Investigation and Prosecution of Large-scale Crimes at the International Level

Transcription

1 Investigation and Prosecution of Large-scale Crimes at the International Level The Experience of the ICTY Carla Del Ponte* Abstract Although the prosecution of large-scale crimes at the international level shares some similarities to the prosecution of organized crime at the national level, there are a number of important differences that make the two areas hardly comparable. Two distinctive traits of international criminal proceedings stand out in this regard: (i) the lack of any enforcement agency that would allow prosecuting authorities to carry out investigations on the territory of an interested state without its assistance and the absence of a general power to carry out such arrests, which render state cooperation of prime importance and (ii) the fact that the procedural model of international criminal tribunals is mixed containing elements of accusatorial (common law) as well as inquisitorial (civil law) systems. As far as prosecutions are concerned, useful concepts and procedures adopted from both legal traditions can be found in the Statute, the Rules of Procedure and Evidence as well as in the approach of prosecutors, defence counsel and judges to the introduction of evidence and, more generally, to the manner in which proceedings are conducted. One of the main examples of this is the acceptance of proof of facts by means other than oral evidence as a result of the influence of the civil law tradition, which has progressively made its way in the procedural system of the International Criminal Tribunal for the former Yugoslavia (ICTY). Yet, on the other hand, some methods normally resorted to in national criminal prosecution may turn out to be useful at the international level, such as resorting to insider witnesses. Although known to domestic systems, such practice may have a particular significance in the context of the prosecution of international crimes. So have additional forms of criminal * Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).... Journal of International Criminal Justice 4 (2006), 539^558 doi: /jicj/mql032 ß Oxford University Press, 2006, All rights reserved. For permissions please journals.permissions@oxfordjournals.org

2 540 JICJ 4 (2006), 539^558 participation (such as the notion of joint criminal enterprise). Only a mixing of traditional and innovative investigative tools and the proper balance of the different legal cultures can ensure effective prosecution of international crimes. 1. How to Approach the Prosecution of Large-scale Crimes at the International Level At first glance, prosecuting large-scale crimes at the international level may not appear to be very different from investigating and prosecuting organized or large-scale crimes at the national level. Though similar investigative tools may be used or similar legal concepts applied, unique challenges arise when investigating and prosecuting at the international level. Some are obvious, such as the lack of a police force or enforcement agents, and some less so, such as the impact of combined common law/civil law procedures and legal environments. Such challenges impact on the type of investigative methods, staffing and legal tools that are used and their effectiveness. When the International Criminal Tribunal for the former Yugoslavia (ICTY) began its ground-breaking work of investigating and prosecuting those accused of serious violations of international humanitarian law (IHL), the Statute simply gave the Prosecutor the authority to initiate investigations and to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. 1 The Statute is silent as to how these tasks are to be carried out and by what means. In fact, there are more paragraphs in the Statute in relation to the appointment and qualification of judges than to the powers and tools of investigation. Representing the international community s first effort since World War II to use an international civilian court to prosecute IHL violations, the ICTY was based on new concepts and each procedure ç from the most basic prosecutorial task such as service of subpoenas ç was untested. Adding to the challenge was the fact that these procedures would require the cooperation of states often hostile to the mandate of the ICTY. The Office of the Prosecutor, with a multi-national staff of investigators, lawyers and analysts (each knowledgeable about the tools and techniques of criminal investigation and prosecution in his or her home country), had a rich and varied set of practices to chose from. How would these tools and techniques be utilized in this new jurisdiction? And which practices would be the most effective? Unlike national legal systems, the ICTY Statute contains a limited set of legal tools by which to prosecute crimes within the jurisdiction of the Tribunal. Under the Statute, it is a crime to conspire to commit the crime of genocide, but conspiracy to commit other crimes within the jurisdiction of the Tribunal is not listed as a distinct offence. An attempt to commit the crime of genocide 1 Article 18, ICTYSt.

3 The Experience of the ICTY 541 is a crime under the Statute, but the Appeals Chamber has indicated that attempted murder is not within the Tribunal s jurisdiction. 2 The Statute limits modes of participation by which criminal conduct could be perpetrated. 3 Though the Statute lists commission as a mode of participation, judicial interpretation had to determine the forms of commission existing under customary international law. 4 While an accused would be liable for committing a crime under the jurisdiction of the Tribunal if, through various means, he or she carried out the crime jointly with others, one way that largescale or organized crimes are committed, the specific elements of commission when the commission is carried out jointly by co-perpetrators has remained a hotly debated question. 2. Some Reflections from Experience Twelve years of practical experience investigating and prosecuting war crimes has allowed a number of important observations to be made. A. Prosecutorial Discretion: Selection of Suspects and Accused Persons The Tribunal was not established to prosecute all the crimes that fall within its jurisdiction, and from the outset careful consideration had to be given to the selection of targets. In certain national jurisdictions, such as Italy, the Constitution mandates criminal investigations and prosecution of all culpable parties, leaving a prosecutor with no choice but to investigate all those who may be involved in a crime. At the ICTY it was clear from the beginning that prosecuting all persons responsible for IHL violations committed in the former Yugoslavia since 1991 was impossible. The scale, scope and number of crimes which occurred made it impractical for any judicial institution to prosecute all of them: In the present context, indeed in many criminal justice systems, the entity responsible for prosecution has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction. It must 2 Judgement on Sentencing Appeal, Dragan Nikolic (IT-94-2-S), Appeals Chamber, 4 February 2005, x39. 3 Article 7(1) ICTYSt. lists the modes of participation for crimes within the Statute as planning, instigating, ordering, committing or aiding and abetting. Notably, under Art. 4 there are other acts punishable, which apply to genocide, particularly conspiracy, attempts, complicity and direct and public incitement. A separate form of liability of a superior for criminal acts of subordinates is found within Art. 7(3). 4 See Judgment,Tadic (IT-94-1-A), Appeals Chamber, 15 July 1999; Decision on Dragoljub Ojdanic s Motion Challenging Jurisdiction ^ Joint Criminal Enterprise, Milutinovic, Síainovic and Ojdanic (IT PT), Appeals Chamber, 21 May 2003 (hereafter Milutinovic, Síainovic and Ojdanic Decision ); Judgment, Stakic (IT A) Appeals Chamber, 22 March 2006 (hereafter Stakic Appeals Judgment ).

4 542 JICJ 4 (2006), 539^558 of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted. 5 Which crimes and which offenders are to be prosecuted? This difficulty is compounded when faced with a number of persons accused of involvement in a criminal enterprise, where criminal conduct is exhibited at all levels. This dilemma also confronts the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone. 6 Although the Prosecutor is independent, the Prosecutor s discretion is not unlimited. The ICTY Statute limits prosecutions to serious violations of IHL, 7 not to all atrocities committed in the former Yugoslavia. Translated into investigative and prosecutorial strategies, this requirement led initially to the Prosecution focusing on persons holding higher levels of responsibility for such crimes or on those alleged to have been responsible for physically committing exceptionally brutal or otherwise extremely serious offences. 8 The focus subsequently shifted to the most senior leaders suspected of being the most responsible. The number of indictments and accused tried by the ICTY has been influenced by a number of factors, including the limited capacity of the Tribunal to process a large number of cases. 9 In August 2003, 5 Judgment, Delalic et al. (IT A), Appeals Chamber, 20 February 2001, x 602 (hereafter Delalic et al. Appeals Judgment ). 6 The Statute of the International Criminal Tribunal for Rwanda, Art. 1 uses the same language as the ICTY Statute, while the Statute of the Special Court for Sierra Leone Art. 1 states that the Special Court has the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law. See the discussion of the greatest responsibility requirement by Trial Chamber II of the Special Court of Sierra Leone, in: Decision on Defence Motions for Judgement of Acquittal pursuant to Rule 98, Brima, Kamara and Kanu (SCSL-04-16T-483), Trial Chamber, 31 March Both UN Security Council Resolution 827 (1993) establishing the Tribunal and Art. 1 ICTYSt. expressly limit the ICTY jurisdiction to serious violations of IHL committed in the former Yugoslavia since A challenge to the application of the Prosecution policy was rejected by the Appeals Chamber in Delalic et al. Appeals Judgment, supra note 5, x 212. The decision of the Appeals Chamber resulted from a ground of appeal by one of the convicted persons, Landzío, that he was subject of a selective prosecution policy. The Prosecution indicated that Landzío was prosecuted as he fell within the category of persons responsible for exceptionally brutal or otherwise extremely serious offences. The Appeals Chamber found that in light of the unquestionably violent and extreme nature of these crimes [the crimes of which Landzío was convicted by the Trial Chamber], it is quite clear that the decision to continue the trial against Landzío was consistent with the stated policy of the Prosecutor to focus on persons holding higher levels of responsibility, or on those who have been personally responsible for such exceptionally brutal or otherwise extremely serious offences (x 614). The Chamber held further that such decision can in no way be described as a discriminatory or otherwise based on an impermissible motive. 9 It is important to note that ICTY trials are not necessarily slower than similarly complex national trials in many national jurisdictions. The United States federal prosecution of the police officers accused of beating Rodney King in Los Angeles took two and one-half months of trial time for criminal conduct which lasted in essence 90 seconds and was captured on videotape. The Milosíevic prosecution, by contrast, involved years of conduct over extensive territory, involving a number of organs including a multitude of military and quasi-military organizations and the alleged commission of hundreds of incidents of serious crimes.

5 The Experience of the ICTY 543 the United Nations (UN) Security Council passed Resolution 1503 urging the ICTY to concentrat[e] on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY s jurisdiction and to transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions. The transfer of cases is based on an assessment of the gravity of the crimes and the level of responsibility of the accused. 10 In preparing and issuing indictments, the Prosecutor considers a number of factors including but not limited to: (1) the seriousness of the crime including its severity, magnitude, nature and impact decided after comprehensive investigation and analysis including reviewing open source material, NGO reports, identifying and conducting interviews of victims throughout the former Yugoslavia and in countries where victims have sought refugee status, forensic evidence, demographic evidence, expert evidence and exhumation and autopsy reports; (2) the leadership level and position in the military and political hierarchical structures as well as information about the military formations, the political organizations, the de facto as well as the de jure command structures, the relationship between political, military, paramilitary and police organizations at the time of the conflict; (3) the responsibility quotient among the senior leaders assessing their involvement, manner of participation, contribution to the crime and importance of their role. Concentrating investigations and indictments on the most senior members or leaders of a criminal enterprise has an impact on investigative methods and strategy. William Nardini in his article about the investigative tools used in the United States points out that cooperating insider witnesses can provide information on more senior members of the criminal enterprise. 11 An incentive among lower level accused to cooperate is the reduction of sentence for testifying and providing information about others in the criminal enterprise. Building a case against the most senior persons responsible may involve a series of cases which work up the ladder, prosecuting lower-level perpetrators in the collection of evidence against the higher-level perpetrators, or in obtaining the substantive cooperation of insiders. The use of such witnesses, both lower-level and higher-level insiders, is a valuable tool in international prosecutions. But as the remaining indictments only reflect the most responsible perpetrators at the highest level, it remains to be seen whether lower-level perpetrators will feel there is an incentive to cooperate when there are no further or pending investigations and indictments. 10 Decision on Referral of Case Pursuant to Rule 11bis, Dragomir Milosíevic (IT-98-29/1-PT), Trial Chamber, 8 July 2005, x W.J. Nardini, The Prosecutor s Toolbox: Investigating and Prosecuting Organized Crime in the United States, supra in this Symposium.

6 544 JICJ 4 (2006), 539^ The Cooperation of Insider Witnesses A. The Utility of Insiders Insider witnesses are valuable both in the investigation and the prosecution of senior political and military leaders, who rarely leave an overt trail of conclusive evidence setting out their criminal intention or involvement. The usefulness of insider evidence does not depend on whether the prosecutions are national or international. Gherardo Colombo, in his article Investigating and Prosecuting Large-scale Crime: the Italian Experience, describes cooperation by a participant in a crime as useful and often necessary; and Nardini, reflecting on useful investigative tools in the United States, confirms that it is often the cooperating insider witness who can finger higher ups in the criminal enterprises for their management role in particular offences. 12 The testimony of a participant in a criminal enterprise may be one of the best and most direct ways to prove the purpose of the criminal enterprise and its members. Accepting that accomplice evidence should be viewed with caution, the ICTY Appeals Chamber 13 has accepted the testimony of an insider witness who provided crucial information on the planning and preparation of an attack that included killing, forcible displacement of the civilian population and destruction of their village. In the prosecution of Slobodan Milosíevic, Milan Babic was included in the indictment as a member of the joint criminal enterprise. Babic spontaneously came forward for interviews with the Office of the Prosecutor and subsequently testified voluntarily in the Milosíevic proceedings despite the fact that he was incriminating himself. He also provided documentation to assist in bringing himself and others to justice. Babic later was indicted, entered into a plea agreement and pleaded guilty to the crime of persecution, a crime against humanity. 14 Testimony of persons involved in the commission of a crime serves other significant purposes such as establishing directly and succinctly, for the first time in a public forum, that the atrocity occurred; and providing direct and detailed evidence as a member of a military or government to confront those authorities and individuals in the region who still deny the atrocities. The acknowledgement of Momir Nikolic for criminal responsibility in relation to events at Srebrenica ç the first Bosnian Serb to do so ç was considered 12 The recent example of the Enron prosecution in the United States comes to mind where the government obtained a key insider and entered into a plea agreement. The defendant pled guilty to a single count of securities fraud and agreed to testify against his co-accused; the Prosecution agreed to seek a reduced sentence based on his cooperation. 13 Appeal Judgment, Kupresíkic et al. (IT A), 23 October 2001; Judgment, Kordic and Cíerkez (IT-95-14/2-A), Appeals Chamber, 17 December 2004 (hereafter Kordic and Cíerkez Appeals Judgment ). 14 Ibid., xx 2, 65^67, 73, 74.

7 The Experience of the ICTY 545 significant to restoring peace in the region, providing a basis for reconciliation and precluding historical revisionism. 15 B. The Development of Insider Witnesses Despite the incontrovertible benefits of insider testimony, in the early days of the ICTY the Prosecution had very few insiders to call upon and an institutional hesitation to use them. Early ICTY cases proceeded primarily on the evidence of victim witnesses, making it more difficult to establish the evidentiary link between the accused, typically high-ranking political or military figures who had planned the atrocities from afar, and the low-level perpetrators who executed them in the field. As the first round of cases was completed and the ICTY prepared to prosecute a second round of serious or higher-ranking offenders issues related to the use of the testimony of insider witnesses, who also accused or suspects, had to be resolved. For some lawyers of the Office of the Prosecutor and within the Tribunal generally, a guilty plea and the concept of plea agreements were not common practice. Prosecutors and judges coming from jurisdictions where guilty pleas and plea agreements were not standard practice were hesitant to accept them. Early judgments in the ICTY and ICTR reflected on the fact that guilty pleas were established in common law systems 16 or that not all legal systems recognize that a guilty plea constitutes a mitigating factor. 17 The procedure for pleading guilty, though developed in the Tribunal s case law, was not adopted into the Rules of Procedure and Evidence until 1997, and the Rule providing the procedure for plea agreements was not adopted until December Despite the fact that plea agreements had been accepted in a number of cases, other judges questioned whether plea agreements were appropriate in cases involving serious violations of IHL. 18 This illustrates the clash of the common law and civil law legal traditions. What seemed obvious to certain common law prosecutors, used to accepting guilty pleas or entering into plea agreements, was foreign to those from civil law jurisdictions. Until the Tribunal had convicted and sentenced some offenders, thus establishing a sentencing framework, it was difficult to estimate the appropriate range of sentence to be considered by Chambers, thereby affecting sentencing recommendations and plea negotiations. In a national system a plea agreement may include an agreed upon or stipulated sentence that binds the Court if the Court accepts the agreement. While Tribunal Rules do not 15 Judgment on Sentencing on Appeal, Momir Nikolic (IT-02-60/1-S), 8 March 2006, x 83 citing the Trial Chamber Judgment. 16 Sentencing Judgment, Erdemovic (IT T), Trial Chamber I, 29 November 1996, x Judgment and Sentence, Ruggiu (ICTR-97-32), Trial Chamber I, 1 June 2000, x Sentencing Judgment, Momir Nikolic (IT-02-60/1-S), Trial Chamber I Section A, 2 December 2003.

8 546 JICJ 4 (2006), 539^558 permit sentence stipulations they do permit a non-binding recommendation to the Trial Chamber as part of the sentencing agreement. Although persuasive, the Trial Chamber is not bound by recommendations and occasionally has demonstrated its willingness to depart from them. 19 Colombo and Nardini describe the need to protect people cooperating with the Prosecution as paramount to ensuring their cooperation and safety at the national level. 20 Protective measures in court proceedings at the ICTY such as closed session testimony, use of pseudonyms, facial distortion or voice distortion assist in securing the testimony of important witnesses. In certain circumstances protective measures such as placing the witness in a witness protection programme are available. At the international level, the lack of enforcement agents, the reliance on national law enforcement agencies in the former Yugoslavia to protect those who may be testifying against what is perceived to be the national interest of the entity or ethnic group, the lack of consistent and reliable intelligence information and the leaking of confidential information are continuing challenges. The Prosecution is aware of instances where witnesses have been interfered with. Names of protected witnesses and their evidence have been revealed to newspapers, resulting in the publication of protected information, 21 and in one case, despite the relocation of a witness as part of a witness protection programme, steps were taken by a third party to locate and interfere with that witness s testimony on behalf of an accused person. 22 Although findings of contempt have been made by the Chambers, 23 the protection of witnesses remains a serious concern. Insiders can and must be used in complex criminal cases because proof of a complex criminal enterprise and its leadership can otherwise be extremely difficult and time/resource consuming. Prosecution of such complex historical cases ç reconstructing the events years later ç lacks the advantages of contemporaneous investigative tools used by national enforcement agencies including police intelligence information, surveillance, telephone intercepts or undercover operations. In ICTY cases, official records may have been destroyed, documents disappeared or witnesses no longer found or available. 19 E.g. Sentencing Judgment, Dragan Nikolic (IT-94-2-S), Trial Chamber II, 18 December 2003; Judgment on Sentence Appeal, Babic (IT S), Appeals Chamber, 18 July 2005, xx 29^ G. Colombo, Investigating and Prosecuting Large-Scale Corruption: The Italian Experience, supra in this Symposium; Nardini, supra note Judgment, Marijacíic and Rebic (IT R77.2), Trial Chamber, 10 March Note that this Judgment has been appealed and at this time is pending before the Appeals Chamber. 22 Judgment on Contempt Allegations, Beqa Beqaj (IT R77), Trial Chamber I, 27 May As indicated in footnotes immediately above, examples of findings of contempt include: Marijacíic and Rebic Trial Chamber Judgment, supra note 22; Beqa Beqaj Judgment on Contempt Allegations, supra note 23, and Tadic, where Dusíko Tadic s former defence counsel Milan Vujin was convicted for contempt in acting against the interests of his own client see Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, Tadic (IT-94-1-A-R77), Appeals Chamber, 31 January 2000.

9 The Experience of the ICTY 547 Though the Prosecution must certainly approach evidence provided by insider witnesses with caution these factors amplify the possible utility of insider witnesses. 4. What Forms of Participation can the Prosecution Rely Upon in Prosecuting Large-scale Crimes or Criminal Enterprises? Large-scale crimes, in the context of armed conflicts in the former Yugoslavia often involved coordinated action between various enforcement agencies (e.g. police, military and paramilitary) and civilian authorities. From the systematic or widespread nature of some of the crimes it can be inferred that the actions of the physical perpetrators were coordinated, organized and involved high-ranking military and/or civilian officials. The criminal liability of high-ranking civilian and military leaders sharing the intent and acting together to achieve the criminal result carried out by the physical perpetrators may have seemed obvious, but one of the main questions for the Tribunal was to decide what form of participation best captures their criminal conduct. Forms of participation are not as developed in the ICTY Statute as they are in the Statute of the International Criminal Court (ICC), which enumerates forms of commission more extensively. 24 Likewise, certain national jurisdictions such as United States, Italy and Germany have established specifically articulated laws designed to deal with persons involved in criminal associations or overarching criminal enterprises. 25 The fact that the ICTY Statute does not have the same level of detail in relation to each form of participation does not prevent the Chambers from determining its extent under customary international law. Though the form of liability must be provided for in the ICTY Statute, 26 it does not need to be explicit to come within the purview of the Tribunal s jurisdiction. 27 The ICTY Statute, unlike the ICC Statute, sets out in somewhat general terms the jurisdictional framework within which the Tribunal operates. 28 This does not prevent the clarification and interpretation of the elements of individual forms of participation. 29 Further, though forms of 24 Article 25(3)(a) ICCSt. 25 For example, in the United States see the Racketeer Influence and Corrupt Organizations Act of 1970 (RICO), 18 U.S.C.A. x1961. In Italy see the Criminal Code, Arts 416 and 416bis, as noted by G. Colombo, supra note 20. In Germany, see Section 129 of the German Criminal Code (Strafgesetzbuch, StGB), promulgated 13 November 1998 (Federal Law Gazette I, at 945, 3322). 26 The Appeals Chamber has found error in a Judgment of a Trial Chamber where a mode of liability was employed that was not valid law within the jurisdiction of the Tribunal: Stakic Appeals Chamber Judgment, supra note Milutinovic, Síainovic and Ojdanic Decision, supra note 4, xx 18, Ibid., x Ibid., x 38.

10 548 JICJ 4 (2006), 539^558 participation in addition to those found within Article 7(1) have not been utilized, 30 Article 7(1) appears to be non-exhaustive in nature. 31 Article 7(1) of the Statute sets out the forms of participation (i.e. modes of liability) by which an accused can be liable for a crime. 32 When prosecuting senior leaders or those otherwise regarded as most responsible for serious violations of IHL, it is not often that they will be directly involved in the physical commission of the crime. Unlike some of the cases in the Rwanda Tribunal, where politicians or leaders were also involved in physically committing crimes or were physically present 33 the most senior or responsible persons accused are more likely to be removed from the actual physical commission of atrocities. Though all forms of participation under Article 7(1) of the Statute could capture different criminal conduct of senior leaders, depending on the facts, there are a few that require particular attention. A. Ordering Where large-scale crimes are carried out systematically by military, police or quasi-military organs requiring communication and coordination it is logical to infer that criminal activity must have been the result of orders. Ordering as a mode of participation covers both military and civilian personnel, so long as the accused person is in a position of authority and instructs another to commit an offence. 34 A formal superior^subordinate relationship is not required. This reflects the reality that, though the persons may not be in a position of military command or part of a structured military hierarchy, they may have sufficient authority or power to cause others to do as they say Though the Prosecution has set forth the term joint criminal enterprise to describe a manner of joint commission, this falls within commits in Art. 7(1). 31 Milutinovic, Síainovic and Ojdanic Decision, supra note 4, x 19. Though the Appeals Chamber indicated that it appeared that Art. 7(1) was not exhaustive in nature, the Chamber did not need to consider this for its decision and made no determination in this respect. 32 The Tribunal has jurisdiction to consider modes of participation that are contemplated by the Statute and existed in customary international law or were proscribed by treaties forming part of the law applicable at the time: see e.g. Decision on Jurisdictional Appeals: Joint Criminal Enterprise, Karemera (ICTR-98^44), Appeals Chamber, 12 April 2006, xx 12^ Judgment, Akayesu (ICTR-96-4-T), Trial Chamber I, 2 September 1998; Judgment and Sentence, Musema (ICTR A), Trial Chamber I, 27 January 2000; Judgment and Sentence, Niyitegeka (ICTR T), Trial Chamber I, 16 May Judgment, Kordic and Cíerkez (IT-95-14/2), Trial Chamber, 26 February 2001, x 28 (hereafter Kordic and Cíerkez Judgment ). An accused may also be liable if they order an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order. 35 For example, in Kordic and Cíerkez, the Trial Chamber found that though Mr Kordic, a politician, did not have a precise position in the chain of command and did not have the power to punish or discipline troops, he exerted both political and military authority in some instances: see Kordic and Cíerkez Judgment, xx 556, 586, 687. See similar findings by Appeals Chamber, in Judgment, Kordic and Cíerkez (IT-95-14/2-A), Appeals Chamber, 17 December 2004, x 969.

11 The Experience of the ICTY 549 But there may be criminal conduct, particularly where persons act in concert, which will not be fully captured by ordering as the form of participation. First, ordering presumes some type of hierarchical relationship where the mid-level commander or physical perpetrators feel compelled to act as a result of the authority of the accused. Ordering as a form of participation captures the criminal conduct of a leader where there is some form of authoritative relationship with those who ultimately physically carry out the crime. In circumstances in which persons jointly decide to commit a crime and are not in a hierarchical relationship or not acting pursuant to a hierarchical relationship, ordering will not be the appropriate mode to correctly capture their joint criminal participation. Second, ordering as a mode of liability may capture those crimes directly committed as a result of orders but fails to recognize full liability where the authority or superior acts jointly with others intent on committing a broader crime and his contribution is the ordering of his subordinates to carry out part of it. If the person ordering has the shared intent for the broader crime, takes steps to achieve the crime and his contribution is to order those under his authority to commit component parts of the crime, it would compartmentalize and limit his liability to only hold him responsible for those crimes he ordered. In Stakic, 36 the Appeals Chamber found that Stakic had participated in a joint criminal enterprise that included leaders of political bodies, the army and police who held power in the municipality, with the common purpose of ethnically cleansing the municipality by persecuting and forcibly transferring Bosnian Muslims and Bosnian Croats in order to establish control. The Appellant was found to have played a crucial role in the coordinated cooperation with the police and army in furtherance of the common goal. 37 As recognized by the findings of the Appeals Chamber, it would be artificial to conclude that he is responsible only for crimes arising from his individual contribution and not for the overall criminal enterprise. B. Joint Commission or Joint Criminal Enterprise If persons committing the crime act in concert, it would be more correct to describe the participation as a form of joint commission or co-perpetration. This is the second form of participation requiring particular comment. In the jurisprudence of the Tribunal, a form of joint commission, recognized as part of 36 Stakic Appeals Judgment, supra note As is evident from the findings in Stakic, the contribution is not limited to the forms of participation set out in Art. 7(1) of the Statute. There may be infinite ways in which a member may contribute to a criminal enterprise such as coordination, setting up prison camps to be used as part of the enterprise or playing an active role in the organisation of the massive displacement (Stakic Appeals Judgment, Supra note 4, x 75); see also Judgment, Kvocíka et al. (IT-98-30/1-A), Appeals Chamber, 28 February 2005, xx 95^99 regarding the contribution to the joint criminal enterprise.

12 550 JICJ 4 (2006), 539^558 customary international law applicable at the time of the Yugoslav conflicts, has been termed joint criminal enterprise. Joint commission, or joint criminal enterprise, is particularly applicable in circumstances in which senior leaders share the intent to commit a crime and each contribute to achieve the criminal purpose. The relationship between the co-perpetrators may or may not be hierarchical, but that is not determinative. It is the joint commission of the crime with the shared intent which defines the relationship. As stated by one author, The concept of joint criminal enterprise has been an important tool in describing crimes committed by individuals acting in concert to achieve their criminal objectives and has made a positive contribution to recognizing and establishing the reality of such joint actions. 38 Even if carried out through others, the crimes are fundamentally the crimes of the members of the enterprise, not necessarily those of the individuals who physically perpetrated it. The concept reflects the reality where large-scale atrocities are committed by the combined action of various forces or agents, and the overarching criminal objective may only be shared by the senior leaders who take steps to achieve its result. For example, in the case where the physical perpetrators may only know one aspect of the criminal design 39 or where the physical perpetrators may not have the specific intent that is shared by the members of the criminal enterprise, 40 it would be artificial to characterize the acts of the members as aiding and abetting the crimes of the physical perpetrators. 41 One issue pending before the Appeals Chamber is whether the person physically committing the crime has to be a member of the joint criminal enterprise. 42 In other words, the question is whether, to be found liable for committing the crime jointly with others, one of the members of the joint criminal enterprise has to be the physical perpetrator. The Prosecution has taken the position that criminal liability of high-ranking 38 G. Mettraux, International Crimes and the Ad hoc Tribunals (Oxford: Oxford University Press, 2005), at For example, where the physical perpetrators of one military unit are not informed of the specific acts of another unit also being used to carry out a part of the overall criminal design. 40 Two scenarios demonstrate that the crime which is jointly committed through others is more accurately described as being committed by the members of the joint criminal enterprise and not necessarily by the physical perpetrators: first, in circumstances where the members of the joint criminal enterprise have a specific intent (e.g. persecution) which is not known by the physical perpetrators carrying out the crimes (e.g. plunder); or second, where the physical perpetrators do not have the requisite intent at all, such as when they are ordered to shell a civilian village but are told only the coordinates and that they relate to a legitimate military objective. For a useful factual scenario articulating this point and others related to joint commission see: Decision on Ojdanic s Motion Challenging Jurisdiction: Indirect Co-perpetration, Milutinovic et al. (IT PT), Trial Chamber, 22 March 2003, Separate Opinion of Judge Iain Bonomy, x As stated by the Appeals Chamber in the Milutinovic, Síainovic and Ojdanic Decision, supra note 4, x Prosecution s Notice of Appeal, Brdjanin (IT-99-36), 30 September 2004 and Prosecution s Brief on Appeal, 28 January 2005.

13 The Experience of the ICTY 551 leaders who share the intent to commit a crime and jointly act to achieve it through various means, cannot be dependent on whether one of them actually physically commits the crime. The matter remains for determination by the Appeals Chamber. The concept of joint criminal enterprise has been challenged as a form of guilt by association or as liability based solely on membership in a criminal organization. 43 This challenge has been rightly rejected by the Tribunal. The ICTY Statute precludes the possibility of prosecuting someone on account of mere membership in a criminal organization. 44 Persons who carry out criminal acts set out in the Statute are liable on the basis of individual criminal responsibility, irrespective of membership in such organizations. As such, the Statute has removed one form of liability that was available to prosecutors at Nuremberg. Under the Charter of the International Military Tribunal at Nuremberg, if a group or organization was declared criminal, the competent national authority had the right to bring to trial the individuals for membership in such a group or organization. 45 A similar provision was included in Control Council Law No Thus, it was the membership that was regarded criminal. 47 But such is not the case under the ICTY Statute. 5. What Kinds of Evidence have Proven Useful in Prosecutions of Serious Violations of IHL at the ICTY? There are certain challenges when constructing a case for presentation before the Trial Chambers of the ICTY, which affect the evidence that is available and that may need to be obtained. A few of them will be listed before dealing with the evidence that has been found to be useful in conducting prosecutions before the Tribunal. A. Challenges Affecting Collection of Relevant Evidence Investigating and gathering evidence of war crimes, crimes against humanity or genocide for the purpose of international prosecutions inevitably means constructing a case after the fact. Though the ICTY was established prior to 43 Ibid. See Defence arguments referenced in x Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993 (S/25704), xx 50, 51. See also: Milutinovic,Síainovic and Ojdanic Decision, supra note 4, x Articles 6, 9 and 10 Charter of the International Military Tribunal. 46 Article II(1)(d) stated that membership in categories of a criminal group or organization declared criminal by the International Military Tribunal was recognized as a crime. 47 Arguably the interpretation and application of these provisions under the IMT Charter and Control Council Law no. 10 resulted in criminal liability being narrowed to voluntary membership with knowledge of the criminal purpose or acts. See A. Cassese, International Criminal Law (Oxford: OUP, 2003), at 136^139; Milutinovic, Síainovic and Ojdanic Decision, supra note 4, x 25.

14 552 JICJ 4 (2006), 539^558 the end of the conflicts in the former Yugoslavia, the ongoing nature of the conflict and the fact that Prosecution investigators were not welcome in many areas meant that much of the gathering of evidence took place some time after the crimes were committed. Similarly, as the Rwanda Tribunal was created after the mass atrocities, investigations could not be contemporaneous; presumably the same challenge has been faced by the Special Court for Sierra Leone. This means that certain techniques for gathering evidence (e.g. contemporaneous wiretaps or surveillance) are not available, making evidence generated contemporaneously all the more useful. Though assistance was provided by international armed forces specifically in Bosnia and Herzegovina as a result of their mandate under the Dayton Peace Accord, the Tribunal did not have its own enforcement agency to perform normal police tasks such as serving subpoenas, carrying out search and seizure operations or arresting suspects wherever they may be located. Obtaining relevant evidence has been greatly dependent on the cooperation of states, including those in the region. Because Judges are not from the region and generally have no knowledge of relevant factors such as geography, locations where the crime took place, distances, language, cultural sensitivities and relevant political or historical background, evidence that sets the context within which the crimes were committed has to be collected and prepared for presentation in court. Though such challenges may occasionally arise when prosecuting at the national level, it is an everyday reality when constructing a case before the Tribunal, requiring extensive effort, resources and time. To prosecute large-scale crimes, each level of investigation requires sophisticated or specialized knowledge. Even at the crime base level there may be a need for medical or professional expertise for exhumations, identification of bodies and autopsies. Specialized knowledge may be required for military analysis in relation to targeting and weapon use, or demographic evidence for establishing population transfer. Collecting evidence related to senior military or political leaders will require, for example, knowledge of military and/or political structures and their hierarchical relationship in times of armed conflict. Essentially, there are no simple cases. Understanding cultural, language or historic factors that may exist when dealing with witnesses from the former Yugoslavia is another challenge. Their collective memory as members of an ethnic group and its portrayal by leaders and the media may be relevant to understanding how witnesses viewed the conflict. 48 Understanding the history of the region is essential to properly 48 Note, for example, the Trial Chamber s findings that General Krstic in a communication to one of his subordinate brigades congratulated them on their efforts to liberate centuries-old Serbian territories from the hated enemy and to prevent further genocide against the Serbian people and his use of derogatory terms in reference to Muslims from the Second World War: Judgment, Trial Chamber, 2 August 2001, x 336. During the Milosevic trial an expert witness testified about the creation of an us versus them mentality to dehumanize victims and the use of collective memories of the perpetrator group in doing so: Testimony of T. Zwann, 20 January 2004, T

15 The Experience of the ICTY 553 understand terminology used by perpetrators for the purpose of stereotyping and victimization. Terms that were used in a derogatory or negative manner in the portrayal of people of different ethnic groups such as chetnik, ustasha, Turks or balijas must be understood both in their historical context and in the context in which they were used during the conflict. 49 The significance of culture, language and history can also be seen in the investigations and trials at the Rwanda Tribunal. As noted in the Judgment in Akayesu, the interpretation of oral testimony from Kinyarawanda into one of the official languages of the Tribunal was a particular challenge due to the fact that it was difficult to translate into French or English. 50 In the Akayesu trial an expert witness on linguistics testified on expressions used in Kinyarawanda for the word rape. To properly appreciate the evidence, the Chamber recognized the need to understand the origin and history of terms such as Inkotanyi. 51 The Trial Chamber in Nahimana et al., noted the need to interpret the word direct in relation to direct and public incitement in light of the Rwandan culture and language. 52 Certain cultural factors affect the evidence of witnesses from Rwanda, including that Rwandans live in an oral tradition in which facts are reported as they are perceived, often irrespective of whether the event was personally witnessed or recounted by someone else. 53 B. The Value of Contemporaneous Evidence As indicated previously in this article, the Prosecution has not had the advantage of contemporaneous investigative tools that can be used during or immediately after the commission of a crime. In circumstances in which the Prosecution is reconstructing events sometimes years after the fact, evidence which originates from the time period when the crimes were committed is crucial. Though testimonial evidence could be included in this category of evidence, reference in this section is to contemporaneous documentary, audio or video tape records. Senior leaders orchestrating large-scale crimes rarely document the overall criminal purpose or detail each criminal step of its implementation. But access to contemporaneous records, notes, videos, minutes of meetings, orders, diaries, intercepts and photographs not only 49 Reference to these terms and their use by perpetrators can be seen throughout the Judgments of the ICTY. For example, see: Judgment, Delalic et al. (IT-96-21), Trial Chamber, 16 November 1998, xx 717, 916, 1269; Judgment, Krstic (IT-98-33), Trial Chamber, 2 August 2001, xx 336, 592; Judgment, Martinovic and Naletilic (IT-98-34), Trial Chamber, 31 March 2003, xx 378, 419, 424, 432, 448, 652, 679; Judgment, Kordic and Cíerkez (It-95-14/2), Trial Chamber, x 671; Judgment, Halilovic (IT-01-48), Trial Chamber, 16 November 2005, xx 407, 504, 564, Akayesu Judgement, supra note 34, x Ibid., xx 146^ Judgment and Sentence, Nahimana et al. (ICTR T), Trial Chamber I, 3 December 2004, xx 1011, Akayesu Judgment, supra note 34, x 155.

16 554 JICJ 4 (2006), 539^558 creates a clearer picture of what transpired but also provides a more accurate portrayal of the players at the time when viewed in light of the events on the ground. At the political level such records of governmental assembly meetings, crisis staff meetings, war presidencies decisions, reports of the police department, newspaper articles, speeches and television interviews have all been significant in identifying the responsible leaders and roles played. For example, in Stakic the Trial Chamber relied on the minutes of the municipal assembly, of which Stakic became President, in conjunction with the events which transpired in the region to conclude that Stakic s alleged peaceful objective was merely the typical language of a politician hiding his real political intentions. 54 In Naletilic and Martinovic, the Trial Chamber found that Republic of Croatia exercised overall control over the Bosnian Croat Defence Council (i.e. HVO) during the period relevant to that case. Evidence relied upon included contemporaneous records kept by Croatian President Tudjman of all his meetings. President Tudjman s recordings of his internal meetings, subsequently transcribed, assisted in demonstrating Croatia s engagement in the conflict in Herceg-Bosna. 55 In the prosecution of Slobodan Milosíevic, the Minutes of the Sessions of the Supreme Defence Council is another example of contemporaneous records useful in painting a vivid picture of the internal workings of the relevant actors at the time. 56 A second set of contemporaneous records that have been found to be useful are intercepted communications, also referred to as intercepts, predominantly electronically intercepted telephone calls or radio transmissions. This type of evidence is common in many national jurisdictions. These wiretaps are generated by the investigation of the crime and are targeted at the criminal participants. At the ICTY, conversely, the Prosecution must seek to obtain recordings of intercepted communications from the intelligence or other branches of armed forces. Prominently featured in the Prosecution case in Krstic were transcripts of conversations between Bosnian Serb Army personnel in July and August 2005 at the time of the atrocities related to Srebrenica, which had been intercepted. 57 The Trial Chamber found this evidence to be compelling. 54 Judgment, Stakic (IT T),Trial Chamber, x 343; see also the Trial Chamber s factual findings in Stakic Judgment, xx 335^408 demonstrating the significance of contemporaneous records and witnesses who could speak to the events at the time. 55 Judgment, Naletilic and Martinovic (IT T), Trial Chamber, 31 March 2003, xx 199^202 and reference in Part II. A. Historical Findings, footnote 20. On appeal, the Appeals Chamber upheld the convictions under Art. 2 of the Statute and dismissed the defence challenge to the international nature of the armed conflict: Judgment, Naletilic and Martinovic (IT A), Appeal Chamber, 3 May 2006, xx 107^108, Milosevic, Prosecution exhibit For an examination of the intercepts by the Trial Chamber see Judgment, Krstic (IT T), Trial Chamber, 2 August 2001, xx 105^117 wherein the reliability of the intercepts was examined including evidence called by the Prosecution in relation to their methods of recording and transcription.