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UNJUST FROM THE START, PART IV: LEARNING FROM THE INQUISITION

By Dr. Kosta Cavoski

[Part IV concludes this series of articles on the War Crimes Tribunal by
Professor Cavoski, the distinguished Yugoslav law scholar.]

MASKED WITNESSES

When in the 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 burned at the stake.

In its fervent desire to protect the victims and witnesses of war crimes
in the former Yugoslavia from the [Serbian] devil, the makers of the
Rules of Procedure and Evidence similarly undertook to disguise the
identity of these 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.

Another innovation 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 witnesses, victims 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 [i.e., a closed session], 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;

b) non-disclosure to the public of any records identifying the victim;

c) giving the testimony through image - or voice-altering devices or
closed circuit television and

d) assignment of a pseudonym."

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 otherwise

"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 of 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 power.

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 an
American court of first instance brings a verdict of not guilty 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 trial.

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
prosecu!
tes, 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 morality;

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 acc!
eptance of evidence of a consistent pattern of conduct relevant to
serious violations of international humanitarian law (Rule 93 paragraph
A).

Finally, Prosecutor 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.

"THE JUSTICE WHICH IS NOT SEEN TO BE DONE"

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.

However paradoxical 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 it has
to be seen to be done". What could be seen at The Hague was not justice
but caprice and injustice.

***

Footnotes

(15) Being a state, one of its institutions or some organization.

(16) Thomas Hobbes, "Leviathan", edited by C.B. Macpherson,
Harmondsworth. Penguin Books 1982, p. 234

(17) Ibid.

(18) Regulation No. 1 of 1994, as amended 17 May 1995.

***

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