Abstract

The untimely death of Slobodan Milošević has brought into sharp focus the central challenge facing the judges of the International Criminal Tribunal for the former Yugoslavia: the length and complexity of trials, especially those involving high-level accused. The judges of the Tribunal have found themselves faced with the daunting task of how to change the existing procedures to be able to dispose of increasingly complex cases in a shorter period of time, while still respecting the right of the accused to a fair trial. The author focuses on three provisions of the Rules of Procedure and Evidence allowing ‘hybrid’ mechanisms between common-law and civil-law systems to speed up proceedings: (i) procedures for the admission of written statements and transcripts in lieu of oral testimony; (ii) judicial notice of facts adjudicated in previous cases before the Tribunal; and (iii) measures to reduce the size of cases, including allowing for the dropping of charges from an indictment to focus on more important or exemplary charges. All these mechanisms bear evidence of the ongoing process of ‘internationalization’ of criminal procedure. The author concludes that the task of speeding up trials requires a considerable amount of vision and mutual understanding on the part of the judges.

1. Introduction

It is no secret that the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’ or ‘Tribunal’), some 12 years after the start of proceedings in its first case, still has a great deal of work to do. In the words of former President Cassese, ‘the early prosecution strategy of starting with the prosecution of numerous low-level defendants flooded the Tribunal with minor cases and created a backlog of (relatively) petty defendants awaiting trial’.1 As time has progressed and peace has been restored to the former Yugoslavia, the Tribunal has come into custody of almost all of its senior-level indictees, and the Security Council has directed the Tribunal to shift its focus to these individuals.2 The length and complexity of trials involving such high-level accused was recently brought into sharp focus by the unfortunate and untimely death of Slobodan Milošević, whose trial had already been going on for 4 years. At present, there are 67 accused whose cases remain on the agenda of the Tribunal — including Karadžić, Mladić, and another four who remain at large — most of whom were of relatively high prominence in the political, military or police hierarchy at the time of the events in question.3

In response to dire predictions that the ICTY may not fulfil its mandate until 2016,4 the Security Council has called on the Tribunal to ‘take all possible measures’ to complete all trial work by 2008 and all appeal work by 2010, and has urged it to ‘plan and act accordingly’.5 As a result of this directive, and with mounting pressure from the Security Council, from member states and from the international community in the wake of Milošević's death, the judges of the Tribunal have found themselves faced with the daunting task of determining how to change the existing procedures to be able to dispose of increasingly complex cases in a shorter period of time, while still respecting to the highest degree the rights of the accused to a fair trial. One measure recently undertaken was the establishment, in February 2005, of a Working Group under the leadership of Judge Iain Bonomy — one of my former colleagues on the Milošević bench — to explore and suggest mechanisms for accomplishing the goal of expediting both pre-trial and trial proceedings. The Group released its report earlier this year with a number of helpful and innovative suggestions on how judges can make more robust use of the Rules of Procedure and Evidence (hereinafter ‘the Rules’) currently at their disposal.

My remarks today will focus on three provisions of the Rules — among the issues raised in the Bonomy Report — that have assisted, and with proper use, will continue to assist, in speeding up pre-trial and trial proceedings. All three are examples of what I call the ‘internationalization’ of criminal procedure, in that they combine different features of the common-law and civil-law systems in a unique hybrid fashion unknown to any domestic jurisdiction in the world. This new hybrid system cannot be explained solely from the perspective of one of the two systems, but must be seen in the light of both. Today, I will discuss a few examples of how hybrid mechanisms can be and have been used to speed up proceedings, including: (i) procedures for the admission of written statements and transcripts in lieu of oral testimony; (ii) judicial notice of facts adjudicated in previous cases before the Tribunal and (iii) measures to reduce the size of cases, including allowing for the dropping of charges from an indictment to focus on more important or exemplary charges.

2. Unique Challenges Presented by International Criminal Trials

I have already mentioned the central challenge facing the judges of the ICTY: the factual and legal complexity of the cases before the Tribunal, combined with rules, jurisprudence and practice that accord the full range of procedural rights to the accused, have resulted in pre-trial, trial and appellate proceedings that are notoriously lengthy. This holds true even with regard to cases involving accused charged with relatively few crimes committed in a relatively confined geographical area. Illustrative are two trials concluded in March and June of this year,6 each of which lasted longer than 2 years despite fairly limited crime bases and the absence of charges of participation in a joint criminal enterprise, arguably the most complicated of the forms of responsibility.

The increasing focus on ‘the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the … Tribunal’7 threatens to exacerbate the problem of lengthy trials and appeals, as the cases that remain involve high-level accused charged through many different forms of responsibility with larger and more sprawling crime bases. The case against Milošević was a prime example: he was charged with war crimes, crimes against humanity and genocide in 66 separate counts for events occurring in three different wars over a time period spanning nearly a decade. The three indictments charged him with these crimes through all the forms of responsibility, including superior responsibility and three different joint criminal enterprises (one for each war). As a result, it took a great deal of time for the prosecution to produce not only the crime-base evidence, but also the enormous amount of linkage evidence required, and it took a roughly equal amount of time for the accused to attempt to rebut this evidence. While the remaining cases before the Tribunal are admittedly not as large as that of Milošević, most future trials where several accused have been joined together in the same trial can still be expected to last well over a year and probably much longer.

A related challenge facing us is the repetition of the same crime-base evidence from trial to trial. As the factual bases for many cases at the Tribunal overlap, the same witness may be brought to The Hague on multiple occasions to give essentially the same evidence. An example of this is a witness-survivor of the events at Srebrenica in July 1995, who recently testified in my current trial, Popović and others. He has testified regarding these same events three times previously: in Krstić, in Blagojević and Jokić and in Milošević.

Yet another challenge of international criminal trials is figuring out how to make the hybrid common-law/civil-law system function and function well, in order to make the procedures more efficient while still guaranteeing the accused's right to a fair trial. As I hope will be illustrated in my discussion of written statements and adjudicated facts, this task requires a considerable amount of vision and mutual understanding on the part of judges from very different domestic backgrounds.

3. Written Statements (Rules 89(F) and 92bis)

The Tribunal began its life in 1994 with a system of criminal procedure intended to combine aspects of both the common-law and civil-law traditions. For example, although the Rules enshrine an adversarial method of presenting evidence, through live examination and cross-examination of witnesses,8 they also dispense with the need for a jury as the finder of fact, assigning this task instead to the trial judges themselves. Moreover, there is no rule barring the admission into evidence of hearsay statements, not even to prove the truth of the matters asserted in them; the jurisprudence from a very early stage has affirmed the admissibility of hearsay statements as long as they are probative and reliable.9 It is true that, in practice, the common-law adversarial model has predominated most aspects of the Tribunal's procedure: the production of witnesses and evidence is predominantly party-driven and, despite the deletion of an old rule stating that ‘witnesses shall, in principle, be heard directly by the Chambers’,10 most witnesses are still heard live. Nevertheless, as time has progressed the Tribunal has also adopted a number of essentially civil-law mechanisms for tendering and admitting evidence. This infusion of civil-law evidentiary principles into an essentially common-law framework is, in my view, a testament to the judges’ willingness to cooperate, to learn from one another and to recognize the utility and effectiveness of approaches taken in national legal systems other than their own.

While in my years at the Tribunal I have come to appreciate that the common-law adversarial model has many strengths, perhaps its greatest weakness is its tendency to produce lengthy and often irrelevant exchanges between the examining party and the witness. This problem has been compounded at the Tribunal by a number of factors — some of which I have already alluded to — that are generally absent in domestic jurisdictions, and that only became apparent when trials began at the Tribunal some 10 years ago. First, the crime base in international criminal proceedings is exceedingly complex, necessarily relating to a large-scale war with a number of political and historical factors behind it that the parties often regard as requiring detailed exploration. Second, the elements of the crimes and modes of responsibility are far more complex than their analogues in domestic criminal law, and require a great deal of evidence to link the accused to the crimes with which he or she is charged, especially in more recent cases involving higher-level accused. Third, the witnesses are often unfamiliar with the adversarial method of examination and cross-examination. As a consequence, it is often difficult for the judges and the prosecutor to restrict the testimony of a given witness to what is relevant to the charges in the indictment, where that witness wants to be left free to tell his or her story. Fourth, in many cases it appears that defence counsel from the region misunderstand the adversarial system, and endeavour to point out to the Chamber every inconsistency and error in the evidence of the witness — even on irrelevant and trivial points — which tends to make cross-examination unnecessarily lengthy. This has resulted in trial proceedings that, absent a plea agreement between the parties, habitually last two or more years — much longer than even the most complicated trials in domestic jurisdictions.

Having become aware of the serious problems caused by lengthy trial proceedings, in December 2000, the judges deleted the rule favouring live testimony in order to make way for two others — Rules 89(F) and 92bis — that allow the admission of written statements prepared for purposes of legal proceedings in lieu of oral testimony, but only if certain conditions are met. Rule 89(F) is contained in the introductory provision on rules of evidence, and states that ‘[a] Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form’. Rule 92bis is a much more extensive provision, allowing written witness statements to be admitted in lieu of oral testimony as long as they do not go to the ‘acts and conduct of the accused’. Unless the witness in question has died or cannot be found with reasonable diligence, any statement admitted under Rule 92bis must be accompanied by a declaration, sworn by the witness before an officer of the Tribunal's Registry, that its contents are true and correct. Under Rule 92bis(E), the Trial Chamber retains the discretion to call the witness for cross-examination despite this declaration if it deems it necessary and appropriate.

So, discounting the Rule on expert reports, we have two separate rules governing the admission of written evidence. The relationship between Rules 89(F) and 92bis has been the subject of considerable attention in the jurisprudence. Most of the litigation on this relationship took place in the course of the prosecution case in Milošević, beginning with a March 2002 decision on the prosecution's motion to admit certain statements under Rule 92bis, in which we admitted those statements but required the witness to appear and be subjected to cross-examination.11 I appended a declaration to this decision expressing the view that the flexible approach to evidence in the Tribunal's Rules fully supported the Trial Chamber's course of action. I noted the practice in my home country, Korea, which adopts a hybrid of civil-law and common-law systems and allows written statements to be admitted as long as the maker of the statement attends court to attest to the genuineness of the statement.12 I believed then, as I do now, that the admission of written statements in lieu of oral evidence has enhanced and will continue to enhance the ability of chambers to manage trials of a vast scale, and is fully consistent with principles of justice and fair-trial rights, subject to the proviso that the maker of the statement may be subject to cross-examination.

A year later, the prosecution again sought to admit into evidence a number of witness statements under Rule 89 instead of 92bis, proposing that the witnesses would thereafter attend court to attest to the truthfulness of their statements and undergo cross-examination. By admitting the statements in this way, the prosecution apparently hoped that it could avoid the stringency of Rule 92bis, especially the formal requirement of an attestation taken by a court officer — which is time-consuming and expensive — as well as the substantive requirement that the contents of the statement should not go to the acts and conduct of the accused. Basing itself on language from a decision of the Appeals Chamber,13 the Trial Chamber denied the motion, holding that Rule 92bis was the lex specialis on written witness statements and that if such statements were to come into evidence, it must be under Rule 92bis.14

I issued a dissent, stating my view that Rule 89(F) would allow such witness statements to come into evidence, provided the witness appeared in court to attest to the statement and was available for cross-examination. The witness's in-court adoption of the statement and cross-examination would serve as a substitute for the safeguards of Rule 92bis, which was designed for situations where the witness does not appear in court and cross-examination does not occur.15

The Trial Chamber granted certification to appeal this decision. The Appeals Chamber essentially adopted my interpretation of Rule 89(F), and reversed the Trial Chamber's decision. It held that where the witness is present and can orally attest to the accuracy of the statement, the evidence constitutes a mixture of oral and written evidence that is beyond the scope of Rule 92bis. The statement can accordingly be admitted under Rule 89(F) where ‘the interests of justice’ allow, provided that the witness: (i) is present in court; (ii) is available for cross-examination and (iii) attests that the statement accurately reflects what he or she would say if examined orally.16 While it did not discuss the matter expressly, the Appeals Chamber did not prohibit the admission of statements under Rule 89(F) that go to the acts and conduct of the accused. Later decisions of Trial Chambers have held that a statement that goes to the acts and conduct of the accused is not automatically barred from admission under Rule 89(F), but that this is instead a factor to be taken into consideration when determining whether admitting the statement is in the interests of justice.17

In the final analysis, the jurisprudence appears to have created a dichotomy between Rules 89(F) and 92bis: all statements — even those which relate to the acts and conduct of the accused — may be admitted under Rule 89(F) where the interests of justice allow, provided the witness appears in court and is available for cross examination. Statements that do not relate to the acts and conduct of the accused may be admitted under Rule 92bis, provided they are accompanied by an attestation sworn before an officer of the Tribunal. The Trial Chamber retains the prerogative to call the witness for cross-examination even where the statement is accompanied by this attestation. In my view, however, calling the witness in spite of the attestation would appear to defeat the purpose of Rule 92bis. Therefore, I am of the opinion that, in relation to a motion for the admission of a witness statement pursuant to Rule 92bis, if the Trial Chamber decides that the witness must appear for cross-examination, Rule 89(F) should apply instead of Rule 92bis, since Rule 89(F) has evolved to deal with the scenario where the maker of the statement is called for cross-examination.18

After the Milošević Appeal Decision and during the remainder of the prosecution case, we admitted a great number of witness statements pursuant to Rule 89(F).19 Each time the witness appeared in court to adopt the statement and submit to cross-examination by the accused. It is my firm belief that, as a result of the admission of Rule 89(F) statements, the admittedly long presentation of the prosecution's case-in-chief was substantially shorter than it otherwise would have been. It is interesting to note that my common-law colleagues on the bench eventually came to agree with me that admitting written statements with cross-examination was an appropriate and fair way to expedite the proceedings, so much so that the Trial Chamber, in December 2005, unanimously reprimanded the accused for not making use of Rules 89(F) and 92bis himself to speed up the presentation of his case-in-chief.20

The increasingly rigorous use of Rules 89(F) and 92bis, even by benches composed predominantly of judges from the common-law tradition, is a prime example of the internationalization of criminal procedure. Rule 89(F), in particular, is a very flexible rule that affords the judges a number of options to ensure that the manner in which the evidence is presented serves the interests of justice and protects the accused's right of confrontation. In this regard, Chambers have occasionally engaged in a practice known as ‘partial bissing’, whereby certain portions of the written statement — for example, those relating the acts and conduct of the accused — may be redacted, with the witness instead testifying live about those events on direct examination. The remaining part of the statement is then admitted into evidence in lieu of oral testimony.

Still, a serious problem exists regarding Rule 89(F) statements, and this problem has to do with disclosure. The prosecution's practice has been to disclose to the bench and the defence the Rule 89(F) statement of a witness only after having ‘proofed’ the witness — that is, just before the witness takes the stand to attest to the statement and be cross-examined. This makes practical sense. Otherwise, a prosecution or Registry official would have to fly to the region to take the witness's statement weeks or, perhaps, months in advance of the witness's appearance in court, or the witness would have to be flown to The Hague weeks or months in advance to give the written statement, and then flown back to The Hague on the day he is to appear in court for cross-examination. Nonetheless, as a consequence of the prosecution's ‘last-minute’ disclosure, defence counsel unfamiliar with the statement's contents have trouble in coming up with effective questions to ask on cross-examination, and the judges have a hard time following the cross-examination and coming up with questions of their own for the witness. Perhaps, a pragmatic solution to this problem would be to require Rule 89(F) statements to be disclosed to the defence and the judges two or three days before the witness's appearance in court. That way, the witness could be flown to The Hague only once, give the statement, and stay in town just a few days before he appears in court; the judges and defence would also have sufficient time to evaluate the statement before cross-examination occurs. However, to ensure that such disclosure occurs well in advance, an express reference to Rule 89(F) could be inserted into Rule 66(A), which already allows a Trial Chamber or a pre-trial judge to order the Prosecutor to disclose Rule 92bis statements and other witness statements in advance of trial.21

4. Judicial Notice of Adjudicated Facts (Rule 94(B))

Rules 89(F) and 92bis are just two examples of rules already at the disposal of the judges of the Tribunal which, if used robustly, can go a long way in helping to speed up pre-trial and trial proceedings. These rules have been in our arsenal since December 2000.

Another tool that has been around for a long time — since July 1998 — is Rule 94(B), which allows a Trial Chamber to take judicial notice of facts adjudicated in a previous case of the Tribunal. The purpose behind judicially noticing facts adjudicated in prior proceedings is to reduce the need for repetitive testimony and exhibits in successive cases. Because so many of the cases at the Tribunal deal with the same events, a great deal of identical or nearly identical evidence is produced in case after case, consuming considerable time and resources. I have already cited the example of the Srebrenica witness who has testified to the same events in four different trials.

While taking judicial notice of facts of common knowledge, which is separately governed by Rule 94(A) of the Rules, is a mechanism that exists in all domestic jurisdictions in one way or another, taking judicial notice of adjudicated facts is a new creation of international criminal procedure that does not exist in either common-law or civil-law national systems. Taking judicial notice of adjudicated facts is quite different from taking judicial notice of facts of common knowledge in at least three ways. First, the jurisprudence does not limit adjudicated facts to those that are also facts of common knowledge, and their admission into evidence, therefore, has potentially far-reaching effects. Second, although a Chamber always retains discretion to reject a purportedly adjudicated fact on any ground, including that it may prejudice the accused or would otherwise frustrate the interests of justice, facts of common knowledge must be judicially noticed. Third, taking judicial notice of adjudicated facts merely creates a presumption that may be rebutted at trial, while taking judicial notice of a fact of common knowledge establishes the fact conclusively. In other words, the existence of the fact cannot then be rebutted at trial.22

Moreover, while judicial notice of adjudicated facts may appear to resemble the domestic-law concept of res judicata, it differs in important ways. First, under res judicata, a final judgment on the merits of an action precludes the parties or persons in privity with them from re-litigating issues that could have been raised in the prior case.23 The Tribunal's rule on judicial notice of adjudicated facts, on the other hand, allows judicial notice to be taken of facts adjudicated in earlier proceedings involving a different accused who has no privity with the accused in the current proceedings. Second, the rationale behind res judicata is somewhat distinct from that behind judicial notice of adjudicated facts: res judicata aims at relieving the parties involved in the proceedings of the cost and annoyance of multiple lawsuits,24 while judicial notice of adjudicated facts aims at speeding up trials by reducing the need for repetitive or overlapping crime-base and background evidence. There is some similarity in the respective rationales behind the two doctrines, however, in that they both seek to conserve judicial resources and to foster uniformity among the findings of different courts.25

The proper utilization of the rule on judicial notice of adjudicated facts allows the Trial Chamber to dispense with evidence on the crime base, so that it may focus the trial more squarely on the real matters in issue between the parties, and dispose of supplementary allegations already proven in the past proceedings.26 But taking judicial notice in this way also carries with it a number of potential dangers and concerns that were noted by former ICTY Judge Patricia Wald as early as 2001: judicial notice may have significant negative implications for the accused's right to confront the witnesses against him. The accused in the previous proceedings may have had no interest in defending the interests of this accused, and indeed may have sought actively to lay the blame on him.27 This is the main reason behind the prohibition that has developed in the case law on admitting facts that relate to the acts and conduct of the accused.28

These concerns relating to the accused's right to a fair trial have also led, until relatively recently, to a great deal of reluctance on the part of Trial Chambers to take judicial notice of adjudicated facts. It is safe to assume that many other judges — including myself — shared Judge Wald's concern. The first use of the rule on adjudicated facts occurred in March 1999 in the Simić and others case, where the Trial Chamber rejected a prosecution request to judicially notice factual findings from the Tadić and Delalić and others Trial Judgments stating that the armed conflict in Bosnia-Herzegovina was international in character as of April 1992. The Chamber remarked that, when determining whether a fact should be judicially noticed, ‘a balance should be struck between judicial economy and the right of the accused to a fair trial’.29

In June 2002, in Milošević, we also denied judicial notice of certain facts alleged to have been adjudicated in the Jelisić Judgment relating to events in Brčko.30 At the time, we interpreted the rule as providing that judicial notice of an adjudicated fact — like judicial notice of a fact of common knowledge — established the fact definitively and the fact is, therefore, not rebuttable at trial. The natural consequence of this concern was to limit judicial notice only to those adjudicated facts of a background or historical nature and to reject the rest. In February 2003, however, the Trial Chamber in Krajišnik set forth a different interpretation of the legal consequences of judicially noticing an adjudicated fact, holding that judicial notice establishes a ‘well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial — unless the other party brings out new evidence and successfully challenges and disproves the fact at trial’.31 Yet in April 2003, we again denied judicial notice of certain proposed adjudicated facts and, in essence, rejected the Krajišnik approach.32

In October 2003, the Appeals Chamber reversed our decision and essentially adopted the Krajišnik definition as the definitive one for the ICTY and the International Criminal Tribunal for Rwanda (ICTR): judicial notice establishes a ‘well-founded presumption’ in favour of the moving party — whether it be the prosecution or the defence — that the fact is accurate. As a consequence, that party does not need to prove the fact at trial, but the other party — prosecution or defence — may put forth evidence to rebut it.33

This decision of the Appeals Chamber widened the possibility for future Trial Chambers to take judicial notice of adjudicated facts; Trial Chambers have, indeed, made much more frequent use of the Rule since 2003. Subsequent to the Appeals Chamber's decision, the main concern on the part of Trial Chambers has been to strike the right balance between the need for an expeditious trial and the need to guarantee the rights of the accused. With these needs in mind, on remand from the Appeals Chamber we articulated two other concerns that may lead a Chamber to withhold judicial notice of an adjudicated fact even though all the requirements for admissibility have been fulfilled. First, noticing the fact may place too big a burden on the accused in the production of rebuttal evidence, especially where the prosecution seeks judicial notice of a large number of adjudicated facts. Second, the production of rebuttal evidence may also take excessive time and resources, consequently frustrating — instead of promoting — judicial economy.34

As time has progressed and more final judgments have been rendered in the ICTY and ICTR, the prosecution has sought to make increased use of Rule 94(B), very frequently citing judicial notice of hundreds of facts purportedly adjudicated in previous proceedings. A recent motion in my current case, Popović and others, seeks judicial notice of 534 facts said to have been adjudicated in the other three judgments of the ICTY relating to the events in Srebrenica in 1995.35 Moreover, in sharp contrast to the initial reluctance just a few years ago to grant motions for judicial notice, the Chambers of the Tribunal have been increasingly willing to grant such notice.

The adoption and increased use of the rule on adjudicated facts is, like the rules on the production of written evidence of witnesses, another example of the process of internationalization of criminal procedure. It will be interesting to observe the continued evolution of the practice of judicial notice of adjudicated facts, and especially how the non-moving party — almost always the defence — will go about rebutting the presumption in favour of the adjudicated fact.

Let me add a final note of interest while I am on the subject of judicial notice. A recent and very famous example of judicial notice of facts of common knowledge occurred in June 2006, when the Appeals Chamber common to the ICTY and ICTR judicially noticed the fact that genocide occurred against the Tutsis in Rwanda in 1994.36 As a consequence of the mandatory operation of Rule 94(A), all future Trial Chambers of the ICTR must take notice of this fact, which establishes definitively and irrebuttably that genocide occurred.

5. Measures to Reduce the Size of Cases (Rule 73bis)

Trials at the ICTY have been long since the very beginning. Having become aware of this problem after the Tadić trial, the judges introduced Rule 73bis into the Rules in July 1998. This Rule obliged the prosecution to estimate the length of its case-in-chief and the number of witnesses it would call, and allowed the pre-trial judge to invite the Prosecutor to shorten the estimated length of examination-in-chief for some witnesses and to reduce the number of witnesses. In April 2001, Rule 73bis(C) was expanded considerably, giving the pre-trial judge the authority to determine the number of witnesses the prosecution may call, and the time available to the prosecution for presenting evidence.

But certainly the most effective measure for tackling the problem of lengthy trials would be to limit the number of charges in the indictment themselves. With a more focused indictment, the production and analysis of crime-base and linkage evidence would be a much speedier process than it currently is in the majority of the cases at the Tribunal.

Yet, the Prosecutor and her staff appear to be unwilling, in most instances, to voluntarily reduce the number of charges in their indictments. There appear to be at least three reasons behind this attitude. First, the Prosecutor, many human-rights groups, and much of the public consider that one of the central duties of the Tribunal is to do justice to every single victim of the Balkan wars of the 1990s. Proceeding to trial on an indictment that is less than fully comprehensive of all the crime sites associated with a particular accused could be seen as denying justice to the victims of atrocities carried out at the crime sites not included. Second, the Prosecutor and many human-rights groups seem to believe that it is one of the Tribunal's main duties to actively foster the reconciliation of the various ethnic groups in the region, as well as to compile a complete historical record of the war and determine the truth of what actually happened, both of which would ostensibly require trial to proceed on charges that are as comprehensive as possible. Third, the Prosecutor seems intent on maintaining her ability to go on what has been referred to as a ‘hunting expedition’: by charging the accused with more crimes through more modes of responsibility, the Prosecutor apparently believes that she stands a greater chance of convicting the accused on at least one charge. The persistent resistance of the Prosecutor and her senior staff to the idea of trying Slobodan Milošević first on the charges against him relating to Kosovo, and later on the charges relating to Bosnia and Croatia — even as recently as December 2005, when the Trial Chamber proposed severing the Kosovo indictment and rendering judgment on it before rendering judgment on the other two indictments37 — is a prime example of this attitude.

In my view, however, the paramount role of the judges of the Tribunal is to adjudicate, in as fair and expeditious a manner as possible, the guilt or innocence of the accused before them. The task of determining guilt or innocence must take precedence over other, not strictly judicial, considerations. Ours is first and foremost a criminal court: the successful prosecution of the guilty and the exoneration of the innocent must remain our central concern.38

With this consideration in mind, the judges amended Rule 73bis again in July 2003 to include Rule 73bis(D), which allows the Trial Chamber just before the beginning of trial to:

… fix a number of crime sites or incidents comprised in one or more of the charges in respect of which evidence may be presented by the Prosecutor which, having regard to all the relevant circumstances, including the crimes charged in the indictment, their classification and nature, the places where they are alleged to have been committed, their scale and the victims of the crimes, are reasonably representative of the crimes charged.

The idea behind this provision is to invite or oblige the prosecution to focus its case on the more important charges against the accused, and to eliminate or simply not proceed to trial on the less important charges. Among those charges envisioned as less important, the rule makes specific reference to those that are not ‘reasonably representative’ of the crimes charged elsewhere in the indictment. Although it has existed for 3 years, however, Rule 73bis(D) has not been widely used, and its first invocation by a Trial Chamber occurred only in July 2006 in the Milutinović and others case.

Judge Bonomy's Working Group on Speeding Up Trials, after consultations with the Prosecutor and her staff, also arrived at the conclusion that the Prosecutor was unwilling voluntarily to reduce the size of her indictments, and recommended that if any serious attempt was to be made to focus trials properly, it would have to be undertaken by the judges of the Tribunal.39 The Bonomy Group recommended that Trial Chambers begin to use Rule 73bis(D), and suggested that appropriate limits could be set ‘in a number of imaginative ways’,40 although it did not provide examples of what imaginative ways it had in mind.

Subsequent to the Bonomy Report, the judges of the Tribunal expanded Rule 73bis in two ways. First, in addition to allowing the Trial Chamber to fix a number of crime sites or incidents that may be presented by the Prosecutor, Rule 73bis(D) now allows the Chamber to ‘invite the Prosecutor to reduce the number of counts charged in the indictment’. Second, Rule 73bis(E) allows the Chamber to go one step further and order the prosecution to select the counts in the indictment on which it will proceed at trial. Where the Trial Chamber makes such an order under Rule 73bis(E), either party may appeal against the decision as of right, instead of going through the usual process of seeking certification to appeal from the Trial Chamber. Both these new provisions differ from that which already existed under the Rule, which allowed the Chamber merely to ‘fix the number of crime sites or incidents’.

As I have already mentioned, in July 2006 the Trial Chamber in Milutinović and others  — incidentally, presided over by Judge Bonomy — was the first ever to apply Rule 73bis to preclude the prosecution from presenting evidence at trial in relation to certain crime sites. In the Chamber's view, these sites were not ‘reasonably representative’ of the theme of the prosecution's case alleging ethnic manipulation of Kosovo's population through deportation, forcible transfer and persecution of Kosovo Albanians.41 Included among these sites was Račak, the site of a massacre in January 1999 upon which a great deal of time-consuming evidence was presented by both parties in the Milošević trial. Although the Račak massacre received considerable media attention at the time, the incident is geographically and temporally removed from the deportation and forcible-transfer sites that formed part of the alleged Serbian ethnic-cleansing campaign in March and April 1999, and which compose the bulk of the crime base alleged in both the Milošević and Milutinović and others indictments. One particularly interesting aspect of the Milutinović and others decision is that it did not rely on either of the new provisions in Rule 73bis inserted just a month before the decision, and instead turned on the application of a portion of Rule 73bis(D) that had existed and had been gathering dust for several years.

Despite this positive precedent, however, the future use of Rule 73bis may not be as frequent as one might hope. The proper use of the Rule requires a comprehensive and intimate understanding of the prosecution's case. Unless one of the judges in the Trial Chamber also served as pre-trial judge in a given case, most Trial Chambers are unlikely to have this understanding by the time of pre-trial conference, when the rule's possible invocation is anticipated, because the judges will have only recently been assigned to the case. Moreover, at least for Rule 73bis(D), the indictment at issue must contain counts, crime sites, or incidents that are not ‘reasonably representative’ of the crimes charged. The rule's invocation in Milutinović and others would appear to have depended on the confluence of two fairly uncommon factors: Judge Bonomy's own familiarity with the nature and theme of the charges in the indictment, which is very similar to the Kosovo indictment in Milošević, a case on which he had worked for a number of years; and the fact that three of the alleged crime sites were true ‘outliers’ that did not fit well with the theme of the remainder of the indictment.

Rule 73bis is the most recently amended rule in the arsenal of the judges. Of course, only time will tell whether Milutinović and others is one of a kind, or instead begins a trend of rigorous use of Rule 73bis to compel the prosecution to focus the evidence presented on the most important counts and charges in the indictment.

6. Conclusion

As I have stated several times already, the greatest challenge currently facing the judges of the ICTY is the sheer enormity of cases before them. For the Tribunal to be able to process its remaining workload in the time made available to it by the Security Council, it is incumbent upon the Office of the Prosecutor to give up its reluctance to take the lead in reducing the size of its own cases. The indictments should be focused on important charges and the size of the cases should be manageable so that Prosecution's case-in-chief does not last longer than 1 year. An interesting decision was issued in August 2006 in the Šešelj case, where the Trial Chamber, noting Rule 73bis(D), called upon the prosecution to propose ways to ‘reduce the scope of the Indictment by at least one-third by reducing the number of counts charged in the Indictment and/or crime sites or incidents’.42 This should not be necessary. The prosecution should take the initiative to concentrate its cases on a handful of representative crime bases.

There is also a core duty incumbent on all us judges to continue to think ‘internationally’. We come from diverse domestic jurisdictions with many different methods of running criminal trials, and somehow we have managed to blend these methods together to successfully adjudicate crimes on a scale never attempted or even fathomed in domestic jurisdictions. This is a testament to our vision, our cooperativeness and our empathy. The continued evolution and expansion of international criminal justice demands that we always maintain these three virtues.

1
A. Cassese, ‘The ICTY: A Living and Vital Reality’, 2 Journal of International Criminal Justice (2004) 585, at 595.
2
SC Res. 1534 (2004), § 2.
3
See ‘Key Figures of ICTY Cases’ on http://www.un.org/icty/cases-e/index-e.htm (visited 1 August 2006).
4
Report on the Operation of the International Criminal Tribunal for the former Yugoslavia, UN Doc. A/55/382-S 2000/865, Annex I (2000), § 35.
5
SC Res. 1534 (2004), § 3.
6
Judgment, Hadžihasanović and Kubura (IT-01-47-T), Trial Chamber, 15 March 2006; and Judgment, Orić (IT-03-68-T), Trial Chamber, 30 June 2006.
7
SC Res. 1534 (2004), § 5.
8
Rule 85(A) of the Rules.
9
See Decision on Prosecutor's Appeal on Admissibility of Evidence, Aleksovski (IT-95-14/1-AR73), 16 February 1999, § 15. The Brđanin Trial Chamber observed in its Judgment that ‘it is well settled in the practice and jurisprudence of this Tribunal that hearsay evidence is admissible’ to prove the truth of its contents, but that the weight or probative value of hearsay evidence ‘will usually be less’ than live testimony in which the witness is subject to cross-examination. Judgment, Brđanin (IT-99-36-T), Trial Chamber, 1 September 2004, § 28.
10
Former Rule 90(A) (deleted in December 2000) (emphasis added).
11
See Decision on Prosecution's Request to Have Written Statements Admitted under Rule 92bis, Milošević (IT-02-54-T), Trial Chamber, 21 March 2002, § 30.
12
Ibid., Declaration of Judge O-Gon Kwon, § 2.
13
See Decision on Interlocutory Appeal Concerning Rule 92bis(C), Galić (IT-98-29-AR73.2), Appeals Chamber, 7 June 2002, § 31.
14
Decision on Prosecution Motion for the Admission of Evidence-in-Chief of Its Witnesses in Writing, Milošević (IT-02-54-T), Trial Chamber, 16 April 2003, at 2.
15
Ibid., Dissenting Opinion of Judge O-Gon Kwon, § 4.
16
Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, Milošević (IT-02-54-AR73.4), Appeals Chamber, 30 September 2003, § 21.
17
See e.g. Decision on the Prosecution's Motions to Admit Prior Statements as Substantive Evidence, Limaj, Bala, and Musliu (IT-03-66-T), Trial Chamber, 25 April 2005, § 18. See also Decision on Prosecution's Motions for Admission of Statement of Witness Milan Babić, Martić (IT-95-11-T), Trial Chamber, 10 February 2006.
18
Shortly after the September 2006 Beijing conference at which I delivered the speech that resulted in this article, Rule 92bis was amended and a new rule — Rule 92ter — was added. Rule 92bis was made substantially shorter, deleting the portion allowing the Trial Chamber to order the cross-examination of a witness whose written statement has been admitted into evidence under the rule. Rule 92ter was intended to take the place of Rule 89(F), and covers situations in which the witness' written statement is admitted into evidence but the witness is called for cross-examination. Under Rule 92ter the witness statement may go to the acts and conduct of the accused, but only if the three conditions from the September 2003 Milošević appeal decision are fulfilled: the witness must be present in court; he must be available for cross-examination and any questioning by the judges; and he must attest that the written statement accurately reflects his declaration and what he would say if examined. These amendments bring the rules on the admission of written evidence substantially in line with my views: Rule 92bis is only to be used where the written evidence does not go to the acts and conduct of the accused and where the witness does not appear in court, with Rule 92ter being used in lieu of Rule 92bis in other situations — that is, if the witness appears in court for cross-examination or partial examination-in-chief, or if his statement goes to the acts and conduct of the accused. See Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, UN Doc. IT/32/Rev. 39 (2006), Rules 92bis and 92ter (hereinafter ‘New Rules’).
19
See e.g. Decision on Prosecution Motions for the Admission of Witness Statements Pursuant to Rule 89(F) and Protective Measures for Witnesses B-1770 and B-1619, Milošević (IT-02-54-T), Trial Chamber, 9 December 2003; Decision on Prosecution Application under Rule 89(F) to Admit the Statement of Witnesses Hrvoje Sarinić in Evidence, Milošević (IT-02-54-T), Trial Chamber, 18 December 2003; Decision on Prosecution Motion for Admission of a Summary of the Testimony of Witnesses B-1489 Pursuant to Rule 89(F), Milošević (IT-02-54-T), Trial Chamber, 12 January 2004; Decision on Confidential Prosecution Motion for Admission of a Transcript and Statement Pursuant to Rules 92bis(D) and 89(F) for Witness B-1805, Milošević (IT-02-54-T), Trial Chamber, 12 January 2004; Decision on Prosecution Application under Rule 89(F) to receive the Evidence-in-Chief of Witnesses Diego Arria in Written Form, Milošević (IT-02-54-T), Trial Chamber, 23 January 2004.
20
Decision in Relation to Severance, Extension of Time and Rest, Milošević (IT-02-54-T), Trial Chamber, 12 December 2005, § 20.
21
Shortly after the September 2006 Beijing conference at which I delivered the speech that resulted in this article, Rule 66(A)(ii) was amended to make explicit reference to Rule 92ter which, as described in note 18 above, was inserted in the same revision of the Rules and effectively serves the function formerly served by Rule 89(F). Accordingly, a Trial Chamber or a pre-trial judge can now order the Prosecutor to disclose not only Rule 92bis statements and other witness statements, but also Rule 92ter statements, in advance of trial. See New Rules, supra note 18, Rule 66(A)(ii).
22
See Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice Karemera, Ngirumpatse, and Nzirorera (ICTR-98-44-AR73(C)), Appeals Chamber, 16 June 2006, § 42.
23
See e.g. Allen v. McCurry, 449 US 90 (1980).
24
Ibid.
25
See Ibid.; Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Facts pursuant to Rules 94 and 54, Semanza (ICTR-97-20-T), Trial Chamber, 3 November 2000, § 20.
26
Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses pursuant to Rule 92bis, Krajišnik (IT-00-39-T), Trial Chamber, 28 February 2003, § 11.
27
P. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court’, 5 Washington University Journal of Law and Policy (2001) 87, at 111.
28
Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, Karemera, Ngirumpatse, and Nzirorera, supra note 20, §§ 51–52.
29
Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to Take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, Simić, Simić, Tadić, Todorović, and Zarić (IT-95-9-PT), Trial Chamber, 25 March 1999, at 4.
30
Decisions on Prosecution's Motion for Judicial Notice of Adjudicated Facts Relevant to the Municipality of Brčko, Milošević (IT-02-54-T), Trial Chamber, 5 June 2002, at. 3–4.
31
Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses pursuant to Rule 92bis, Krajišnik, supra note 26, § 16.
32
Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-T), Trial Chamber, 10 April 2003, at 4.
33
Decision on the Prosecution's Interlocutory Appeal Against the Trial Chamber's 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-AR73.5), Appeals Chamber, 28 October 2003, at 4.
34
Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-T), Trial Chamber, 16 December 2003, §§ 11–12.
35
Shortly after the September 2006 Beijing conference at which I delivered the speech that resulted in this article, the Trial Chamber rendered its decision on this motion, comprehensively discussing and developing the law on judicial notice of adjudicated facts, and ultimately denying judicial notice to more than half of the 534 proposed facts. See Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex, Popović and others (IT-05-88-T), Trial Chamber, 26 September 2006.
36
Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, Karemera, Ngirumpatse, and Nzirorera, supra note 22, § 35.
37
Decision in Relation to Severance, Extension of Time and Rest, Milošević, supra note 20.
38
I. Bonomy, ‘The Reality of Conducting a War Crimes Trial’, speech delivered at ETHICS regional workshop for Europe, Riga, Latvia on 8 June 2006, published in this issue.
39
Final Report of the Working Group on Speeding Up Trials, 13 February 2006, at 5.
40
Ibid., at 13.
41
Decision on Application of Rule 73bis, Milutinović and others (IT-05-87-T), Trial Chamber, 11 July 2006, § 13.
42
Request to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment, Šešelj (IT-03-67-PT), Trial Chamber, 31 August 2006, at 2. There have been several developments at the Tribunal in relation to Rule 73bis since the September 2006 Beijing conference at which I delivered the speech that resulted in this article. In Šešelj, for example, the prosecution emphatically declined the Chamber's invitation to reduce the scope of the indictment, contending that the diversity of Šešelj's alleged conduct justified keeping the full indictment. Prosecution's Response to Trial Chamber's ‘Request to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment’, Šešelj (IT-03-67-PT), 12 September 2006, §§ 3, 28. In response, the Trial Chamber insisted that the scope of the indictment be reduced. The prosecution reluctantly proposed to drop certain counts and not to present evidence on certain crime sites; the Chamber accepted this proposal, and also ordered that evidence relating to a further series of crime sites not be presented. See Decision on the Application of Rule 73bis, Šešelj (IT-03-67-PT), 8 November 2006. Furthermore, in both the Perišić and Dragomir Milošević cases, the Trial Chamber also invited the prosecution — again under the newly amended part of Rule 73bis — to reduce the scope of the indictment. See Invitation to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment, Perišić (IT-04-81-PT), 20 November 2006, at 2; Scheduling Order Varying Time-Limits with Regard to the Commencement of Trial and Request to Prosecution to Reduce the Scope of Its Case, Dragomir Milošević (IT-98-29/1-PT), 23 November 2006, at 3. The prosecution declined the invitation, citing policy reasons and invoking the independence of the Prosecutor; but it also noted that, if ordered to reduce the indictment, it would eliminate certain counts, and it suggested which counts could be eliminated. See Prosecution's Response to the Trial Chamber's Invitation to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment, Perišić (IT-04-81-PT), 4 December 2006; Prosecution's Response to Pre-Trial Chamber's ‘Invitation to Prosecution to Reduce the Scope of Its Case’, Dragomir Milošević (IT-98-29/1-PT), 5 December 2006.