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The International Criminal Tribunal for the Former Yugoslavia and the Reluctant Witness

Published online by Cambridge University Press:  17 January 2008

Françoise J. Hampson
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Extract

Three are many reasons why a person may be reluctant to appear before a court as a witness. This article concerns the ability of the International Criminal Tribunal for the Former Yugoslavia to compel witnesses to attend and also to answer questions when they are before the Tribunal. This second issue is more accurately represented as an ability to impose a sanction for the refusal to answer a question. This in turn raises the important question whether there are circumstances in which an individual may legitimately (i.e. without sanction) refuse to answer.

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Article
Information
International & Comparative Law Quarterly , Volume 47 , Issue 1 , January 1998 , pp. 50 - 74
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. For documentary material on the establishment of the International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY), see Virginia, Morris and Scharf, Michael P., An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995, 2 vols).Google Scholar For a commentary on the rules applicable to the operation of the ICTY, see Bassiouni, M. Cherif and Peter, Manikas, The Law of the International Criminal Tribunal for the former Yugoslavia (1996).Google ScholarSee generally Karine Lescure and Florence Trintignac, International Justice for Former Yugoslavia (1996).Google Scholar

2. The refusal to answer a question is sometimes represented as “the right to silence”.This is something of a misnomer. Nobody can compel someone to speak. The central issue is whether any inferences can or cannot be drawn from the refusal to answer a question. The right of the accused to remain silent is contained in r.42( A) of the Rules of Procedure (infra n.4). This article is dealing with the right of witnesses.

3. E.g. Kostovski v. Netherlands, Eur.Ct H.R., Series A, No.166; Windisch v. Austria, Eur.Ct H.R., Series A, No.186;Lüdi v. switzerland, Eur.Ct H.R., Series A, No.238.

4. Rules of Procedure, IT/32/Rev.8, 23 Apr. 1996, rr.34 and 96; see also rr.69 and 75. A Victims and Witnesses Unit has been established within the Registry but it is not yet functioning as originally envisaged; 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. Yearbook 1994, pp.37–38, 102Google Scholar; Lescure and Trintignac, op. cit. supra n.1, at pp.51–57.Google ScholarSee generally Proposal of the International Women's Human Rights Law Clinic, Morris, and Scharf, , op. cit. supra n.1, at Vol.2, p.611Google Scholar; Christine, Chinkin, “Rape and Sexual Abuse of Women in International Law” (1994) 5 Eur.J.I.L. 326.Google Scholar

5. Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Decision of the Trial Chamber, Prosecutor v. Duško Tadić, a.k.a. “Dule”, 10 Aug. 1995, Case IT–94–1–T.Google Scholar

6. The rules of evidence will be for any such permanent international criminal tribunal to elaborate and adopt They are therefore not the primary subject of concern in the current deliberations within the UN on the establishment of such a tribunal.

7. Members of the ICTY are aware both of its unique character and also of its possibly being a prototype of a permanent international criminal tribunal; see the address of the President of the ICTY to the UN General Assembly, 14 11 1994, Yearbook, op. cit. supra n.4, at pp.134–143.Google Scholar

8. International Conference for the Protection of War Victims, Geneva, 30 08.–1 09. 1993. IRRC, No.296, 09.–10. 1993, pp.359–445.Google Scholar

9. Follow-up to the International Conference for the Protection of War Victims, IRRC, No.302, 09–10 1994, pp.411–449Google Scholar; No.304, 01.–02. 1995, pp.4–38.Google Scholar

10. Telford, Taylor, The Anatomy of the Nuremberg Trials (1992)Google Scholar; Ann, Tusa and John, Tusa, The Nuremberg Trial (1983).Google Scholar

11. E.g. Annual Report of the ICTY, Summary, Yearbook, op. cit. supra n.4, at pp.88–89.Google Scholar

12. This is a problem of which the first Prosecutor, Judge Richard Goldstone, was acutely aware, as reflected in his speeches. It probably contributed to the apparent policy of bringing proceedings against individual fighters and commanders at every level. A major problem for the ICTY is the lack of co-operation from the parties to the conflict, most notably the Serbs and the Croats and above all the Bosnian Serbs, with regard to the transfer of indicted suspects. Whilst certain political and military leaders have been indicted and the indictments have been confirmed in r.61 proceedings, very few of them are currently awaiting trial in The Hague. The most notable absentees are Radovan Karadžić and Ratko Mladć. Trials in absentia are excluded.

13. E.g. Harris, D. J., O'Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights (1995)Google Scholar; Dominic, McGoldrick, The Human Rights Committee (1994).Google Scholar

14. The “grave breach” provisions of the Geneva Conventions of 1949 on the protection of the victims of war are framed so as to be applicable only in relation to the class of victims protected by the particular Convention. That is defined in such a way as to mean that the “grave breach” provisions are applicable only in international armed conflicts. That, in turn, requires that the conflict be between the forces of two or more States. There is not only the issue of recognition of Statehood but also the factual question concerning under whose control forces are acting and the extent and nature of external support for indigenous fighters. See generally Interim Report of the Commission of Experts, UN Dot.S/25274, Feb. (1993), paras.36–46.Google Scholar See also Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Decision of the Appeals Chamber in Prosecutor v. Duško Tadić, a.k.a. “Dule”, 2 Oct. 1995, Case IT–94–1–AR72Google Scholar and Opinion and Judgment of the Trial Chamber in Prosecutor v. Duško Tadić, a.k.a; “Dule”, 7 May 1997, Case IT–941–TGoogle Scholar, in which the majority. Judge McDonald dissenting, were of the view that, at the material time, the conflict was non-international (para.607). The decision is currently subject to appeal and cross-appeal. For texts of Geneva Conventions of 1949 and other humanitarian law treaties see Adam, Roberts and Richard, Guelff, Documents on the Laws of War (2nd edn, 1989). James Gow, a British academic and specialist on security questions in the Balkans, has given such evidence in the proceedings against Tadić.Google Scholar

15. See e.g. individual studies by or on behalf of the Commission of Experts on the battle plan for Dubrovnic and Sarajevo and the investigation into the Medać pocket incident.

16. E.g. the commanders of national contingents of UNPROFOR had to have dealings with the local commanders; e.g. Lt.Col. Bob Stewart, Broken Lives (1993).Google Scholar

17. See infra nn.57–58 and accompanying text.

18. The State could find itself implicated by the evidence of its armed forces where that revealed criminal conduct, conduct in breach of the mandate or of the applicable norms, including human rights law. Questions have arisen, e.g., about the conduct of various contingents in the operation in Somalia; see generally Françoise, Hampson “States' Military Operations Authorised by the United Nations and International Humanitarian Law”, in Condorelli, L. (Ed.), The United Nations and International Humanitarian Law (1996), pp.371–426. A State could find itself with a different dilemma where it was required to produce evidence which, it claimed, would prejudice its legitimate national security concerns; see Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Decision of the Trial Chamber in Prosecutor v. Tihomir Blaškić, 18 July 1997, Case IT–95–14–PT. The Trial Chamber ruled (para. 150) that “it has the authority and power to issue orders to States and individuals, including high government officials, for the production of documents required for the preparation or conduct of a trial… [T]here is a dear obligation on both States and their officials to comply fully with their terms. Any objection to an order for the production of documents, including a claim that a State's national security interests could be threatened by disclosure, does not automatically excuse the State or individual from compliance. Rather such claims must first be assessed by the relevant Trial Chamber.” The subpoena was reinstated. The decision is currently under appeal. The issue of appropriate remedies for non-compliance with such orders is not discussed, being “not yet ripe for consideration” (idem, para.1). One possible remedy would be a finding of contempt in the case of an individual; see text at infra Part IV.Google Scholar

19. S/RES/827 (1993), 25 05 1993Google Scholar, Morris, and Scharf, , op. cit. supra n.1, at Vol.2, pp.177–208.Google Scholar

20. Idem, Vol.1, pp.311–313.

21. Statute of the Tribunal, Art.29.2, Ibid.

22. National legislation may be required to give effect to such an obligation: Bassiouni and Manikas. op. cit. supra n.1, at p.910; see infra n 30.Google Scholar

23. Extradition is normally used to refer only to transfers between States, normally under bilateral or multilateral treaty arrangements. It is common for civil law jurisdictions to refuse to extradite nationals. It would seem more appropriate to regard the transfers envisaged by the Statute as sui generis. See generally Bassiouni and Manikas, idem, pp.782, 787.

24. Rules of Procedure, supra n.4, r.55(A).

25. Idem, r.55(B); Morris, and Scharf, , op. cit. supra n.1, at Vol.1, pp.312–313.Google Scholar

26. Rules of Procedure, idem, r.90 bis, introduced in 1995.

27. The commentaries, supra n. 1, tend to focus on the transfer of the accused rather than that of witnesses.

28. Rules of Procedure, supra n.4, r.59(A).

29. Idem, r.59(B).

30. Colin, Warbrick, “Co-operation with the International Criminal Tribunal for Yugoslavia” (1996) 45 I.C.L.Q. 947–954. Art.19 of the United Nations (International Tribunal) (Former Yugoslavia) Order 1996, S.I.1996 No.716, provides for the service of a summons from the ICTY to a witness. It imposes an obligation to comply with the summons, failing which a court may, at the ICTY's request, order that the person be arrested and delivered up to the ICTY under Art.9 of the Order.Google Scholar

31. Bassiouni and Manikas, op. cit. supra n.1, at pp.940–941.Google Scholar

32. Rules of Procedure, supra n.4, r.77(B). It is understood that witness L refused to answer questions put to him by the defence. He does not, however, appear to have been sanctioned for his refusal.

33. See Decision on Prosecution Motion for Production of Defence Witness Statements. Decision of Trial Chamber in Prosecutor v. Duško Tadić, a.k.a. “Dule”. 27 Nov. 1996, Case IT–94–1–TGoogle Scholar, in which the Trial Chamber ruled. Judge McDonald dissenting, that defence witness statements were covered by legal professional privilege.

34. This was confirmed, in the case of medical confidentiality, by the Belgian Supreme Court Alexandre Faite, Crimes in Times of Armed Conflicts: the Problem of Testimony in Court of Humanitarian Organisations, L.L.M. Dissertation, University of Essex, unpublished, p.26.Google Scholar

35. Cass, 15 03 1948, Pas 1948, p.169Google Scholar, cited in Faite, idem, p.27; see also Franchimont, M., Cours de Procédure Pénale, Vol.1 (1984), p.262.Google Scholar

36. Sir Rupert, Cross and Tapper, C., Cross on Evidence (7th edn, 1990). p.416Google Scholar; BSC v. Granada Television [1981] 1 All E.R. 417, 457 (per Lord Wilberforce).Google Scholar

37. Formerly known as “Crown privilege”, it now appears to be broader in scope and not confined to the Crown. Unlike privilege, it is not subject to waiver.

38. [1978] A.C. 171.Google Scholar

39. E.g. in the Matrix Churchill trial, the accused employees sought disclosure of documents. Government ministers signed public interest immunity certificates. The judge examined some of the material and ordered disclosure of certain documents, which established the contention of the accused that government departments knew of their contacts and contract with Iraq. The ensuing scandal led to the setting up of the Scott Inquiry. See McCoubrey, H. and Hampson, F. J.. “Evidence in Cases invoJving Proliferation Issues”, in Julie, Dahlitz (Ed), Future Legal Restraints in Arms Proliferation (1996), pp.273–295.Google Scholar

40. The medical code of ethics is recognised by doctors worldwide. Whilst the code of ethics is. to some extent, recognised in most domestic jurisdictions, particular difficulties arise in relation to the disclosure of information. See generally Françoise, Hampson. “Conscience in Conflict: the Doctor's Dilemma” (1989) XXVII Can.Y.B.I.L. 203–225.Google Scholar

41. Roberts and Guelff. op. cit. supra n.14.

42. Hampson. op. cit. supra n.40.

43. Harding, T. W.. “La Contribution de l'expert-psychiatre à la procédure d'interdiction”. Revue du droit de tutelle, Suisse (1987), p.19.Google Scholarcited in Faite, op. cit. supra n.34, at pp.31–32.Google Scholar

44. Rules of Procedure, supra n.4, r.89(B); the “spirit of the Statute” includes Art.21. which is clearly based on the language in international human rights treaty texts on due process guarantees. See also Press Release on the Preliminary Motion for Protective Measures for Victims and Witnesses in the Tadić Case, Case No.IT–94–1–T—CC/P10/015–E,10 Aug. 1995, in which the Trial Chamber spoke of the need to achieve a balance between competing interests having regard to the jurisprudence of other judicial bodies, such as the European Court of Human Rights.

45. E.g. L. v. Switzerland (Application No.12609/86) 64 D.&R. 84.

46. Faite, op. cit. supra n.4, at pp.17–19, 23–25.Google Scholar

47. Rules of Procedure, supra n.4, r.70(B). Morris, and Scharf, , op. cit. supra n.1, at Vol.1, p 357 suggest that this “new provision accomplishes the fundamental objective of the one proposed by the United States, while avoiding the concerns raised by that proposal”. It appears likely that concerns of IGOs such as UNHCR also played a part in the elaboration of the rule.Google Scholar

48. Rules of Procedure, idem, r.70(C).

49. Idem, r.70(D).

50. BBC Radio 4, “Medium Wave”, 12 May 1996; Ed Vulliamy gave evidence in the Tadić trial.

51. E.g. Helsinki Watch, War Crimes in Bosnia-Hercegovina (1992), Vol.2 (1993).Google Scholar The evidence suggests that, in some cases, journalists were intentionally targeted: idem, Vol.1. pp.121–131. See also, Martin, Bell, In Harm's Way (1996).Google Scholar

52. Protocol I of 1977. Additional to the Geneva Conventions of 1949, Art.79; Roberts, and Guelff, , op. cit. supra n.14, at p.435.Google Scholar

53. “Protection of journalistic sources is one of the basic conditions of press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms … Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest”: Goodwin v. UK. Eur.Ct H.R. judgment of 27 Mar. 1996, para.39.Google Scholar

54. E.g. Sweden; information provided by Professor C. K. Boyle.

55. Certain other ad hoc reports have been published, such as that of the Warburton Commission for the OSCE.

56. On the general exclusion of locally recruited staff See Kelsen, H., The Law of the United Nations (1951). p.314. n.1.Google Scholar

57. Final Report of the United Nations Commission of Experts Established Pursuant to Security Countil Resolution 780 (1992). S/1994/674/Add.2 (Vol.1). Annex V. the Prijedor Report.Google Scholar

58. Transcript of the Tadić trial, 20 05 1996. pp.583–600.Google Scholar

59. For the shift in emphasis in the work of UNHCR, see UNHCR, State of the World's Refugees: In Search of Solutions (1995). It raises the question whether this represents a shift away from a specialist organisation dealing with the protection of refugees to an organisation co-ordinating and distributing relief to displaced persons.Google Scholar

60. Hampson, , op. cit. supra n.18, at p.402.Google Scholar

61. African Rights, Humanitarianism Unbound, Discussion Paper. No.5, Nov. 1994.

62. McCoubrey and Hampson, op. cit. supra n.39.

63. Faite, op. cit. supra n.34.

64. Text accompanying supra n.43.

65. Faite, op. cit. supra n.34.

66. Supra nn.40 and 41 and accompanying text. States recognise the principle even within their own armed forces. It is not. however, without difficulties in practice, as was discovered by the Dutch medical contingent with Dutchbat in Srebrenica.

67. Marie-Thérèse Dutli and Christina Pellandini, “The International Committee of the Red Cross and the Implementation of a System to Repress Breaches of International Law”, IRRC. No.300. May–June 1994, p.250.Google Scholar

68. The Statute of the Movement of the Red Cross and the Red Crescent, adopted by consensus in 1986 by the XXVth International Conference, restates the fundamental principles of the movement and requires States to co-operate with the institution.

69. Supra n.67.

70. Such agreements exist with over 50 States. The agreements are usually with States where the ICRC is active. The ICRC is believed to be negotiating such agreements with certain Western European States. One may speculate as to any relationship between such a development and the possibility of proceedings in those States based on universal jurisdiction and arising out of armed conflicts where the ICRC has been present.

71. UN Charter, Arts.25 and 4.

72. Idem, Art.7.

73. Idem, Art.98.

74. Decision on the Defence Motion, supra n.14, at para.40.

75. Decision of Trial Chamber 1, Review of Indictment Pursuant to Rule 61, 11th July 1996, Radovan Karadžić and Ratko Mladić. Cases No.IT–95–5–R61 and IT–95–18–R61.

76. An organisation called Responsabilité Internationale has sought the lifting of the immunity of Boutros-Ghali and Akashi with a view to bringing civil proceedings against them for their part in the failure of UNPROFOR to protect the civilian population in the “safe areas” of Bosnia-Herzegovina: “Une Action en Justice à Genève contre Boutros Boutros Ghali et Yasushi Akashi”, Situation, No.28. Winter 1996–1997, p.47.Google Scholar