Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslave Tribunal

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I. THE IMPORTANCE OF WITNESSES IN WAR CRIME TRIALS

Unlike the Nuremberg and Tokyo war crime trials following World War II, the International Criminal Tribunal for the Former Yugoslavia (ICTY), established in 1993, makes lavish use of witness testimony. Telford Taylor, Chief Prosecutor of the Nuremberg prosecution team, commented that his team members "began to realize that the Teutonic penchant for meticulous record keeping would greatly ease our task of proving the criminal charges"(1) soon after embarking on their task of trying Nazi war criminals. Some team members thought the prosecution's case could be proved largely through "document books" accompanied by explanatory briefs presented to the court;(2) even Justice Robert Jackson, the first Chief Prosecutor, had decided "to put on no witnesses we could reasonably avoid," further suggesting that the defense follow a similar pattern.(3) Ultimately, the prosecution called some--but not many--witnesses, and the defense called more than expected, including the defendants themselves.(4) In fact, in trials against all twenty-four first-tier defendants,(5) there were only thirty-three witnesses called for the prosecution and sixty-one for the defendants.(6) This is not surprising given that by the time the Nuremberg trial began, the Allied Military Command had full access to the German archives, as well as the reports of several national commissions that had heard approximately 55,000 live witnesses to war crimes and atrocities.(7)

The ICTY began its tenure in a much colder climate. The Bosnian war was not over, and some of the worst atrocities of the five-year conflict (1991-95), including the genocide at Srebrenica, had not yet occurred. Furthermore, the various "sides" (i.e., Bosnian-Muslims, Bosnian-Serbs and Bosnian-Croats)--aided in many instances by outside forces from remnants of the disintegrated Yugoslavia--were still skirmishing for territory that would eventually provide bargaining leverage at the Dayton Peace Accords negotiations in late 1995. The creation of the ICTY in 1993(8) was thus as much a diplomatic as a humanitarian gesture to show the horrified world that the international community would do "something"--even if governments would not intervene militarily to stop the bloodshed. In large part, it was courageous reporters who, by exposing the seemingly continuous stream of unbelievable tales of brutalities committed on innocent civilians, helped make the ICTY a reality.

Ironically, the ICTY was an empty vessel for its first few years. The first trial (of a relatively low-profile offender whose transfer was negotiated with Germany, where he was already in custody) did not take place until 1996.(9) This was partly a result of the fact that the former Yugoslavia was restructured under the Dayton Accords in late 1995 with no clear winners or losers. Certain areas, such as Serbia, Croatia, and Republika Srpska in Bosnia-Herzegovina, thus became practically inaccessible to the ICTY investigators, who could not obtain critical documents (if they even existed) held by entities unsympathetic to the Tribunal's existence or goals. With time, political transformations in these countries resulted in greater cooperation with the ICTY in securing documents, defendants, and witnesses; the final decisions about their availability, however, still sat in the hands of governmental authorities, which were often less forthcoming than hoped. In all, as the workload of the ICTY rapidly escalated from 1997 onward, prosecutors soon learned they could not depend nearly as heavily on "paper trails" to prove war crimes as their Nuremberg counterparts had. In fact, in most cases they needed substantial numbers of eyewitnesses to prove crimes had occurred, as well as expert witnesses to justify or impugn the defendants' acts. As a case in point, eyewitness testimony from a former member of the Bosnian Serb Army who had personally participated in the execution of thousands of Bosnian Muslim men following the fall of Srebrenica in 1995 was a key part of the prosecutor's case in one trial in which I participated. …