Tag Archive | "ICTY"

The Comparative Cost of Justice at the ICC

On March 14th, the International Criminal Court (ICC) delivered it first judgment, finding Thomas Lubanga guilty of three child soldier war crimes offenses.  The verdict is a welcome victory in the fight against impunity and it is some measure of justice for the 60,000 persons killed in the Ituri province in Eastern Congo.  But the judgment highlighted the ICC’s painstakingly slow pace to date – the ICC has been in existence for ten years and so far they have indicted 15 persons and achieved one conviction.  And it should be noted this is not a final conviction, but only a trial verdict.  To be fair, three other accused are in the midst of trials.

Thomas Lubanga at the ICC

Just how much have these 15 indictments and lone conviction cost the ICCs signatories?    The cumulative total of the ICC’s budgets over the initial decade is $900 million.  By way of comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) spent $695 million in its first ten years, and the International Criminal Tribunal for Rwanda (ICTR) spent about a $1 billion.   So at a glance the ICC is not out of line with its brethren institutions.

However, the ICTY and ICTR both indicted far more suspects for that money.  The ICTY indicted 161 persons, 1 while the ICTR indicted 91 persons.2  I didn’t have time to research every indictment, but my memory was that most of those indictments had been issued by the ten year mark.

Let’s break those numbers down a bit more.  Based on the numbers above, the cost per suspect indicted at the ICTY, regardless of the outcome of the case, was $4.3 million, it was $11 million at the ICTR and $60 million at the ICC.

I am not going to address the overall cost of international tribunals in this blog. Suffice it to say that they are too expensive and too inefficient in my view.  What I would like to talk about here is the ICC relative costs to the ICTY and ICTR ad hoc tribunals.

While we can expect that the ICC will approach the cost structures of the ad hocsover time, the ICC will never be able to match their operational costs (particularly the lower ICTY costs) for several reasons.

First, the ICTY and ICTR were both mandated by Security Council resolutions, and thus the major political and legal questions about their right to adjudicate matters was resolved before their work began.  At their inception, they had the luxury of focusing their energies on criminal investigations rather than jurisdictional challenges.  The ICC is a wholly different animal.  It must establish its right to exercise its jurisdiction in each situation it chooses to “officially” investigate, and must walk a diplomatic tightrope along the way.  (The only exception to that rule is when the Security Council refers cases to it, as it did with Sudan and Libya.)

Second, the ICTY and ICTR both had clear and specific mandates — to prosecute those most responsible for offenses in defined conflicts.  The ICC, on the other hand, has a global mandate with an obligation to consider crimes committed in any of its 139 signatory territories plus any others referred to it by the Security Council.   The ICC gets thousands of unofficial communiques each year.  It must conduct a cursory review of these communiques regardless of whether it decides to launch an official investigation.

Third, the ICTY and ICTR had one-time ramp-up costs and learning curves.  The ICC goes through this ramp-up process for each official investigation.  The ICC must establish information and logistical beachheads in each situation, creating an investigational infrastructure for each official investigation.  Key witnesses have to be located, relationships formed and nurtured and local politics mastered. Even small details such as safe hotels for accommodation have to be sorted out.

Fourth, the ICC’s broad mandate brings with it an immense problem of language. The two ad hoc tribunals had to contend with difficult regional languages – Kinyarwandan in Rwanda and several Balkan languages in Yugoslavia.  The ICC is obligated to function in all of the languages relevant to the conflicts it investigates: there are 200 languages are spoken in the Congo, 72 in the Central Africa Republic, 45 in Uganda, 142 for Sudan, 79 in The Ivory Coast and 69 in Kenya.  The ICC could breathe easy with Libya where only 9 languages are spoken.  Of course, many people in the Congo speak a lingua franca, Swahili or Lingala.  But many witnesses have stronger language capabilities in their local tongues.

We have given the ICC a complicated mandate to achieve and it is no surprise that it is taking it a while to hit its stride.

  1. The ICTY has concluded proceedings in 126 cases which includes 64 convictions.  17 cases are on appeal.
  2. he ICTR has concluded proceedings in 78 which includes 42 convictions.  18 cases are on appeal.

Posted in David Akerson, TVFA PostsComments (2)

Peter Robinson

Interview with Peter Robinson, Legal Advisor to Radovan Karadzic

Peter Robinson

Peter Robinson

On Monday, July 18, 2011, I sat down with Peter Robinson at the International Criminal Tribunal for the former Yugoslavia in The Hague, The Netherlands. Mr. Robinson is the legal advisor to founding member of the Serbian Democratic Party and former President of the Republic of Srpska, Radovan Karadzic. Karadzic appears before the tribunal charged with genocide, war crimes, and crimes against humanity committed in the former Yugoslavia in the 1990′s. His trial began on October 26, 2009 and is currently ongoing. What follows is a candid conversation touching on Dr. Karadzic’s case specifically and the ICTY and international criminal justice more generally. I would like to take this opportunity to thank Mr. Robinson for his time and cooperation. His experience and insight are an invaluable resource for those seeking to look critically at international criminal justice. Biographical information about Mr. Robinson, as well as a link to buy his thriller, The Tribunal, are available at www.PeterRobinson.com.

JB: Many of our readers may be unfamiliar with the nature of your professional relationship with Dr. Karadzic, as he represents himself and you act as his Legal Advisor. Can you describe your division of labor and respective roles?

PR: Basically, I work on all legal issues. I draft pleadings for him to review and sign if we are going to file something in writing. If something comes up during the trial, I can intervene by objection. Sometimes, I make oral motions on evidentiary issues that need to be made quickly and are not so complicated that they need to be put in writing. In short, I work on the legal aspect of the case and [Dr. Karadzic] deals with the factual issues.

JB: And does he take your legal advice?

PR: Most of the time. Actually, I advised him against boycotting the trial at the start because I didn’t think it was legitimate to do that. He told me, “Look. I know politics, and you know law. This is a political tribunal, and we are going to do it my way.” So, that is how we did it.

JB: It is frequently argued that representing yourself in a criminal proceeding, even if you are a trained lawyer, is a foolish thing to do. Have you found that self-representation has served Dr. Karadzic’s needs politically and legally speaking? Would you recommend someone in his position to handle his or her situation as Dr. Karadzic has handled his?

PR: Well, it depends on the person, and it depends on the trial. From his point of view, he was correct in thinking that it would be very difficult for any lawyer, no matter how good they were, to be able to get him off on these charges. If what he wants to accomplish is to educate the public, to educate history, especially in the view of the Bosnian people, then he has a good opportunity to do that by representing himself and having the floor every day. Otherwise, he would just be sitting there. In two years, when it was his turn to testify, he would be able to speak for a couple of weeks and that would be it as far as participation in his trial was concerned.

Also, he has actually gotten to be very good in the course of the year that he has been [representing himself]. He has improved a lot and does a really good job. Because he knows the facts so well, he is sometimes able to come up with a counter argument on the spot in a way that no lawyer could have ever done. His abilities are very high. He is articulate and works really hard. Given the parameters of what he wants to accomplish, I think it was a good decision for him.

JB: Part of the reason that Dr. Karadzic selected you to be his Legal Advisor was that you came from a common law system. Why, as a common lawyer, were you particularly suited to represent a client at this tribunal?

PR: Maybe 80% of the decisions made here are based on common law principles and precedents. And the procedure in the trial itself is maybe 95% common law. Even though you can use concepts from both systems, and a good lawyer would try and take the best from any system and try and argue that they should apply it here. In practice, because the Americans were the driving force in setting up [the ad hoc tribunals] that it’s taken a real common law bent where as the ICC is a little more of a balance between the common and civil law systems.

JB: International criminal tribunals seek the twin goals of domestic catharsis and bringing culpable individuals to justice. Based on your extensive experience at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, how do you see this balance being struck in practice?

PR: I think they have gone way too far in the way of trying to prove everything that took place in a particular conflict, from a historical point of view. As a result, the trials are too big, they take too long, and in the Milosevic case they never accomplished the real goal, which is to hold an individual accountable.

And they made the same mistake in Karadzic’s case. We asked them to narrow the charges and simplify the trial, but they had no interest in doing that. As a result, we are in a trial that is going to last four or five years. It was a mistake not to focus the cases on the most effective way to hold someone accountable and have a sentence that would reflect the gravity of the charges while at the same time making the trial manageable.

JB: So you think that the public criticism that these trials are mostly a decade long formality, that this is not a situation in which someone is innocent until proven guilty, and that the focus of these tribunals is not on the defendant but on the public at large are well-founded?

PR: Yeah, they are. I think that it is more difficult to get a fair trial at these tribunals than it is in [the American] national system.

JB: I was particularly struck by the disparity in numbers. The prosecution has around 30 lawyers at its disposal and the defense team has only 5 full time attorneys. The prosecution turned over 2 million pages of documents for review. This seems to bolster negative perception frequently attributed to the ad hoc tribunals. Why doesn’t the UN do something about it?

PR: We really complain about that a lot. When it started out, they only wanted to have one person representing him. The registrar said that if you are representing yourself, that means “self.” Only you. We will pay someone to pass papers back and forth between you and the registrar, but that’s it. We had to appeal all the way to the President for them to say, “No. You cannot have self-representation unless you have the right to the assistance of case managers, investigators, and a legal advisor.” But the problem is that you will never be equal to the prosecution. Even in the U.S., the police will always have more resources than the defense.

The prosecution is supposed to take the results of their work and turn it over as disclosure. The theory is that you can make up for the disparity in resources by having the prosecution turn over the results of what they do. The problem is that, because the cases are so big, we really cannot effectively utilize the disclosure. We need more people to be able to equalize the playing field. And I am speaking only about our ability to handle what the prosecution already did, let alone have our own people go out and re-investigate the case. We just want to be able to understand what they are giving us.

Most of these documents fall under the category of “exculpatory evidence.” They think the evidence is important enough to Dr. Karadzic’s case that they feel compelled to turn it over. At this point, we cannot find it or read it. I think the problem with the UN system is that the cases are so big and the tribunals are so expensive that they don’t want to pay a lot of money for a big defense team.

Peter Robinson and Jon Bellish at the ICTY

Peter Robinson and Jon Bellish at the ICTY

JB: Dr. Karadzic’s defense would appear to rest on attribution. There is little question factually as to what happened, and the question seems to be whether what happened is attributable to Dr. Karadzic such that the charges levied against him can be imputed to him. Has the conceptual distance between Dr. Karadzic and the actions on the ground made his defense easier? Conversely, will General Mladic’s defense be more difficult due to the fact that he was actually directing men on the field?

PR: It is true that the closer you are to the perpetrators, the easier the case is. So when crimes are committed by the army, it will be easier to hold Mladic responsible than Karadzic, but Karadzic was also the Supreme Commander of the Army, like Barack Obama is the Commander in Chief of the United States Army. But the problem is that Dr. Karadzic does not really accept that the facts are the way the prosecution says they are, and he wants to challenge what happened in these municipalities. For example, the court has established in other trials that the authorities were responsible for what happened in a camp in a particular municipality, that the authorities gave direction to the people who were maltreating victims in the camp. He doesn’t accept that. He thinks that in other cases, people haven’t challenged the facts because they just want to say, “it wasn’t me,” or, “it was somebody else.” So he insists that this “crime base,” as it’s called, be challenged, and he doesn’t accept anything until it is actually proven. He wants to know not just that crimes were committed but who specifically committed them, what is their specific relationship to the state, what is their specific relationship to the authorities. As a result of that, lots of things have come out of his trial that ever came out before. Where the court thought that people under the authority of the state were committing the crimes, it comes out, as it did today, that people were not under the control of the state when committing the crimes.

It has been a different approach than most lawyers would have taken for him. Most lawyers would just say, “let’s just concentrate on the most difficult part that they have to prove – that you are linked to these crimes.” But [Karadzic] just says, “No. I want every stage to be challenged. Who did it, why did they do it, what is their relationship to me?”

JB: Do you have any reason to believe that the UN will take these lessons to heart in the ICC and shrink the cases thereby seeking a more balanced approach?

PR: They seem to be doing that. They started off with a very small charge against Thomas Lubanga in their first case. It went sideways on many different levels due to some problems with the case, but their concept was basically to focus on something that was manageable. It seems like they have continued in that way, and have applied lessons they learned from the Milosevic case in particular.

JB: What will be the future of Karadzic’s and Mladic’s cases? Do you think they will have their cases joined or have them transferred to the ICC, or will the Security Council simply cease their demand for the tribunal to finish its work?

PR: I think that they will just let the trials be completed. They would like to have them completed as soon as possible. There is some possibility that the two cases will be joined for the purposes of Srebrenica. We haven’t started hearing witnesses for that, and this could create a situation where the witnesses would only have to come once. It is a possibility, but it is one that would delay the rest of Karadzic’s trial. It’s not easy to work that out when we have already had a year of trial. The prosecutor does not seem to be headed in that direction. Karadzic has said that he wants to see what Mladic’s defense team looks like and what his strategy is before deciding if the defense wishes to join the case or if we would rather have them be separate.

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Ratko Mladic at the ICTY

Orie Silences an Irrational Mladic at the ICTY

Ratko Mladic at the ICTY

Ratko Mladic at the ICTY

On July 4, Judge Alphons Orie had former Bosnian Serb General Ratko Mladic removed from the courtroom of the International Tribunal for the former Yugoslavia (ICTY) for disrupting the proceedings and communicating with the audience. Despite the fact that the vast majority of the coverage surrounding the hearing focused on the alleged mockery Mladic made of the proceedings, Judge Orie handled the situation perfectly, maintaining the dignity of the tribunal and silencing Mladic with admirable rapidity.

Mladic appeared before the Tribunal because of alleged actions taken in a number of cities in Bosnia-Herzegovina between May 12 and December 31, 1992 that amounted to genocide — a crime punishable by Section 4(3)(1) of the ICTY Statute. He was charged with a separate count of genocide for his alleged role in the infamous massacre at Srebrenica, where 8,000 Bosniak men and boys were murdered. In addition to the two genocide counts against him, Mladic was charged with the persecution of political racial, and religious groups, extermination, murder, deportation, forceable transfer, terrorism, unlawful attacks on civilians, and taking of hostages. These counts, eleven in total, represent violations of the ICTY Statute, crimes against humanity, and violations of the laws of war. Mladic was charged in his personal and superior capacity on all counts.

It is clear that Mladic was highly disruptive at the hearing. Judge Orie began the hearing by admonishing Mladic for his non-verbal communication with members of the audience at his initial appearance a month before. No less than five minutes after the admonition, Mladic could be seen gesturing to the audience, at one point giving the the crowd a smiling thumbs up. Throughout the first part of the hearing, Mladic interrupted Judge Orie several times. Judge Orie warned Mr. Mladic that if Mladic continued his disruptive course, he would be removed from the chambers. As Judge Orie started reading the first genocide count, Mladic interrupted boisterously and was promptly removed from the tribunal.

While there is no question that Mladic was in fact disruptive, an interesting question arises as to the explanation for Mladic’s behavior. Essentially, there are only two possible theories: either Mladic did not understand the nature of the proceedings, or his outrage was simply false. In the end, the legal reality surrounding Mladic’s initial appearance strongly suggests that the latter explanation is the more accurate one.

Mladic’s hearing on July 4 was an “Initial Appearance” under Rule 62 of the ICTY’s Rules of Procedure Evidence (RPE). As such, the sole purpose of this hearing was the formal reading of the charges against the accused and an initial, though non-binding, entry of the accused’s plea. If the accused pleads not guilty, the Registrar sets a date for the trial, and if the accused pleads guilty, the Registrar sets a date for the pre-sentencing hearing. It bears repeating that this initial plea is non-binding and that pleas have been changed before at the ICTY.

Here, Mladic’s principle (and only) complaint against the Tribunal was that his chosen counsel, Milos Saljic of Belgrade and Alexander Mezyaev of Russia, was not present in the chambers. This is an extraneous, if not erroneous, complaint because it is difficult to imagine a scenario in which Mladic would plead guilty to any of the charges levied against him. Moreover, Mladic had already spent considerable time with Saljic, he does not know Mezyaev personally, and he spoke of his desire to “draft a legal strategy,” which seems to imply a not guilty plea. Thus, it appears that cynical legal strategy led to his behavior before the tribunal.

There are two clear tactical advantages to Mladic’s behavior — one failed entirely and the other fell short, both thanks to Judge Orie’s prompt ejection of Mladic. The first strategy is a simple delay tactic. Mladic would be happy to have his proceeding last until the day of his death, and his attorney’s request for an additional month long extension before a plea is entered was a clear manifestation of Mladic’s desire for delay. We can expect more delay tactics of this sort as the proceeding moves forward. In denying Mladic’s request for delay, establishing that Mladic did not wish to enter a plea, and ejecting Mladic for his behavior, Judge Orie ensured that, at least for the time being, Mladic’s case will move forward as planned.

The second tactical decision at play is Mladic’s desire to delegitimize the tribunal before which he sits. This tactic is nothing new, and accused war criminals frequently resort to delegitimization attempts out of a lack of other options. In this instance, Mladic’s attempts were largely unavailing. In fact, apart from a statement that the ICTY is “not a real court,” Mladic was unable to insert any disparaging remarks into the proceedings.

Judge Orie is to be commended for his handling of the situation, which led not only to a speedy administration of justice but also upheld the dignity and decorum of the tribunal in the face of a subject whose lack of self-awareness made him uncooperative to the point of apparent immaturity. The media coverage of the hearing focused on the ejection itself, due in large part towards its “bias in favor of conflict and sensationalism“. In reality, the conflict was dampened at every turn by Judge Orie’s handling of the matter.

Posted in Jon Bellish, TVFA PostsComments (6)


University of Denver Sturm College of Law

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