The defendant,
Slobodan Milosevic, Yugoslavia's former leader, arrives each morning
immaculately groomed. He favors dark blue, wool business suits of
conservative British cut, freshly ironed blue or white cotton dress
shirts with French cuffs, and silk ties, in either vivid maroon or red-white-and-blue
regimental stripes. His black shoes are meticulously polished, his white
hair carefully combed and recently cut. And his black leather Hermes
briefcase is invariably well stuffed in preparation for the day to come,
since he has chosen to appear pro se and is enthusiastically waging his
own defense – a situation that is unusually challenging for both his
judges and his prosecutors,
who must afford him a "fair trial," 1 but seems
very much to the liking of "the Accused," as Milosevic is often termed.
TORN POSTER of Slobodan Milosevic,
Belgrade, 2001
Before going to The Hague, I had followed the
proceedings on' a regular basis, either by watching live webcasts at
3:00 A.M. on the Internet or by downloading trial transcripts when they
appeared on the U.N. website a couple of weeks later. As a form of
reality television, the trial is, to put it plainly, a bit of a slog.
Occasionally, there is a day when a witness gives as good as or better
than he gets under Milosevic's blunt but frequently effective
cross-examination. And many of the so-called crime-based witnesses
(often farmers from tiny villages) tell utterly harrowing stories of
narrow escapes from death squads and of helplessly watching their sons,
daughters, and parents being summarily executed. There have even been a
few insiders (or "co-perpetrators" of Milosevic's "criminal
enterprise," to employ the language of the indictment) who have given
true-life cloak-and-dagger details of how guns and money made their way
from Belgrade to either nationalistic local militias or the sinister
paramilitary groups responsible for most of the decade's worst dirty
work. But ultimately the most interesting challenge in watching the
proceedings is less about trying to sort out the daily testimony as it
is presented by the prosecutors and more about trying to size up
Milosevic as a man – and to ponder the enduring human capacity for evil.
For as you watch Milosevic conducting his own defense, peppering every
witness with minutely detailed questions – regardless of how distant or
unimportant the witness may be to the issue of Milosevic's own part in
events – it is hard to avoid concluding that here is someone (1)
temperamentally incapable of delegating the smallest task, (2) utterly
obsessed with knowing every minor aspect of just about everything, and
(3) remarkably jealous of continually maintaining total control over
whatever he may be doing, whatever it might be. 2 Fortunately
for Milosevic, nothing he says or does in the courtroom when acting as
his own advocate will affect the judges in any way in their final
assessment of the case's "evidence."3 But one can glean clues to his
personality from the pro forma way in which he usually greets the
crime-based witnesses, particularly those whose stories are the
saddest. "I am sorry for what happened to you," he'll say, in a harsh
baritone. Then, virtually without a pause, he'll add, "if it
happened to you."
The International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991 (lCTY) was established in May 1993, after nearly four years
of horrific news coverage fueled an impassioned worldwide public
consensus that it was imperative for the international community to do
something. Almost three years of diplomatic initiatives, U.N.
special reports, various ultimatums, and the imposition of sanctions
had failed to have any appreciable effect on the conflict in Yugoslavia,
or, evidently, to make much of an impression on Yugoslavia's political
and military leaders. When it became clear that neither the UN. nor NATO
was willing to mount an invasion force to impose peace, the
United Nations Security Council passed Resolution 808, setting in
motion the process for establishing an ad hoc tribunal to go after as
criminals those responsible for violations of International Humanitarian
Law in Yugoslavia. 4 It seems unlikely that initially anyone
believed the top leadership of Serbia or Croatia would be brought to
trial. Instead, it was hoped that the threat of prosecution could
be part of a strategy that might put effective pressure on the parties
to start complying in a more wholehearted way with the will of
the international community. But this first tribunal began to take
on a life of its own and paved the way for establishing other IHL courts under the U.N.'s auspices. In November 1994 the Security
Council passed Resolution 955, setting up a second, closely related ad
hoc tribunal to deal with events in Rwanda (with jurisdiction over
appeals from the two tribunals vested in a shared appellate
division). And in the years since, the U.N. has set up other additional
tribunals for East Timor and Sierra Leone. These have been
created on a slightly different model than that of the Yugoslavia
and Rwanda tribunals, the thinking being that justice would be better
served if the courts were located within the country where the conflict
had taken place and if at least some of the judges were nationals of the
country concerned. 5
The ICTY is divided into three wholly separate,
mostly harmonious entities: Chambers; the Office of the
Prosecutor (OTP); and the Registry, whose function is not unlike that
of a Clerk's Office in an American court but which also oversees
many areas of responsibility usually well outside the umbrella
of a national court's operations, such as running the legal-aid
program by which almost all defendants get legal counsel, seeing to all
aspects of the welfare of detainees on trial, and
administering nearly every aspect of the Tribunal's relations
with witnesses, including protection measures and travel. In general,
the prosecutors have received most of the mainstream media's
attention, beginning with Richard Goldstone, the influential and
charismatic South African Constitutional Court justice, who took a leave
of absence from his post to accept an appointment as the Tribunal's
first prosecutor. Goldstone had the shrewd sense to know that if the
Tribunal did not remain in the news, priming the world's indignation,
the will of the international community to see the Tribunal become
operational was almost certain to flag. Chambers and the Registry, which
both tend to be comparatively reticent, may not always see matters from
quite the same viewpoint as the Tribunal's prosecutor, whose statements,
more often than not, tend to be what are quoted by journalists.
During the ten years
the ICTY has been in existence, it has completed, against many less
celebrated defendants, a score of trials that are bound to have lasting
importance, first in establishing the specific judicial facts of what
happened in Yugoslavia between 1991 and 2000 but also (and potentially
of far greater importance) in establishing exactly what kind of conduct
within the context of armed conflict actually constitutes, for example,
Genocide, Crimes Against Humanity, and Grave Breaches of the Geneva
Conventions. 6
In addition, the cases that the Tribunal has decided
are beginning to create a body of specific blackletter law 7
and to provide some general guidance about just who, in addition to
those who have actually been physically involved in committing
atrocities, may be held personally accountable for IHL crimes – either
because crimes were committed on their orders; because they are deemed
accomplices on the basis of their assistance to those directly involved
before, during, or after events; or under some theory of "command
responsibility," 8 which, as a matter of far-reaching legal
precedent, may develop into the Milosevic case's most significant and
controversial issue.
In terms of the sheer quantity of information that is
freely made available, in remarkably rapid time, it is difficult to
complain about the ICTY, which puts any U.S. court to shame. You can
readily access all 30,000 pages of the transcript of the trial's first
eighteen months (though a comparatively small number of pages are
redacted to preserve the confidentiality of "protected witnesses," who
are believed to be in some imminent personal danger for coming to
testify at trial) as well as the half-dozen decisions made by the
Tribunal's appellate chamber in the case, especially those from January
and February 2002, which determined that Milosevic's trial would be held
in a single long proceeding instead of being divided into two shorter
ones, as originally planned. You can obtain a copy of the three-part,
163-page indictment, and with it the prosecutors' initial 50-page
pretrial brief concerning the conflict in Kosovo between January and
June 1999 as well as their 306-page pretrial brief concerning earlier
conflicts in Croatia and Bosnia between 1991 and 1995.
Also available are any
of roughly 200 decisions and orders that the Milosevic trial court has
already issued, some on comparatively minor questions such as
scheduling but many others of crucial importance (such as that
concerning the events contributing to Yugoslavia's disintegration, which
the court has already decided to accept as "adjudicated facts"). Then
there are the judgments of other Tribunal cases. Among the most
important of these is Prosecutor v. Dusko Tadic, decided
in May 1997. Tadic, a zealous Bosnian Serb nationalist, was a small-town
cafe owner who worked as a policeman following the Serb takeover of the
Prijedor District in 1992. During his off-hours, he was a regular
visitor to the three detention camps in the area – Omarska, Keraterm,
and Trnopolje – and participated on numerous occasions in sadistic
beatings and torture of the mainly Muslim inmates of Omarska, the most
notorious of the three camps. He was also involved in the local
"cleansing" campaign, though it is unclear to what extent. The case
remains important to tribunal jurisprudence because it dealt with such
fundamental issues as the "legality" of the Tribunal's creation, the
logic of its jurisdiction, and the protection of witnesses. The Tribunal
also had to determine, for the first time, the basic narrative of what
had happened in Yugoslavia. 9
The problem for anyone
attempting to follow the Milosevic trial is that institutional
"transparency" does not necessarily imply that whatever is made
available to the public is also readily intelligible. The daunting
volume of what is available can seem anything but helpful if you are
seeking to make some general sense of the Tribunal's work and mission as a whole, and particularly
if you are trying to understand where the enterprise of international
criminal justice might be going. I suspected there was much about the
current rapid development of this area of law that I was failing to
grasp, at least beyond a general sense that its importance had been
growing at a surprising rate and that the Yugoslavia Tribunal had been
a catalyst. The only thing to do was to visit The Hague, where the
Tribunal is located, and see if any of the people who worked there would
speak with me. My hope was that if I could get a handle on some of the
more practical concerns in the decision to try Milosevic, I might begin
to get some sense of the world's future prospects for bringing its many
other Milosevics to justice.
II
A criminal trial is anything but a pure search for
truth. When defense attorneys represent guilty clients – as most do
most of the time – their responsibility is to try, by all fair
and ethical means, to prevent the truth about their client's
guilt from emerging.
–
Alan Dershowitz,
Reasonable Doubts (1996)
|
In the week before my departure I was
determined to seek out at least a few of the many Americans who had
spent time working at the Tribunal. Like other organs of the United
Nations, the rules that apply to the ICTY provide that no two of the
current sixteen permanent judges may be nationals of the same country.
Once I reached The Hague, I hoped, might be able meet the current
American judge at the Tribunal, Theodor Meron, a distinguished scholar
who has taught International Humanitarian Law for many years at the NYU
law school. But since a number of people I had spoken to had claimed
that the Tribunal's existence, at least during its early years, had
been possible only because of strong – albeit far from unanimous – behind-the-scenes U.S. support (especially from Madeleine Albright,
first at the U.N. and later as secretary of state), I was also,
accordingly, eager to meet Meron's American predecessors. The most
recent had been Patricia Wald, for twenty years one of the most
respected judges of the Washington, D.C., Federal Court of Appeals.
Before Wald, there had been Gabrielle Kirk McDonald, a former federal
court trial judge from Texas, who had been one of the first eleven
judges appointed to the Tribunal in 1993 as it began operations. Like
Meron, McDonald had been president of the Tribunal (from 1997 to 1999),
which gave me ample reason to hope her overview and knowledge of the
first years would be enlightening. 10
Since McDonald was
coming to New York for a few days, she agreed to lunch, suggesting that
the dining room of the Regency Hotel on Park Avenue, called The Library,
was both quiet and congenial at midday. I knew comparatively little
about McDonald, except that much of her career had been spent as a top
civil-rights litigator in private practice in Houston, specializing in
class-action lawsuits, and that when she had been appointed to the U.S.
District Court in 1979, at the tender age of thirty-seven, she was only
the third African-American woman to be appointed to the federal bench,
and the first from Texas. Since I had worked as a law clerk, after
graduating from the Yale law school in the early 1980s, I hoped that my
background might help me avoid at least a little of the underlying
condescension that experts usually find unavoidable in their
conversations with lay people about specialized subjects.
The Library, as it
turned out, was aptly named if your idea of libraries includes a large
color television (with the sound turned down, tuned to CNN) and you
regard books with the disdain implicit in the professional decorator's
terminology, which refers to them as "furniture." Still, it was, as
McDonald had said, the perfect setting for conversation. While I waited,
Saddam Hussein flashed on the screen above me and mute commentators
standing in front of brightly colored
maps of the Middle East tried to explain to viewers
where in a general way Iraq was located. 11
McDonald is tall and slim and possessed of an almost
offhand elegance. The hint of cultivated Texas mixed into her accent
gives her voice an agreeable music. I asked about the Tribunal's first
years, and she told me that the key had been the remarkable enthusiasm
of the small and very able group who had taken posts at the start.
Nearly everyone involved, she explained, believed that they were part of
an "important and noble enterprise" they were determined to make work.
When she'd first arrived, the Tribunal had only the temporary use of a
small office in the Peace Palace 12 (where the U.N.'s
International Court of Justice is based), and a lengthy search for a
suitable prosecutor had been the first major obstacle to be faced. Ramon Escovar-Salom, the public prosecutor of Venezuela, had accepted the job
(in October 1993) but changed his mind less than four months later.
Accordingly, with no immediate prospects for any defendants being
transferred into the custody of the Tribunal, the group of eleven
judges, including McDonald, had begun their work by drafting detailed
rules of procedure, which would embody contemporary international
standards for fair trials and humane detention of persons accused of
crimes. This was a momentous undertaking. The only predecessors of the
Tribunal had been the Nuremberg proceedings (along with a string of
important war-crimes trials that followed, held in Germany under
American auspices between 1947 and 1949) and a trial somewhat similar to
Nuremberg held in Tokyo of Japanese leaders. In both of these cases, the
rules of procedure adopted had been fairly cursory and, at least at the
Tokyo tribunal, had vitiated any claim to basic trial fairness. 13
McDonald enlisted the help of the U.S. Justice Department to produce a
first draft, and although this initial version of the rules seemed a
reasonable starting point to her judicial colleagues – from Italy, Costa
Rica, Nigeria, China, Canada, Australia, Pakistan, Egypt, Malaysia, and
France – their first impression, she admits, was, "It's so American."
As for the length, complexity, and costs of trials at
the Tribunal, a recurring subject of criticism, McDonald pointed out
that, in any international trial, some costs, such as translation of
both documents and live testimony, are obviously unavoidable. 14
We talked about what she had been proud of during her tenure at the
Tribunal. She explained that, although rape – when carried out on a
widespread and systematic basis – had been specifically made part of the
statute that created the Tribunal, and had been defined as a "war
crime," prosecutors had not initially paid much attention to crimes
against civilian women per se. This, said McDonald, is no longer true,
and the Tribunal's cases are increasingly regarded as significant and
pioneering precedent for what is now emerging as a significant
imperative of International Humanitarian Law.
III
Currently, our Tribunal has approximately twenty
investigators for all the crimes over which it has jurisdiction.
. . . This, I believe, speaks volumes for the tremendous problems with which we are
confronted.
–
Judge Antonio Cassese,
president of the International Criminal Tribunal for the Former
Yugoslavia, November 14, 1994
|
Whatever your expectations, the anonymous,
three-story, rough white-brick building housing the ICTY is almost
certain to disappoint. The Tribunal's immediate neighborhood, about
half an hour's ride on the Number 10 tram from The Hague's historic
center of cobbled streets, brick churches, bicycle paths, canals, parks,
palaces, small shops, embassies, museums, elegant Old World government
buildings, and understated luxury hotels, is a slightly run-down,
vaguely suburban, mixed-use zone of residential, commercial, and
industrial structures. You might be in nearly any small and dreary city
nearly anywhere in northern Europe.
Originally built in the Churchillplein Plaza as the
corporate headquarters of the Aegon Insurance Company, the ICTY's
building dates from the early 1950s and suggests a grudging admiration
for the neoclassical simplicity of the Italian Fascist period. Probably
the most immediately striking feature of the Churchillplein is not the
Tribunal but the Congress Centrum's football-field-size fountain and the
animated advertising sign hawking stage shows like Disney on
Ice and The Sound of Music. The Tribunal, in contrast, takes
low-key discretion to an extreme, and the only hint of what goes on
inside is an enormous satellite dish atop its roof and the pale blue
U.N. flag hanging listlessly on a flagpole in front of the building's
tall, black iron gateway. It is easy to miss.
In theory, any interested member of the public is allowed to
attend Tribunal trials. But security is tight. You present yourself at a
guardhouse some twenty feet away from the building, show your passport
to a uniformed U.N. officer sitting in a booth, and obtain your blue or
pink ticket, duly stamped with the date and indicating your status as
VIP, Press, or Visitor (or some combination thereof). Then you walk
through a metal detector sensitive enough to be triggered by no more
than the combination of a watch, a small belt buckle, and the metal
eyelets of shoes, so you must empty your pockets and begin the whole
ritual again.
Once inside the
building, you undergo security screening a second time before you are
allowed to go upstairs to the visitors' gallery of Courtroom One, which
is occupied most mornings by the Milosevic trial. There are usually few
spectators present – from less than ten to around fifty, depending on
whether something new or noteworthy is going on. All Tribunal courtrooms
are rigged with cameras in surveillance style, and most offices in the
Tribunal building have televisions that allow access to the court's
closed-circuit system. 15 Almost no one, except the members of
Milosevic's Belgrade defense team, stays for the duration of the
session. At the entrance, you will see a rack of radio transmitters,
and unless you are fluent in English, Bosnian/Croatian/Serbian – "B/C/S," as it is called here, with a nicely politic sense of recent
history – and Albanian, you'll want to take one. Earphones neatly coiled
are to be found at each of the gallery's hundred or so chairs.
Earphones, you soon
realize, are worn by everyone, not just visitors. Although translators
remain unseen at the Tribunal – they occupy a booth with one-way glass
on the left wall of the courtroom – most often it is their voices that
you, the judges, and the prosecutors hear. This is a matter of some
significance, since in a trial setting much has traditionally turned on
a judge's opportunity to experience and assess "the demeanor" of a
witness and how he or she sounds when speaking. 16
The day of my
arrival should have been an especially exciting one to watch. One of the
case's more highly placed political "insiders," officially known at the
time only as "Witness C-061," was beginning the third of eleven days of
, testimony about the founding within Croatia of the separatist Serb statelet of Krajina in the early 1990s. The hope was that Witness C-061
might provide crucial evidence for establishing both Milosevic's
personal involvement as a matter of fact and his "intent" as a matter of
law. The prosecutors contend that the so-called Log Revolution – the
harbinger of the rapid fragmentation of Yugoslavia into increasingly
polarized, antagonistic ethnic groups and a decade of savage conflict – was not a spontaneous grass-roots movement but a carefully planned set
of events, fueled by propaganda and orchestrated on Milosevic's orders – or, at the least, carried on with his knowledge, approval, and help.
Milosevic's control of Serbia's media, and his use of it as an
instrument of state for demoralizing his enemies while bolstering the
morale of combatants, as well as a means of persuading his
constituency, is an important part of the prosecutors' case. In the
event that the trial court decides that Milosevic's propaganda campaign
constituted conduce they deem criminal in nature, a great many thorny
issues about the relationship between a country's press and its
government's war effort will need to, be more squarely faced than they
have been in the past. It is important to bear in mind that prior to and
during Yugoslavia's period of conflict, the rhetoric of Belgrade,
presented to its citizens in the form of news reports and government
intelligence, suggested that Croatia was mounting a campaign of
genocide against all ethnic Serbs, and that the ethnic Muslim population
of both Bosnia and Kosovo were "terrorists" closely allied with such
radical foreign groups as the mujahedeen.
Trials often have been compared to plays, but the
public visitor to virtually any proceeding involving a serious
violation of International Humanitarian Law will experience something
more like a "set visit" to a major Hollywood movie. You will see, even
over the course of several lengthy days, only a small, frequently dull
or mystifying piece of a long and complex story, and unless you've read
the script with care (which is to say, the indictment), you will have
absolutely no idea where the piece you've seen belongs. In the Milosevic
case, the last-minute joinder of three separate indictments has made it
exceedingly difficult for an observer to follow the trial's basic
narrative. It was determined that Kosovo, the first of the three
indictments filed (chronologically, the historic third act of
Milosevic's political career), should be the first part of the
prosecution's case; the case against the accused for crimes committed
in Croatia (Act I) and Bosnia (Act II) would be presented afterward.
Witness C-061 figured at a comparatively early stage in the chronology
of Yugoslavia's breakup, so the idea apparently was to use his
testimony about his role in helping to create and run Krajina, and the
contact he'd had with "Belgrade," to show that Milosevic had instigated
or been an early party to events. Since Milosevic has consistently
claimed that he was defending or supporting his fellow Serbs against
ethnically motivated violence, and not leading a campaign instigated by
Serbs against others, a number of journalists were optimistically
predicting that C-061 might prove to be the case's "smoking gun." Maybe
C-061's testimony wouldn't cause Milosevic to break down in open court
and confess, but it was thought that a face-to-face confrontation
between the two "co-perpetrators" might undermine Milosevic's version of
events. Before the end of his first week on the stand, C-061, in
response to four days of Milosevic's taunting cross-examination, made
the dramatic decision to give up his status as a protected witness and
reveal that he was – as most journalists covering the trial had
assumed – Milan Babic, at various times the president, prime minister,
and foreign-affairs minister of Krajina.
It is difficult to infer exactly what sort of trial
the prosecutors originally hoped to bring. Their indictment against
Milosevic for IHL crimes in Croatia is confined to counts of Crimes
Against Humanity, Grave Breaches of the Geneva Conventions, and
Violations of the Laws or Customs of War. In this indictment, although
fifteen other participants are named in "the joint criminal enterprise,"
Milosevic is the sole defendant, implying, as in fact is the case, an
intention to try him on his own. The Kosovo Indictment, however, names
him and four others as defendants, implying the intention to hold a
trial more like Nuremberg, in which top ministers and military leaders
would share the docket. The Bosnia Indictment, on the other hand, is
much the same as the Croatia Indictment, though an additional count of
Genocide is added. Milosevic's fourteen key co-participants are named in
this indictment, but he is charged as the case's sole defendant. Many of
those who are named in the three indictments, such as General Ratko
Mladic and Radovan Karadzic, have also been charged in other
indictments. Consequently, they are fugitives whom all U.N. member
states are under obligation to arrest and transfer to The Hague if found
within their territory. Others, such as Biljana Plavsic (Karadzic's
successor as president of Bosnia's separatist Serb republic), have
chosen to surrender to the Tribunal – and in Plavsic's case, pursuant to
a plea bargain, she has already pleaded guilty and been sentenced. Still
others, including Croatian president Franjo Tudjman and the notorious
paramilitary leader Arkan, are dead.
Time is probably the
most important recurring issue in the case. And Milosevic's decision to
represent himself, his regular exercising of his "right" to equal time
for cross-examination, and his bouts of chronic illness have in
combination given him a crude but effective strategic advantage. He
almost certainly has concluded that there is little chance he will be
found innocent of all sixty-six counts of the indictments against him,
and realizes that conviction for anyone of them carries the
probability of a long prison term. Since he is now sixty-two years old,
even a moderate sentence would be for all practical purposes a life
sentence. From his point of view; the only thing that will change when
his trial is concluded is his status from that of an accused, presumed
innocent and in detention, to that of a convict serving a prison term.
Accordingly, he has every incentive to drag the trial on for as many
years as possible. Each day Milosevic can fill or have cancelled because
of illness is potentially one day fewer for the prosecutors to present
their case in all its detail. And the net result, already plainly
evident, is that a far less comprehensive case will be made against him
in the end. 17
The case's lead prosecutor, Geoffrey Nice, is a
British barrister with long experience in both criminal cases and
extremely complex civil litigation, and when in court he displays an
easy command of the logic and details of his case, the applicable law,
apposite Tribunal precedent, and the subtleties of the Tribunal's
continuously evolving trial procedure. Moreover, he seems attuned to
the practical wisdom of the old litigator's saying, "It is better to
know the judge than it is to know the law." In more than a year of
watching the case, I have never seen him ruffled in any way by tough
questions from the bench, though he is entirely capable of purposefully
showing his exasperation at rulings he feels unwise or that have not
gone his way. Nice is small, lithe, and dark-haired, and unlike his
"learned colleague" Steven Kay (the barrister usually leading the team
of amici
appointed to raise legal arguments on Milosevic's behalf), Nice does
not wear the barrister's traditional white-powdered wig to court,
though, like everyone else in the room, except the court reporters and
guards, he does wear black robes and the starched white collar, or
"bib." 18 If I have a cavil about Nice, it has little to do with
the substance of his skills or the thoroughness of his preparation and
only to do with his courtroom manner and the style of his advocacy.
Always at pains to cast his argument or request in solicitous terms of
how the OTP might better or more fully be of "assistance" to the bench,
he reminds me of the various head boys I instinctively disliked at
boarding school.
Dermot Groome, the
American lawyer who has most often appeared in court on the prosecution
team, is tall, blond, broad-shouldered, and always well prepared,
poised in direct examination and possessed of a canny ability to zero in
on what of consequence has really been put at issue in the course of
Milosevic's cross-examination. He has been in charge of the Bosnia phase
of the case, and he is skilled at quickly making a few brief, big, and
straightforward points during redirect.
Hildegard
Uertz-Retzlaff, a third principal member of the prosecution team who
regularly appears in court, is addressed by Milosevic as "the Lady on
the Opposite Side," a mix of outward gentlemanliness and pointed
condescension that is clearly meant to be irritating. Since the Croatia
charges are her part of the case, it falls to her, on the morning I
arrive, to examine Witness C-061. Perhaps because English is not her
first language, or because she is from Germany, a civil-law country
where trials are conducted on a non-adversarial basis, she is noticeably
less smooth on her feet than her two colleagues, and her deliberate, step-by-step style is sometimes frustratingly slow. 19 Unlike
Nice, Uertz-Retzlaff can be rattled when things go wrong – and
particularly by the almost thespian displays of pique of presiding judge
Richard May, who clearly sees hurrying matters along as a key part of
his role in the management of trial time.
Judge May is strict but
scrupulously fair, almost preternatural in his understanding of human
weakness and wickedness in every guise, impatient, very rarely fooled,
and as quietly capable a criminal court judge as I have ever seen. Even
Milosevic seems to grudgingly afford him a measure of respect. His
memory and grasp of detail of the case presented thus far is often
tested and displayed, especially when Milosevic on cross-examination
tries to sum up or restate a witness's prior testimony for purposes of
posing a leading question. Whenever May feels Milosevic has crossed the
boundary from recasting data in an advantageous light into genuine
misstatement, he pulls out his handwritten notes, almost instantly
locates the testimony alluded to – from hours, days, or weeks earlier – and corrects Milosevic with verbatim quotation. 20
The two other judges
sitting on the Milosevic case, Patrick Robinson of Jamaica and O-Gon
Kwon of South Korea, also are jurists of impressive prior
accomplishment. Prior to his appointment as a judge of the ICTY,
Robinson devoted much of his legal career to IHL and human-rights
concerns, frequently acting as his country's ambassador and/or
negotiator on treaties. He is also an experienced prosecutor and was
for several years a deputy solicitor general of Jamaica. He is the most
empathetic of the three judges, and his questioning suggests he sees as
paramount the victims' viewpoint as well as that of the criminal
defendants. Of the three judges, he is the most skeptical of Nice's
various proposals to assist the bench and speed up the trial, and the
most consistently solicitous of Milosevic's health. Judge Kwon, the
youngest of the three judges, holds a 1985 graduate law degree from
Harvard and was a rapidly rising judicial star in Korea before his
appointment to the ICTY. Appointed senior judge in the Seoul District in
1999, he was elevated to senior presiding judge in the Taegu High Court
in 2000.
The morning moves
slowly. From the visitors' gallery what appears in transcripts as
several blank redacted pages translates into long idle spells of
pantomime colloquies. Today about fifty Dutch soldiers in uniform are in
the gallery, but it is the group of Milosevic's Belgrade legal
"associates" who catch nearly everyone's attention. This includes three
women who remind me of Charlie's Angels. C-061, like all protected
witnesses, is completely screened off from the gallery. The glass wall
separating the courtroom from the gallery has an accordionlike screen
divided into three sections that extends the entire length of the room.
Although the central section is lowered to block all view of protected
witnesses, the other two are not. Accordingly, even when the court goes
into "closed session" and the feed of microphones, translations, and
cameras is turned off, you can still see most of what is happening.
21
Uertz-Retzlaff has
decided to use C-061 to identify the voices on a series of some fifty
intercepted cellular-phone conversations that the OTP is offering as
evidence of Milosevic's personal involvement in events. Of them all, it
is conversations between Milosevic and Radovan Karadzic, the long-term
leader of the breakaway Bosnian Serb republic, who is under indictment
and still at large, about which anticipation is keenest. Since Witness
C-061 was not a participant in the calls, was not physically present to
overhear them when they took place, and was not the person who recorded
them, the Milosevic amici have raised objections, and the court has
invited each of the parties to orally amplify their various prior
written "submissions" about the admissibility of the intercepts. After
a Ms. Higgins speaks on behalf of the amici, it is Milosevic's turn. He
contends in forceful terms that the intercepts were illegally obtained
and perhaps subsequently doctored, then asks how the witness can
possibly "confirm the authenticity of conversations between me and a
third person." Nice, however, has the final word. He argues that, as a
general matter, it makes better sense for evidence under challenge in
this way to be "provisionally admitted" when it is clear that
more evidence will be forthcoming by which the first piece of evidence
can be properly weighed and its admissibility and value assessed.
When the trial resumes
after a twenty minute recess (taken so that the members of the bench
can discuss in chambers how they will proceed), Judge May announces that
the court deems the intercept recordings admissible on "a prima facie"
basis, but stresses that at a later time the OTP will have to submit
further evidence about the circumstances under which the recordings
were made. The court seems to be conceding, at least tacitly, that it
may have to face the question of to what extent the initial "legality"
of what is essentially a wiretap during conditions of conflict or war
should be a factor in either admitting such evidence in the first place
or assessing its reliability or "weight" once admitted. 22
Unfortunately for the
gallery, it soon becomes clear that Uertz-Retzlaff does not propose to
play the tapes in their entirety in open court, since, she explains,
"that would take approximately two days." Instead, she suggests that it
would be more expeditious to play just enough of several tapes so that
the voices can be identified; and that instead of having the witness
listen to each intercept – something he has obviously already done –
she will submit a written "declaration" made by C-061 in the course of
his prior two-day listening session. This she requests be placed "under
seal," which is to say, not as part of the public record.
Unfortunately for
Uertz-Retzlaff, nothing proceeds smoothly. The "index of intercepts"
she has prepared to "assist" the bench is for some minutes a source of
confusion, and once she is allowed to begin playing the first tape, the
sound quality is so poor that Witness C-061 complains about the
"interference in the headphones." I glance at Milosevic, who seems
thoroughly pleased by her discomfort.
The short excerpt that
is played proves to be fairly dull; it sounds like any conversation
between two political leaders who, wary of being overheard, have learned
to express their thoughts in a language that is on its face pointedly
unobjectionable.
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Notes
1
As the American, British, French, and Russian architects of the famous
Nazi war-crimes trials held at Nuremberg in 1945 discovered, the common
law's "adversarial" tradition is not easily reconciled with the
"inquisitorial" (or investigative) approach of traditional civil law, and
conducting trials in which judges, prosecutors, and defendants come from
different countries (or legal cultures) poses a host of difficulties.
Nevertheless, there are some thirteen elements to trial
fairness about which there is a measure of consensus, and being afforded
the choice to defend yourself when a trial is essentially adversarial in
nature is almost universally recognized. Among the other twelve (often
expressed in the language of "fundamental human rights") there is at least
some agreement that to be "fair": (1) a trial should presume the defendant
is innocent and treat him accordingly; (2) the trial should be limited in
its subject matter by an indictment that clearly sets out the charges
against the defendant and specifically spells out both what conduct of his
was criminal and what laws were thereby broken; (3) the defendant should
have the opportunity to be present at the proceedings; (4) his trial
should be conducted in public; (5) he should be allowed a lawyer of his
own choice or provided competent appointed counsel if he cannot afford to
retain one (and all their dealings should be regarded as privileged, with
reasonable provision made for them to consult regularly throughout the
trial); (6) the defendant should neither be compelled to testify against
himself nor be coerced to confess prior to trial, but he must have an
opportunity to testify on his own behalf if he chooses to do so; (7) he
must be afforded the opportunity to confront and question witnesses
against him; (8) the court must ensure that some "equality of arms" exists
between the defendant's side and those prosecuting his case (in, for
example, their general level of resources and the time each side is
given); (9) the prosecution must provide the defense any exculpatory
evidence they discover in the course of their investigation or find
afterward to be in their possession; and (10), as a general matter, the
evidence against the defendant must have been obtained in a lawful manner,
given the circumstances of the case. After the trial is held, ( 11) the
judgment of the trial court must be written and must set out specifically
the facts and laws on which the court reached its conclusions; and,
finally (12), after the judgment is entered (or when necessary or useful
during the course of trial), provision must be made for appeal to a higher
court that is competent to address whatever legal issues the case may
implicate. As it happens, probably the most controversial topic in the
debate about trial fairness is whether to use a jury. My own view is that
in the context of very lengthy, complex cases, especially those that turn
on numerous difficult legal issues that involve little settled prior
precedent, the arguments against juries are compelling. Similarly, that
criminal trials be "speedy," another sacred idea, makes far less sense
when both sides will require months of preparation to be effective in
dealing with cases that are likely to involve hundreds of witnesses,
many thousands of pages of documents, and relatively untried areas of law.
2 Although Milosevic is acting pro se, he is
not unaided. Before the trial started, the prosecutors and the trial
judges assumed that Milosevic might very well sit mutely at his table
throughout the proceedings, a not unreasonable assumption given his early
statements that he regarded the court as "illegal." In their
determination that all relevant legal issues would be forcibly raised on
his behalf during the course of the proceedings, the trial chambers
appointed three seasoned attorneys (a British barrister, a Dutch
attorney who had tried several prior cases at the Hague, and a Yugoslavian
well acquainted with the complicated facts and politics of Yugoslavia's
war years). Nominally, the three were designated as amici curiae – or
friends of the court – who were expected to "assist" the court during the
trial, but in fact they have functioned, albeit with a measure of
restraint due to Milosevic's very active daily participation, as advocates
wholly on the side of the accused, and not as disinterested expert
advisers. In addition, Milosevic has two prominent Belgrade trial
attorneys designated as his "associates," with whom he evidently consults
after trial on a daily basis. Backed by their law firm's staff and, some
claim, sympathetic souls within the current Belgrade government's security
services, they prepare dossiers on prosecution witnesses, carefully sift
through the vast quantity of discovery materials supplied by the Office of
the Prosecutor, find news items relevant to events, and, some journalists
guess, also consult high-level Serb military and political figures with
personal knowledge of the particulars of a witness's testimony.
Nonetheless, Milosevic sits by himself at the defendant's table, and it is
likely he is purposefully trying to convey the impression that he is
acting entirely on his own, overmatched by the overwhelming resources of
what he calls "the Other Side." This tactic, of course, plays very nicely
into the Serb myth of the hero – stubborn, indomitable, and courageous,
particularly when faced with certain doom.
3 "Evidence," strictly speaking, is confined to the
testimony of witnesses under oath and documents introduced at trial to
the fact finder, whether judge or jury. The comments made by an advocate
in the course of trial are not "evidence" but are instead meant to be
regarded as no more than how a party to a proceeding would like the fact
finder to interpret the data presented. But in a recent order issued by
the Milosevic tribunal – ostensibly concerned only with procedure and the
mechanics of the defendant's upcoming presentation of his side of the
case-the court warned him that comments he might make in his advocate's
capacity concerning "facts" of the case would be "considered." What
exactly this means is, as yet, very much an open question.
4 International
Humanitarian Law, or IHL, suggests that the conduct of conflict of any
kind is of vital concern to us all, regardless of who is involved or where
it occurs. Many of those who work in IHL believe that the twentieth
century was by far the most brutal in recorded history, and feel that the
record of crimes committed by governments against civilians provides
strong evidence that IHL has been consistently violated "with
impunity" from its genesis in the mid-nineteenth century, when Europe's
Great Powers began to create rules and to write treaties in hopes of
making war more humane. Many advocates of IHL believe that it will
never be "law" until well-funded international institutions exist to
investigate, apprehend, and try those who commit major IHL crimes.
Critics of this vision, however, tend to dismiss IHL as being as
unrealistic as disarmament efforts before and after World War I or the
various attempts to declare war itself "unlawful." Regardless of your own
point of view on what is "law," you can be sure that the legal advisers to
armies and political leaders in the developed nations of the world are
going to be very careful readers of the Tribunal's jurisprudence for some
time to come.
5 The question of where or how IHL crimes ought to be
tried has long been a subject of debate. When the U.N. was first created
following the Second World War, it had been hoped that a permanent
criminal court could be established to carryon the legacy of the
war-crimes trials at Nuremberg. Such a court, it was thought, would be
the first step in creating "an enforcement mechanism" for a comprehensive
legal scheme to protect civilians in future from both the threat of
"total" war and any systematic domestic campaign of persecution. By 1993
this planned court had been stalled in obscure U.N. committees for a
little more than four decades, and the idea of setting up ad hoc forums
by using the Security Council's emergency powers was regarded as the only
way of cutting through the unavoidable red tape that pursuing the matter
in the General Assembly would have involved. A version of the original
U.N. plan, although no longer technically under the umbrella of U.N.
operations, has at last been realized in the International Criminal
Court, or ICC, created by a multinational treaty concluded in Rome in
1998. This treaty was ratified in record time, and the ICC currently has
ninety-two state parties, the United States conspicuously not among
them. Last spring the ICC appointed its first eighteen judges, and last
summer it swore in its first prosecutor and registrar.
6 The term "Genocide" was coined in the 1940s by one
Raphael Lemkin, a Polish legal crusader who lobbied tirelessly for what
became the U.N.'s 1948 Genocide Convention. The convention declared that
persecuting an ethnic or religious group with the object of destroying it
was subject to criminal punishment under during a time of conflict or
exclusively against a domestic population. The concept that "laws of
humanity and the dictates of the public conscience" applied to conduct
during conflict seems to have had its first formal recognition in the
preamble to The Hague Convention of 1907, "Respecting the Laws and
Customs of War on Land." The related term "Crimes Against Humanity" began
to gain currency during the Allies' discussions of the proposal, following
World War I, to try Germany's Kaiser Wilhelm before an international
tribunal of five judges for "a supreme offense
against international morality and the sanctity of treaties." "Grave
Breaches of the Geneva Conventions" were first defined in 1949 (in Article
147 of Convention IV), when, in the aftermath of World War II, the
treatment of civilians became an urgent concern among governments. These
breaches include, with qualifications, killing, torture (including
biological experimentation), deportation, confinement, compelling service
in the armed forces of a hostile power, taking hostages, the destruction
and appropriation of property, and depriving "a protected person" of the
right to a fair trial.
7 The term refers to legal principles that are
fundamental and well settled, and has come to mean what the law is rather
than what it should be. "Blackletter" derives from the custom of printing
medieval books in a heavy Gothic black type.
8 As anyone who remembers the Watergate scandal will
recall, the key questions were: What did Nixon know and when did he know
it? Obviously, when a superior explicitly orders a subordinate to commit a
crime, the matter of his guilt is fairly straightforward. But in many
situations common to criminal law and to civil liability as well, a
superior's culpability or vicarious liability is based on what he should
have reasonably done or known, regardless of what he did do or did know.
In consequence, he may be held responsible for what a subordinate does
that is ultra vires – beyond his power – and what, at least nominally, he
has expressly forbidden that subordinate to do. Although many legal
cultures speak of "facts" and "law" as existing at a remove from each
other, important questions can turn on their interrelation. If, in the
Milosevic case, the trial court determines that he personally directed a
decade of "ethnic cleansing" campaigns, the legal implications of the
court's decision may well prove much less far-reaching than if a
conviction turns primarily on the idea that either (1) he could have
stopped what was going on but failed to do so; or (2) regardless of what
he actually ordered or wished, he should be held personally and
criminally accountable because he possessed ultimate formal (de jure) or
actual (de facto) "command responsibility" for the acts of organized
armed forces that he and his government supported and "controlled" in only
a general way. Such an outcome would be a source of considerable anxiety
to almost every national leader on earth.
9 The main thrust of Tadic's strategy was simple
alibi, and he contended throughout his trial that prosecution witnesses
had wrongly identified him, or that he was never present at any of the
crimes they described.
Following the Tadic trial, both sides appealed. The Appellate
Chamber's decision is especially significant in its discussion of whether
the conflict in Bosnia was "internal" or "international" for purposes of
determining the application of the 1949 Geneva Conventions' "Grave
Breaches" provisions. The trial court had decided that the conflict was
"international" up until May 1992 and "internal" thereafter. This
conclusion was premised on Belgrade's formal "withdrawal" of its armed
forces, the JNA, from Bosnia in response to an ultimatum issued by the
U.N. Security Council. The withdrawal, however, took place mainly on paper
and consisted of dividing the JNA into a Serbian "VJ" and a legally
distinct Bosnian Serb "VRS" army. In reality, the men and the weapons
Belgrade had sent to Bosnia remained, and virtually the only change was
one of name and uniform.
10 Each year, one task
of the Tribunal's president – a judge, elected, for a two-year term,
by his or her peers – is to write an annual report addressed to both the
U.N. Security Council and the General Assembly. Reports from the
Tribunal's early years in operation are instructive, and the first
year's report especially is both candid and surprisingly plaintive. The
Security Council's commitment to making the Tribunal a robust entity
with a staff and resources adequate to perform its job appears, in
retrospect, to have been decidedly halfhearted. Initially, the
Tribunal was funded in six-month cycles, with an initial start-up
commitment of just $5.6 million for the January to June 1994 period.
Evidently, the choice of a six-month fiscal period had the unfortunate
consequence of preventing the Tribunal from signing a lease on
property for a headquarters and proved a serious impediment to
recruitment, since no contract for more than half a year could be
promised to anyone. By the Tribunal's second year, much of this had been
sorted out, and its overall funding had been increased to more than $25
million a year, with authorization for some 260 posts. But initially,
the charity of a number of states making "voluntary contributions" had
been crucial. The United States supplied the Office of the Prosecutor
with a $2.3 million computer system and temporarily reassigned
twenty-two professional staff members to work without salary from the
Tribunal for up to two years. Other nations joined in with similar
offers of voluntary staff and gifts in kind, while some, including
Malaysia and Pakistan, which both had judges appointed to serve at the
Tribunal, sent cash (in the amounts of $2 million and $1 million,
respectively). At present, the Tribunal's annual budget is in the region
of $125 million a year, a very significant share of the U.N.'s
non-peacekeeping expenditure. And the Tribunal's staff has grown to some
1,300, who come from eighty-three different U.N. member states.
11 Much has been written of late about bringing
Hussein and his top lieutenants to trial as "war criminals," presuming of
course they are captured alive. Those who have some say in the matter
would do well to study the Milosevic proceedings. The several years of
both direct and indirect preparation involved in, for example, marshaling
adequate admissible evidence and finding witnesses is but one- issue.
Others include whose notion of a "fair" trial will prevail, and whether
the trial is to deal with almost twenty-five years of International
Humanitarian Law and human-rights abuses or ought to be a brief proceeding
limited in its scope. If the latter, victims' families are certain to
raise passionate objections. A trial of broad scope, on the other hand,
would undoubtedly drag on for several years. And it is quite easy to
imagine that much would be made of active U.S. support of Hussein's regime
during the country's conflict with Iran, that the "legality" of the United
States invasion would be vigorously contested by the defendant(s), and
that every effort possible would be made to play to the region's
anti-American audience, portraying Hussein as both a martyr struggling to
defend Islam from the West and something of a pawn, turned upon and
betrayed by his former ally, the United States. Doubtless, too, some
attempt would be made not only to portray the current Bush agenda for the
Middle East in a sinister light but also to implicate the United States
during the period prior to Iraq's invasion of Kuwait, perhaps even in the
role of an accomplice that supplied and trained Hussein's armed forces
while turning a blind eye to IHL crimes they were fully aware of and might
have done something to prevent.
12 The Peace Palace fulfills the Victorian era's canon
that it is always a good idea to decorate the decoration. The building,
which was inaugurated with great fanfare on August 28, 1913, required
almost ten years to complete and was to be the seat of the Permanent Court
of Arbitration, which was created under the auspices of The Hague Peace
Conference of 1899 and its Hague Convention I, "For the Pacific Settlement
of International Disputes." The building's costs were paid in their
entirety by the Scottish-American steel magnate turned philanthropist
Andrew Carnegie, who had an unshakable faith in what was once termed
"progress" and believed the inexorable path of humanity toward perfection
was as incontestably part of the scheme of things as Darwin's law of
natural selection. Peace was Carnegie's great cause in his later years,
and the "Temple of Peace" at The Hague was only one of three he managed to
complete before the outbreak of World War I's hostilities suggested that
progress toward perfection might not be quite so inexorable as all that.
13 To give one example, the International Military
Tribunal for the Far East, as it was' called, was made up of eleven
judges, drawn from each of the countries involved in that theater of
conflict. It was a complex case brought against twenty-eight high-ranking
Japanese defendants, and the proceeding, described at the time as "the
biggest trial in recorded history," lasted from April 1946 until November
1948. Since the judges were not required to attend the proceedings on a
daily basis (and many chose not to, even for weeks at a stretch), the
Tribunal's rulings on crucial questions like the admissibility of evidence
demonstrably varied from day to day, depending entirely on which judges
were or were not present. In the end, five of the eleven judges
wrote dissenting or partially dissenting opinions. Astonishingly, the
Tokyo judgment remained unpublished until 1977 (when it appeared in an
Amsterdam university press monograph). Prior to 1977, the majority opinion
and five dissents could be read only by seeking out a handful of surviving
stenciled copies.
14 At present, the expectation is that the Tribunal
will not wind up its affairs before 2012. If its present docket and annual
budget are projected forward, it is not unreasonable to guess that at the
end of its eighteen years in existence the Tribunal will have tried
approximately 100 cases at a total cost of more than $1.5 billion. This
figure provides at least some sense of the scale and cost of what it is
possible for an international criminal tribunal to do. Today the
prevailing view among prosecutors and others with whom I've spoken is that
before indictments are sought it is essential to understand a conflict as
a whole and only then to target those who have played the largest part or
most crucial roles in events. To deal with the many thousands of other
potential defendants, rebuilding, or helping to create, smoothly
functioning domestic courts is an essential task that must be part of the
larger picture with which the international community is concerned.
15 In addition to the live broadcast feed to the
Internet, there is a daily archive of the feed compiled by Bard College
that can be readily accessed by the public, and at least one U.S.
university is compiling video archives of all the Tribunal proceedings.
Roughly a dozen journalists regularly use the press room in the Tribunal
building, the majority of whom are from dailies of the former Yugoslavia.
16 In terms of the typical relationship between trial
courts and courts of appeal (which are charged with deciding, among other
matters, if the trial below was conducted fairly), the trial court's
opportunity to assess demeanor is often key. For example, in the federal
court system of the United States, and in most state courts as well,
except in the most unusual circumstances (or when confronted by the most
blatant sort of error), appellate courts defer completely to whatever
"facts" the trial court has determined. Part of the basis of this policy,
as it is routinely justified, is that trial judges have actually seen and
heard the witnesses, and transcripts can never adequately convey enough
about the person on the stand for anyone who wasn't present to confidently
second-guess those who were.
17 Whether and in
what ways this matters is a question that goes to the root of how IHL
trials are or should be different from garden-variety criminal ones. If
the goal is, as it was at Nuremberg, to assemble a somewhat complete
historic record of events, create a comprehensive documentary archive for
posterity, and vindicate the stories of survivors and victims that had
seemed too horrible to be plausible, then strict time limits are a major
failing. If the idea is primarily, as one seasoned American ICTY
prosecutor phrased it, "to get the bad guy," then a conviction on one
count, which results in a life sentence, is as good as a conviction for
sixty-six counts.
18 "Bibs" and
robes are required for counsel making court appearances. To buy, bibs cost
an astonishing 450 euros but may be rented from the Tribunal at 150 euros
a month (with an option to purchase).
19 In major American criminal trials, in contrast to
British practice, prosecution witnesses typically undergo extensive
"preparation," or rehearsal, so that there will be few surprises when they
testify, both on direct examination and subsequent cross-examination. The
OTP does not seem to have a clear policy on whether such preparation is
important, in accordance with the American view, or wholly improper, in
line with British thinking. What is clear is that in most trials at the
ICTY, at least some of the live witnesses either have not been entirely
candid about themselves with the lawyers who have called them to testify
or have changed their stories in unexpected ways from an earlier version.
To a certain extent, even in legal systems where trial preparation is
extensive, this is a problem that a seasoned trial attorney must allow
for. But at the Hague, three factors aggravate the situation. First, the
problem of witness intimidation has not been wholly solved by the ICTY's
efforts at witness protection; second, the OTP, and often defense teams
too (particularly that assisting Milosevic), have become remarkably
skillful at rapidly assembling detailed personal dossiers about witnesses
that frequently contain unflattering information useful to undermining
"credibility" on cross-examination; and third, given the horrific events
involved, and the fact that many who have lived to tell their tale were
not disinterested bystanders, Tribunal trial judges often have the
unenviable task of deciding how much to accept the truthfulness of a
witness who is plainly lying about, or at the least minimizing, his own
role. These problems are important to note, especially in the context of
the ICTY's debate over using written statements as a time-saving
alternative to live testimony.
20 A visit to SlobodanMilosevic.org, which offers a
daily summary of the trial, is instructive. For example, their view of a
recent day of "crime-based" testimony attacks May as being both unfair and
incompetent: "After President Milosevic had explained, to this pathetic
excuse of a 'judge,' the concept of 'innocent until proven guilty,' which
appears to be completely foreign to 'Dick' May, Mr. Tapuskovic [one of the
trial's amici] had to explain to this idiot what his job was in the first
place. Mr. Tapuskovic explained to that crimson robe-wearing fool that as
a judge his job is to sit and listen to the evidence and then decide,
after hearing all of the evidence, if the witness is telling the truth or
not."
21
In the United
States, allowing cameras into courtrooms has fired contentious debate
since the rise of television and the advent of modem mass media in the
1950s. One scholar I spoke to, who has watched the Tribunal with interest
since its founding, felt strongly that cameras in courtrooms profoundly
affect proceedings. His view is that when people know there is a camera
present, they can't help but perform. There may be some truth to this. I
have difficulty, however, discerning much difference between the effect of
the presence of cameras and that of what might be called "a live studio
audience."
22
In common law, in a criminal trial before a jury, the submission
of evidence follows strict rules. In a U.S. criminal trial, the
Fourth Amendment prohibition against "unreasonable searches and seizures"
can be of crucial importance, and the twentieth-century judicial
enforcement mechanism by which evidence can be excluded from consideration
if obtained by prosecutors illegally is popularly known as the "fruits of
the poison tree" doctrine. Accordingly, in a U.S. trial where wiretap
evidence is offered, an able defense lawyer typically hones in on the
question of where, how, by whom, and under what legitimating authority
recorded intercepts of a defendant's telephone conversations were
obtained.
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