
of others. Who is unable of offering the second should not stand in judgment
because he is not sovereign. The members of the Security Council, particularly
the permanent members, wanted the first - to judge - without being capable
of providing the second - reliable protection. This resulted in the concealment
the victims' and witnesses' identities and other measures as a clumsy attempt
to achieve what must be provided by a well instituted and effective sovereign
Due to these important
failings on the part of the Security Council and The Hague Tribunal, a
whole series of other unusual regulations to the ridicule and shame of
this Tribunal and its founders were created. Particularly characteristic
is Rule 99 which allows the arrest of a suspect who has been acquitted.
Truly a contradiction! However, this contradiction came about for practical
reasons. When the jury of all American court of first instance brings a
verdict of non-guilt the accused leaves the court room a free man, able
to go where he will. The prosecution can, of course, appeal against the
first instance verdict but it can not demand that an acquitted person stay
in detention until a second instance verdict is given. Sometimes the second
instance court revokes the first instance verdict and demands a retrial.
Since the suspect is free it may happen that he will not answer a summons
by the first instance court This, however, does not cause much worry as
it is assumed that the police, as an organ of sovereignty, must be capable
of carrying out every court order and bringing the person in question to
The judges of The
Hague Tribunal know very well although they are unable to admit this publicly,
that their sovereignty applies only to the court room in which they judge
and the prison where witnesses suspects and the accused are held. This
forced them to make these contradictory rules. In paragraph (A) of Rule
99, they stipulate that "in case of acquittal the accused shall be released
immediately". Then in paragraph (B) they recant this rule by allowing the
Trial Chamber, at the mere hint of the Prosecutor submitting an appeal
to "issue a warrant for the arrest of the accused to take effect immediately".
Thanks to this sophistry, the accused can be freed and arrested at one
stroke. Had The Hague judges the ability to think logically, they would
have otherwise formulated the rule applied here: the Prosecutor shall decide
on the freeing or detaining of a person acquitted by a first instance Trial
Chamber. Truly in the spirit of the aforesaid Ottoman proverb: "The Cadi
prosecutes, and the Cadi sentences".
To those well acquainted
with constitutional and criminal law the rule that allows for a witness
to testify against himself is a real surprise. Modern criminal law explicitly
forbids this and a witness can refuse to answer incriminating questions.
For a long time this important legal guarantee has been represented by
the Fifth Amendment of the US Constitution of 1787 whereby "no person ....
shall be compelled in any criminal case to be a witness against himself
The authors of The
Hague Tribunal Rules did not pay much attention to this great example and
wrote Rule 90 paragraph (E) which allows for forced self-incrimination:
"A witness may object to making any statement which might tend to incriminate
him. The Chamber may, however, compel the witness to answer the question.
Testimony compelled in this way shall not be used as evidence in a subsequent
prosecution against the witness for any offense other than perjury".
It is worthwhile asking
why the rule makers allowed for the forced self-incrimination of a witness
if such evidence would not be used against him. They were probably presuming
that war crimes are most often carried out by groups of people who, if
they are forced to do so, will implicate each other. Supposing The Hague
Tribunal had the opportunity of imprisoning two persons suspected of committing
the same war crime without either knowing the fate of the other. One could
be forced to testify against the other with the assurance that his testimony
would not be used against him, and vice versa. In this way the Prosecutor
can obtain evidence against them both without there formally having been
any self- incrimination. To our great surprise the rule makers were very
perfidious in this matter, with no concern for the fact that their resourcefulness
and ingeniousness was in direct contradiction to the principle of modern
criminal law that self-incriminating cannot be exacted.
Finally, the above
mentioned rules contain a series of undefined concepts which allow for
whimsicality and caprice. A characteristic example is given by Rule 79
which permits the exclusion of the media and public from court proceedings
or part of the proceedings for the following reasons:
1) public order or
2) safety, security
or non-disclosure of the identity of a victim or witness, or
3) the protection
of the interests of justice.
In a well founded
legal system only public order and morality are considered to be valid
reasons for the partial or complete exclusion of the public from court
proceedings, and this only under strictly defined circumstances. The secrecy
of court proceedings through concealment of the identity of a victim or
witness is inadmissible, as already shown, while the "interests of justice"
as a reason for the exclusion of the public, is yet another innovation
whereby The Hague Tribunal "enriched" legal theory and practice. Justice
is the supreme legal value and since law and judicature exist for the realization
of justice, the provision of "interests of justice" as one of the reasons
for the exclusion of the public was done in order to create a blanket discretionary
norm which would allow the Trial Chamber to do what it wanted under the
umbrella of expediency. The term was also introduced as an excuse for the
taking of depositions for later use at a trial (Rule 71 paragraph A) and
acceptance of evidence of a consistent pattern of conduct relevant to serious
violations of international humanitarian law (Rule 93 paragraph A).
Richard Goldstone did not want to miss the chance of possibly using or
abusing the very elastic norms containing the loose term "interests of
justice". This is why he included in the regulations regarding his own
power (being his own legislator), the stipulation that in certain circumstances
he could grant any concessions to persons who participated in alleged offenses
in order to secure their evidence in the prosecution of others (for example,
by refraining from prosecuting an accomplice in return for the testimony
of the accomplice against another offender), and that this "may be appropriate
in the interests of justice".(18) He hereby made it known that he would
be acting on his own will and not in his official capacity, and that certain
executors of alleged crimes could be acquitted in return for cooperation,
i.e. if they were willing to blame their accomplices. This kind of trade-off
was what he called justice.
"Justice not Seen to
Justice is taken to infer
a certain type of equality, primarily an elementary equality before the
law. It would appear that the members of the Security Council knew this
when they introduced the following regulation into the Statute of the International
Tribunal: "All persons shall be equal before the International Tribunal"
(article 21, paragraph l). This kind of equality is taken to mean that
all detained persons at The Hague have exactly the same conditions of detention
and that no exceptions will be made. However, The Hague Tribunal judges
believed that justice was what they thought it to be, and so they introduced
into their rules a regulation allowing for important differences in the
conditions of detention. According to Rule 64 "the President of the Tribunal
may, on the application of a party, request modification of the conditions
of detention of an accused". This is as if a Mafia boss in the US were
to request of the judge responsible for trying his case that he be allowed
to await trial in his own villa from where he had previously carried out
his "business" on condition he pay from his own pocket a prison guard to
prevent him from absconding.
this example may seem, this is what happened at The Hague. While the terminally
ill Serb General Djordje Djukic was interned in a prison cell without adequate
medical care, the Croat General Tihomir Blaskic, through his powerful patrons,
made a deal with the Tribunal President that he await trial in a luxurious
villa surrounded by guards paid by his "friends", instead of in prison.
According to Antonio Cassese this was done in the interests of justice
- the kind of "justice" whereby it is easy "to be a cardinal if your father
is the pope".
There is an English
saying: "Justice has not only to be done, but to be seen to be done". What
could be seen at The Hague was not justice but caprice and injustice.
--- REFERENCES: ---
(15) Being a state,
one of its institutions or some organization.
(16) Thomas Hobbes,
"Leviathan", edited by C.B. Macpherson, Harmondsworth. Penguin Books 1982,
(18) Regulation No.
1 of 1994, as amended 17 May 1995.
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[ Part I ]
[ The Hague "Tribunal" ]