Judging War Crimes

I. SOME BACKGROUND In November 1999, after twenty years as a judge on the United States Court of Appeals for the District of Columbia Circuit, I began serving as a judge on the International Criminal Tribunal for the Former Yugoslavia ("ICTY"). The ICTY was established under a United Nations Security Council Resolution in 1993; its jurisdiction is limited to grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, crimes against humanity, and genocide. It also has temporal and geographic limitations; these crimes must have been committed in the territory of the former Yugoslavia on or after January 1, 1991. Practically, that jurisdiction covers any of the four categories of international crimes committed between 1991-95 among the various Bosnian, Croatian, Serbian, or Yugoslav armies or paramilitary units, as well as the more recent violence in Kosovo. The ICTY has fourteen judges elected for four-year terms by a majority of the U.N. General Assembly from a list of candidates generated in the Security Council; no more than one judge can come from a single country. The current judges come from the United States, France, Italy, Great Britain, Australia, Jamaica, China, Morocco, Egypt, Guyana, Portugal, Zambia, Malaysia, and Colombia. The Statute of the ICTY provides for the imposition of prison sentences on convicted war criminals but no death penalty. The formal working languages of the ICTY are French and English, although typically trials also involve a Serbo-Croat dialect since that is the native language of most witnesses and defendants and many defense lawyers. The three courtrooms are high-tech, allowing for simultaneous video and audio translation among the different languages. The court is organized into three Trial Chambers of three judges each and an Appellate Chamber of five judges. The Appellate Chamber also hears appeals from a separate similar Tribunal, the International Criminal Tribunal for Rwanda ("ICTR"), which tries crimes committed in Rwanda emanating from its genocidal episode in 1994. The same Prosecutor investigates and prosecutes crimes before both the Yugoslav and Rwandan tribunals. The ICTY is housed in a grim, high security, converted insurance building in the commercial section of The Hague. The building has no adornments; judges have their own offices, sparsely furnished, a secretary down the hall and one legal assistant (federal judges enjoy, by contrast, considerably more spacious quarters including a bathroom, at least one secretary within calling distance and two to four law clerks). There is a senior legal assistant assigned to each of the four ICTY Chambers. Since the ICTY has no police force of its own, it must depend on other countries or international peace-keeping forces to deliver the suspects it indicts. As a result, in the ICTY's first three years, 1993-96, no trials were held since it had no suspects in custody (the Tribunal does not conduct trials in absentia). It did, however, indict over ninety defendants for war crimes. Despite a disappointing lack of cooperation in apprehending indictees from the governments of Yugoslavia, Croatia, and the Republika Srpska, the number of suspects in physical detention at The Hague has escalated in the last several years. Some indicted persons have surrendered voluntarily; some have been captured and handed over by supporters of the ICTY such as Austria and Germany; and some have been apprehended by U.N. peacekeeping forces. A few have even been extradited from Croatia and Bosnia. As a result, as of February, 2000, thirty-four accused were in the ICTY's detention unit on the outskirts of The Hague, and thirty had been publicly indicted but were not yet in physical custody. Thirteen accused were at the appeal stage, one had finished trial and was awaiting judgment and sentencing. Two were on trial, while twenty were in pre-trial proceedings. The ICTY is now a very busy court; indeed, its chief operational problem is bringing detained defendants to trial within a reasonable time. …