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The Trial of the Century?

by Tonia Gillett 

I am often asked how I came to work for the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague and I am usually not able to give a short answer since it occurred through a mixture of fate, circumstance and a good word from exactly the right person at an opportune moment, and to that person I owe a huge debt of gratitude...

Following Bar school, I was left in the precarious yet all too familiar position of having no pupillage secured and not knowing quite what to do with the year ahead of me, other than trying to get a pupillage for the following year. I ended up getting a job in Bosnia and Herzegovina where I remained for three years monitoring national war crimes trials, conducting legal analysis and assisting in shaping policy on national war crimes trials at the Office of the High Representative (the lead institution on civilian implementation of the Dayton Peace Agreement). As events turned out, this digression from the well-trodden path to becoming a barrister was most fortuitous and is undoubtedly one of the reasons I came to work at the ICTY.

After five years practice back in London, I was offered what I considered the opportunity of a lifetime to work at the ICTY, in The Hague. In fact the opportunity transpired to be even more than I could have hoped, for I found myself assigned as associate legal officer to the then Presiding Judge, the late Sir Richard May, on arguably the most significant trial since the Nuremburg trials, the trial of Slobodan Milosevic.

Background to the ICTY

The ICTY was established by a United Nations Security Council Resolution passed on 25 May 1993, in the wake of serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991, and as a response to the threat to international peace and security posed by those serious violations. Since its inception, the Tribunal has become a fully operational legal institution rendering judgments and setting important precedents of international criminal and humanitarian law. Many legal issues now adjudicated by the Tribunal have never previously been adjudicated or have lain dormant since the Nuremberg and Tokyo trials.

Structure of the ICTY

The ICTY is broadly split into three sections housed within one building: the Office of the Prosecutor (OTP), headed by Chief Prosecutor Carla del Ponte; the Registry, headed by the Registrar, Mr. Hans Holthuis; and Chambers, comprising the Judges, including the President of the Tribunal, Theodor Meron.

The OTP operates independently of the United Nations Security Council, of any State or international organisation and of the other organs of the ICTY. Its members are experienced police officers, crime experts, analysts, lawyers and trial attorneys.

The OTP conducts investigations (by collecting evidence, identifying witnesses, exhuming mass graves), prepares indictments and presents prosecutions before the judges of the Tribunal. Investigations are initiated by the Prosecutor at her own discretion or on the basis of information received from individuals, governments, international organisations or non-governmental organisations, and indictments must be confirmed by a judge prior to becoming effective.

The Registry, by contrast, houses “Chambers” and the “legal support” section. For obvious reasons, mechanisms are in place to separate the Registry from the OTP and these include restricting staff access to parts of the building with electronic passes.

In essence, the Registry is responsible for the administration and judicial support services of the Tribunal, including the translation of documents and the interpretation of court proceedings. The Registry's judicial responsibilities cover the organisation of the hearings, the legal filings and archives, the operation of the legal aid programme for indigent defendants, the provision of assistance and protection to witnesses, and the management of the Detention Unit. Together with the President, the Registrar carries out diplomatic functions. The Registrar is also in charge of all communications to and from the Tribunal.

Chambers, although technically part of the Registry, is quite a different creature since it comprises the 25 judges of the Tribunal (16 permanent judges and 9 ad litem). The 16 permanent judges are elected by the General Assembly of the United Nations for a term of four years and can be re-elected.

The ad litem judges are drawn from a pool of 27 judges. They are also elected by the General Assembly of the United Nations for a term of four years, but they are not eligible for re-election. An ad litem judge can only serve at the ICTY, following his/her appointment by the Secretary-General on the recommendation of the President of the Tribunal, in order to sit on one or several specific trials for a period of up to three years.

The judges represent the main legal systems in the world and bring to the Tribunal a variety of legal expertise, although not all are professional judges in their countries of origin, as some hail from academic or diplomatic backgrounds. In addition to hearing testimony and legal arguments, deciding on the innocence or the guilt of an accused and passing sentence, the permanent judges also have important regulatory functions: they draft and adopt the legal instruments regulating the functioning of the ICTY, such as the Rules of Procedure and Evidence. The judges are divided amongst three Trial Chambers and one Appeals Chamber.

The Trial Chambers hear cases at the pre-trial stage and trials with judges sitting in panels of three. As the caseload of the Tribunal has increased, so too has the number of judges and their support staff so that nowadays the Trial Chambers are sub-divided again, in order that more cases can be heard. Trial Chamber I is sub-divided into two parts, each with three judges; and Trial Chamber II is divided into three sub-sections, each with three judges. Trial Chamber III is the only Trial Chamber that is not divided because it has conduct of the trial of Slobodan Milosevic and so has just one panel of three judges. Within each Trial Chamber, each judge has an assistant (known as an associate legal officer) who is a fully qualified lawyer. There are then two other assistant positions filled by “floating” associate legal officers who assist all three judges. Finally there is a legal officer and a senior legal officer who are more experienced lawyers (around 15 years call or more) and whose roles are both legal and managerial since they act as co- ordinators and liaison officers between the judges and the associate legal officers to ensure efficiency and consistency.

The conduct of trials at the ICTY draws from both the civil law and common law systems: elements of the adversarial and inquisitorial procedures are combined but with a definite bent toward the adversarial system. The Rules of Procedure and Evidence guarantee that ICTY proceedings adhere to internationally recognised principles of fair trial. As an important guarantee of a fair trial, the legal aid programme provides counsel for indigent defendants at the expense of the Tribunal. The Rules of Procedure and Evidence also ensure the right of appeal.

The Appeals Chamber contains 7 judges who sit in panels of 5 to decide appeals made by the parties from decisions of a Trial Chamber. Such appeals can be against conviction and sentence or can be of an interlocutory nature.

I work in Trial Chamber III which, as I have mentioned, has conduct of the Milosevic trial. In addition, we have four cases at the pre-trial stage which can mean anything from an initial appearance up to the point where all disclosure obligations are complete and the case is trial-ready, but awaiting a free panel of judges.

Overview of the Milosevic Case

The Milosevic trial is one of the lengthier trials at the Tribunal, having begun on 12 February 2002 following Mr. Milosevic’s arrest on 1 April 2001 and subsequent transfer to The Hague on 29 June 2001. The Milosevic trial comprises three separate indictments (one for Kosovo, one for Croatia and one for Bosnia and Herzegovina) that are being tried within one trial. Carla del Ponte is the Chief Prosecutor of the Milosevic trial and Geoffrey Nice Q.C. is the senior trial prosecutor. There are numerous others involved on the prosecution side due to the sheer volume of evidence, including more junior prosecutors and case managers.

Until 1 September 2004, the Accused represented himself with the assistance of three legal associates from Belgrade, advising him only outside the court. There were also three Amici Curiae (one of whom was Stephen Kay Q.C.) who were put in place by the Trial Chamber early on in the trial process to ensure fairness to the Accused and to assist the Trial Chamber. However, following the Accused’s opening statement on 31 August and 1 September 2004, the Trial Chamber made an oral ruling to assign defence counsel to him in light of medical reports which indicated he was not fit to continue to defend himself. Subsequently the Trial Chamber issued written reasons for its decision on the assignment of counsel. [1]

The Prosecution case concluded on 25 February 2004 after a total of 296 witnesses gave evidence and over 750 exhibits were adduced in evidence. The transcript pages of proceedings thus-far run to in excess of 32,000 pages. Apart from the sheer volume of evidence, the trial is lengthy because the Trial Chamber does not sit every day. It became apparent at a relatively early stage of the trial that the Accused’s health, combined with the workload that he faces in preparing his own defence, necessitated the Chamber not sitting 5 days a week and so the sitting times were reduced. From the end of September 2003, the Trial Chamber further reduced its court sitting time to a three day week, from 9am – 1.45pm, in order to try to minimise days lost through the Accused being taken ill.

Following the close of the Prosecution case, a submission of no case to answer was made by the Amici Curiae, in writing [2]. Thereafter the Prosecution gave a written response [3] and the Trial Chamber then had to render its decision. Due to the complexity of the case, the decision-making process took some four months but, during this time, the Accused was able to use the three months that he had been allocated by the Trial Chamber for preparation of his defence and to disclose any relevant information to the Prosecution and the Trial Chamber. Again, due to his persistent ill-health, the Accused was not able to work consistently throughout this four month period and so the three-month allocation spanned a longer time frame to account for days when he was unable to work due to illness.

The Defence case was due to commence in June 2004 but, as was widely reported in the media, it was delayed due to the ill-health of the Accused. The Trial Chamber has ordered that the Defence case should last a maximum of 150 sitting days, calculated in part on the basis of the time allotted to the Prosecution. The Defence case, having eventually commenced on 31 August 2004 with the Accused’s opening statement, currently stands adjourned until 12 October 2004, in order to allow newly assigned defence counsel preparation time. The newly assigned defence counsel are in fact two former Amici Curiae from this case.

Working at the ICTY

My role in this whole process is to assist one of the three Judges of Trial Chamber III. I came to work at the ICTY in August 2003, and originally I was the assistant to the Presiding Judge on the Milosevic trial, the late Sir Richard May (who had been at the Tribunal since 1997 and had already presided over one 18 month trial, amongst numerous other hearings). It was an honour and a privilege to work with a judge of his calibre, until his early retirement from the Tribunal in May 2004 due to ill-health. Since then I have worked as assistant to Lord Bonomy, a Scottish Judge, who was sworn in as Sir Richard May’s replacement in June this year.

The work of an associate legal officer as assistant to a judge is diverse; it involves a tremendous amount of responsibility, dedication, judgment and professionalism. It constantly stretches the reaches of my knowledge and understanding of the law but, with that challenge, comes the privilege of working as close to the action as the Judge himself.

My work will ultimately result in assisting in drafting the judgement in the Milosevic case and so my day-to-day work comprises preparation for this task. In reality, this involves anything from summarising the evidence given by witnesses, including exhibits, to researching points of law, to actually analysing the evidence and drawing it together to draft sections of the judgement, such as that pertaining to individual criminal responsibility for each of the indictments; all this, of course, under the guidance and direction of the Judges. In addition, on an almost daily basis, and sometimes more than once a day, the parties file written applications or motions with the Trial Chamber, ranging from asking for protective measures to be imposed for particular witnesses, to requesting the co-operation of third parties, to altering the witness running order, to making written submissions on particular issues that have arisen during proceedings. The Trial Chamber has to take decisions or make orders in relation to these written filings and so again, under the guidance of the Judges, I, sometimes along with other associate legal officers in the Trial Chamber, draft decisions or orders for the Judges’ consideration. I then assist in finalising such decisions and orders before they are signed and distributed to the parties. Most recently, I have been heavily involved in assisting the Judges in drafting the written reasons for the oral ruling to assign defence counsel in the Milosevic case. [4]

Similarly, when the Trial Chamber had to deal with the submission of no case to answer, I, along with all staff in Trial Chamber III, worked on a thorough analysis of the evidence in order to address the challenges of no or insufficient evidence raised by the Amici Curiae, an immense task that took every hour of the four months to complete. In addition, the Amici had made three legal challenges which I, and other associate legal officers, researched and in response to which we provided detailed memoranda to the Judges for their deliberation. Having analysed and summarised all the evidence, and drafted memoranda to assist the Judges in their deliberations, and after many meetings between the staff and the Judges, the final decision was drafted and issued in mid-June [5].

The environment in which I work comprises lawyers and judges from all over the world, and the application of international humanitarian law in the Tribunal is shaped by their experience in pursuit of fair trials within a reasonable time, and the need for pragmatism in dealing with what are often unique situations. Working in the Tribunal provides tremendous scope for shaping international humanitarian law, as the Judges regularly have to decide on issues that have not previously been addressed. It is an extremely progressive environment, where the best procedural approaches, substantive laws from legal systems around the world and international human rights conventions are drawn upon and adapted, to develop international humanitarian law and strengthen its application. These ad hoc tribunals, such as the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone and the ad hoc tribunals established in East Timor and Cambodia, are credible, enduring institutions in their own right and have paved the way for the International Criminal Court (ICC), also based here in The Hague, the first permanent Tribunal of its kind.

Since the Milosevic trial is ongoing, I am regrettably not able to go into detail about specific issues on which I have worked or am currently working but I can say that, no matter what the outcome, I will have been an integral part of a process that will have changed the face of international humanitarian law and of which I am immensely proud to be a part.

Any motions or decisions referenced in this article can be found on the ICTY website at www.un.org/icty/

1. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Reasons for Decision on Assignment of Defence Counsel", 22 September, 2004.
2. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Amici Curiae Motion for Judgement if Acquittal Purusant to Rule 98bis", 3 March 2004.
3. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Prosecution Response to Amici Curiae Motion for Judgement if Acquittal Purusant to Rule 98bis", 23 March 2004.
4. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Reasons for Decision on Assignment of Defence Counsel", 22 September, 2004.
5. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Decision on Motion for Judgement of Acquittal", 16 June 2004.
6. Tonia is a barrister, on sabbatical from 15 New Bridge Street, working as an associate legal officer at the United Nations International Criminal Tribunal for the former Yugoslavia. The views expressed in this article are Tonia's and do not necessarily reflect the views of the International Tribunal or the United Nations in general.

• Any motions or decisions referenced in this article can be found on the ICTY website at www.un.org/icty/.

11 October 2004

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