Global Policy Forum

By Carla Sapsford and Ana Uzelac*

The Hague tribunal appeals chamber's last act before the December recess was to reduce the prison sentence handed down to former Bosnian Croat officer Mario Cerkez from 15 years to six. He'd already spent seven languishing in the UN detention centre waiting for the final decision in his long-running case. Seemingly embarrassed by this, the war crimes court freed Cerkez some two weeks prior to the appeals judgment being made public.

This is not the first time that a convicted man has been hurriedly released after the appeals chamber handed down a sentence similar to or shorter than the period of time already spent in custody. Cerkez's wartime commander Tihomir Blaskic - originally found guilty of crimes committed in Bosnia's Lasva Valley in the Nineties - was freed from the UN detention centre in Scheveningen at the end of July 2004 after his sentence was slashed on appeal, from 45 years to nine. Most of those convicted by the tribunal only end up serving half to two-thirds of their sentence, depending which country they are imprisoned in - and Blaskic had already spent more than seven years behind bars.

Some tribunal insiders and observers are concerned at the often extraordinary length of time the court takes to begin and complete its high-profile cases. There are cases of defendants, such as the former Bosnian Serb leader Momcilo Krajisnik, spending up to four years in pre-trial custody waiting for their trials to get under way. While proceedings against former Yugoslav president Slobodan Milosevic began promptly, this most high-profile trial is now in its third year. Many others spend years waiting for a final decision to be handed down by the appeals chamber. And now with the court entering the second phase of its completion strategy, which foresees the conclusion of all high-profile trials by the end of 2008, the length of cases is likely to come under renewed scrutiny.

Some court insiders and observers that IWPR has spoken to in recent weeks warn that such protracted trials can end up being perceived as unfair. Others, however, argue that they reflect the complexity of many of the cases. Some delays are the inevitable result of factors such as difficulties in scheduling trials in the tribunal's three courtrooms - more than thirty detainees are currently waiting for their cases to come up - and problems with tracking down evidence. But critics of lengthy trials say they are primarily the product of a combination of bad practices - namely over-ambitious indictments, lack of intervention by judges and the tribunal's own allegedly cumbersome procedures.

International Comparisons

According to IWPR's calculations, based on trial summaries provided by the tribunal on its website, the average Hague accused spends one year and five months in pre-trial detention. Once the trial starts, he or she can count on an average of 108 working days in court. These are often clustered in several active weeks interspersed with occasional adjournments for technical or personal reasons, ranging from the unavailability of a scheduled witness to the poor health of those involved in the trial.

Because of the long wait between the end of the trial and the delivery of its judgment, a total of average of 17 months can pass between the first trial day and the time when the defendant learns his or her fate. To reach this point, the average indictee will have spent just under three years in Scheveningen. If he or she chooses to appeal the judgment, another two-and-a- half years may pass before the tribunal's highest chamber makes a final decision on the case. So an average trial lasts a total of five-and-a-half years from the indictee's initial appearance to the judgment of the appeals chamber.

When considering the length of cases, it is hard to draw comparisons between the Hague court and national justice systems. In spite of a number of basic human and civil rights charters calling for all trials to be expedient, there are no international rules on the maximum length of time an accused can be held in pre-trial detention. The actual length of pre-trial detention varies widely even throughout the well-regulated European Union justice systems. In Poland and Slovenia the maximum length is two years, while in Sweden a trial must start not later than a week after the public prosecutor delivers the charges.

Comparing trial length is complicated by the fact that national jurisdictions rarely deal with war crimes or charges as weighty as genocide, and the limited comparative data currently available reveals mixed results. The trial in Switzerland of Rwandan Fulgence Niyouteze, who was charged with murder, incitement to murder and war crimes, began in 1996 and lasted four years. But German courts, which have so far heard some 40 war crimes cases related to the Balkan conflict, generally manage to complete the entire trial and appeals process within three to six months, excluding the time spent in pre-trial detention.

Many agree that the very nature of the charges dealt with in The Hague is bound to result in lengthy procedures. And observers also note that the tribunal's often-uneasy mix of common and civil law practices can draw out cases, as it includes the essentially adversarial approach of bringing evidence to the court. This involves the time-consuming process of questioning witnesses and the necessary translation of all tribunal documents into English, French, Serbo-Croatian and - with the advent of proceedings against Kosovar indictees - Albanian.

So an average trial length of three years "in cases of the complexity of the tribunal ones, is not too much" to expect, according to Fabricio Guariglia, a former appeals counsel in the Hague prosecutor's office, who is currently working as the senior appeals counsel in the newly-established International Criminal Court. He pointed out that in his native Argentina, the trial of those alleged to have bombed a Jewish centre in Buenos Aires in 1994 lasted almost three years.

Long Indictments

One of the main reasons for lengthy trials, according to many tribunal insiders, is the huge number of charges and crimes listed in each indictment. This dramatically increases the workload of everyone involved and causes delays at every stage of the proceedings. The more senior the accused, the more complicated and ambitious the indictments become. In the cases of top-level military figures and politicians, such as Milosevic or Krajisnik, the charges often span a long period of time and several geographic regions.

Given the court's completion strategy - which envisages the tribunal turning all its attention to the most senior suspects over the coming four years - it is possible that trials of such senior indictees may soon be the only ones dealt with by the tribunal. Tribunal insiders say that long indictments have been a feature of the court's work since its inception, and are a result of the difficulty of gathering evidence in the field and the uncertainty of breaking new legal ground in the war crimes arena.

Some say prosecutors, faced with such difficulties, hoped that even if the big charges could not be made to stick, at least the less significant ones would. Indictments issued in the early years featured an average of around 20 charges, with many containing more than double that number. Some observers have sympathy for the difficulties experienced by the Office of the Prosecutor, OTP, in those first few years. "In the early days, perhaps the prosecutor could justify such 'overcharging' by contending that . it [had no] clear guidance on the amount of evidence that was necessary to carry the burden of proof," former judge Gabrielle Kirk McDonald told IWPR. "But that is no longer a justification," she added.

Some observers - including the tribunal's first chief prosecutor Richard Goldstone - are now increasingly critical about what they perceive to be the prosecutors' habit of throwing a wide range of allegations at war crimes suspects. "I find it to be a cold comfort going for minor charges if you fail to prove the more important ones," Goldstone, who served from 1993 to 1996, told IWPR in a recent interview. "One should go for the jugular. I don't see the point in 'throwing the book' at the accused."

But those currently working in the OTP believe that to restrict the number of charges in any one indictment would be to misrepresent the full extent of the alleged crimes. "The complexity of the indictments reflects the complexity of the crimes," said prosecution spokesperson Florence Hartmann. "Most of our indictees are [accused of] following a pattern of committing crimes, repeating it in a large area for many years in order to reach political goals. We could have chosen to limit this scope, but then the totality and complexity of the crimes would not be presented."

It took six years to prepare the three indictments against Milosevic. These cover crimes committed in Bosnia, Croatia and Kosovo over the course of almost a decade, and are easily the longest and most complex prepared by the tribunal. Hartmann told IWPR that prosecutors are particularly proud of their work on these indictments and the speed with which they were presented in court. "[The] Milosevic case is in some way the most efficient trial for us as we have succeeded in bringing in such a huge [prosecution] case, the biggest at [the tribunal] . in fewer than 300 [court] days," she told IWPR. "We have resisted the idea of charging Milosevic ... with a reduced sample of crimes as [this would] distort the case and prevent the truth from being established."

But ambitious indictments such as these inevitably lead to complex and time-consuming trials. Former tribunal legal adviser Kelly Askin, who currently heads the International Justice Initiative of the Open Society Institute, OSI, estimated that "each additional count adds at best weeks and at worst months to the length of a trial".

Moreover, senior tribunal judge Wolfgang Schomburg said the catch-all wording of some indictments is "extremely dangerous" because it places an undue burden on the indictee and his defence team, who in his view are generally under-resourced compared with the prosecution. "The prosecution often alleges that the accused 'planned, instigated, ordered, committed, or otherwise aided and abetted' one and the same crime instead of focusing on one mode of responsibility.," he said. "It's like going into the forest and shooting pellets in all directions, hoping that some will hit [a target]."

Reticent Judges

Many observers agree that the tribunal's 27 serving judges could also play a more positive role in moving proceedings forward. Under current practice, prosecution and defence alike each produce witness lists which run to around a hundred names, and the testimony of each one lasts at least one day and sometimes much longer. Witnesses often cover similar ground, the examination by lawyers frequently veers off-topic and the proceedings regularly become bogged down in lengthy legal debates.

In the ongoing trial of Bosnian Muslim officer Naser Oric, for instance, the court has already heard from half a dozen witnesses testifying about a single attack on only one of the 14 villages detailed in the indictment against him. On top of that, both defence and prosecution lawyers have a tendency to swamp the court with a sea of motions and submissions. Each of these can take up to a week to be translated and they add to the piles of other motions and submissions, which in the words of the OSI's Askin "consume enormous resources and cause huge waste".

Judge Schomburg, who is perhaps the most prominent representative of the assertive civil law tradition at the tribunal, said, "With more interventionist judges, you could really speed up hearings." His thoughts are also echoed by some of his colleagues who are used to working in far less interventionist common law systems.

A former tribunal judge, who spoke on condition of anonymity, was less than complimentary about his onetime colleagues. "Often the judges just sit there," he said. "They don't ask 'Why is this important, and haven't we already had three witnesses saying this?' That's why [trials last so long] - because they don't control them." "Judges need to do a better job of not allowing unnecessary duplicative evidence," agreed Askin, whilst acknowledging that this may not be easy, since "victims and survivors will also want to tell their full story".

The tribunal's history of reticent judges can be traced back to the early days when the court attracted legal figures with more academic than courtroom experience. In time, more of a balance was struck, with a large proportion of judges now having actual experience of criminal trials. In a recent interview, Judge Kirk McDonald recalled, "When the tribunal was established there were few experts in international humanitarian law, and those who had that knowledge were academics. "However, it became apparent that when the tribunal began to conduct the trials, it was imperative that the judges - especially the presiding judge - had trial experience."

On the other hand, some argue that judges should not intervene too much in a trial, claiming that a case that is allowed to progress at its own pace will be more fair. "The judges are understandably reluctant to exercise overly tight control over very time-consuming defence behaviour, because a fair trial is at stake," legal scholar Claus Kress of the Cologne University told IWPR. Former judge Patricia Wald also warned in a recent article that the intervention of judges can sometimes slow trials down. "I have noticed that such questioning may throw off the rhythm of the prosecution or defence case - casting the judge in the role of an uninvited guest at the party," she wrote.

Lengthy Appeals Process

The protracted appeals procedures that kept defendants such as Cerkez and Blaskic in detention years after their initial sentence was delivered can often last longer than the trials themselves. "Appellate proceedings in the Hague tribunal are wholly excessive," the ICC's Guariglia told IWPR. "They represent probably the weakest point of the whole process. [But] it is built into the system and virtually unchangeable."

Observers agree that the demanding procedure for appeals decisions and the relatively lax rules on what could present grounds for appeal combine to clog things up. As a result, they say, the appellate chamber that the Hague tribunal shares with its sister-court dealing with Rwanda is permanently overloaded.

According to tribunal rules, appeals can be lodged if the sides feel the judges made an error of law or fact, and also in cases where, as with Blaskic and Cerkez, new and important information comes to light after the trial chamber has already issued a judgment. This can turn the appellate proceedings into a de facto retrial - which happened in the Blaskic case.

Appeal judges have to acquaint themselves with the entire record of the trial whose judgment is being challenged, including transcripts and witness testimonies. "This basically requires the judges to assess all evidence admitted during trial. It is absolutely not realistic to believe an appeals chamber can or should do that," Judge Schomburg, who also presides over one of the court's appeal chambers, told IWPR.

And here, some say, all the initial problems come back into play. For instance, Judge Schomburg blames the amount and the length of appeals on the initial indictments. "The first reason for an appeal lodged will nearly always be the vagueness of the indictment," he said. On the other hand, the former tribunal judge IWPR spoke to claims that it is the quality of the judges in the trial chamber that causes lengthy appeals. "Some of the judgments are so badly written and so poorly presented that one could appeal any number of things," this judge alleged.

After slashing Blaskic's sentence from 45 years to nine, appeals chamber judges chastised colleagues who'd presided over the original trial back in 1999, saying time and again that their conclusions were "tenuous". Further appeals are likely as the emergence in the Balkans of more progressive regimes makes official and public cooperation with the tribunal likelier. More new evidence could emerge as Hague investigators are granted greater freedom of movement and better access to government archives, and as larger numbers of witnesses attend court.

High Expectations

Observers agree that often-excessive trial length is to a large extent the consequence of the essentially adversarial procedures and the need to respect the right of all parties. "Time and the criminal process are regrettably not good friends," said Guariglia.

This sentiment is echoed by the court's first chief prosecutor Goldstone. "We made sure we moved slowly and moved carefully," he said, referring to early Hague cases. "If you have trials, they have to be fair, and this takes time."

Others suggest that the problem stems from the huge expectations placed on the court by the UN Security Council, the legal community and those who suffered in the Balkan wars - namely to see justice is done, but also to create an important historical record of the crimes committed. "The court should establish the truth as far as possible in order to hinder any attempts at revisionism, as we had in Germany with the denial of the Holocaust," said Judge Schomburg. "[But] this tribunal has to accept that it is not a truth commission but a criminal court. "[Ultimately, we should not have] human beings waiting for more than seven years in the UN detention unit for the final outcome of their case."

About the Author: Carla Sapsford is an IWPR contributor in The Hague. Ana Uzelac is IWPR project manager in The Hague.