The Yugoslav War Crimes Tribunal: Part Two
May, Radmila, Contemporary Review
It is of the utmost importance that the charge, arrest, detention and trial of suspects is carried out according to due process, the procedure for which is laid down in the Statute and Rules.
The arrest of a suspect is made under an order or warrant of arrest issued by a judge of the Tribunal. Such an order or indictment is only issued on confirmation of an indictment prepared by the Prosecutor. The indictment contains the name and address of the suspect, a statement of the facts of the case, and the crime with which the suspect is charged. The indictment is prepared when the Prosecutor is satisfied that there is sufficient evidence to provide reasonable grounds for believing that a person has committed a crime within the jurisdiction of the Tribunal.
The actual process of investigation is one of the most difficult that the Tribunal has to face. The Statute empowers the Prosecutor to initiate investigations either on its own accord or on the basis of information obtained from, inter alia, governments, U.N. organisations, and non-governmental organisations. The Prosecutor has the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. A considerable staff is required to carry out these investigations. Many of these on-site investigators are former police or soldiers, and the difficulties and potential dangers should not be underestimated. The expenses of the investigations are considerable, particularly where exhumations, involving forensic scientists of various persuasions, are concerned. But they have to be borne: not only is the burden of proof of the defendant's guilt on the prosecution throughout the trial, but also the judge who signs the indictment must be satisfied that there is a good case for the indictment.
One of the difficulties that this Tribunal faces is that there is a dearth of documentary evidence; the 'paper trail' that made proof of guilt in the Nuremberg Trials comparatively easy to establish is here often lacking. There is a great deal of personal testimony not all of which is entirely trustworthy. A notable example of this occurred in the Tadic trial: a prosecution witness could not, it was conclusively established, have seen what he said he had seen, and it then transpired that he was not in any case who he said he was but had, he alleged, been coerced into giving false testimony by death threats from the Government representing the victims in that particular case. Nor is that the only case in which undue influence of various sorts has been alleged. And although there is no doubt of the good faith of the vast majority of witnesses, as the years pass their recollection of events must become less clear. This is less likely, however, to be a problem in the case of prosecutions arising from the Kosovo conflict because the NATO countries have made information available to the Prosecutor, statements as to alleged atrocities have already been taken from many witnesses, and investigators are already in the province pursuing enquiries. All this means a much shorter time-scale between commission of the atrocity and the investigation which will be the basis of the prosecution case.
The Prosecutor does have the power to call on Governments for assistance. Not all Governments have been responsive. The Serb Government has refused to render assistance in any shape or form; indeed, it does not recognise the Tribunal. The Croatian Government has surrendered several indictees to The Hague but it has refused to surrender others.
When the Prosecutor is satisfied that there is sufficient evidence to found an indictment it is then transmitted for review to a judge of one of the three trial chambers. He or she will either confirm the indictment, if satisfied that a good case has been made out, or dismiss it. If the indictment is confirmed the judge may make such orders as are necessary including issuing a warrant of arrest. …