Institute for War and Peace Reporting | Giving Voice, Driving Change
Experts Cite 'Room for Improvement'
A group of experts, appointed by the United Nations Secretary-General, Kofi Annan, to investigate the workings of the ICTY and outline ways of improving procedures, has reported that there is room for improvement at the Tribunal.
A large part of the report's recommendations focus on methods to speed up pre-trial, trial and appeal proceedings.
The legal complexity of the cases before the Tribunal, the uniqueness of the ICTY as an institution and the variable degree of co-operation afforded by the various governments involved, serve to prolong the trials heard before the Tribunal.
The report welcomed moves by some trial judges towards asserting greater control over proceedings and recommended this become common practice.
The group recommended a number of steps designed to expedite, in the first instance, pre-trial proceedings. The defence and prosecution parties should attempt to resolve contested issues between themselves rather than resorting to the usual procedure of presenting a motion before the court. Judges are also encouraged to find means to speed up the process by ordering, for example, that all motions be submitted by a deadline.
The report also suggests that the courts watch out for instances of "excessive lawyering". Given some lawyers enjoy higher fees for work at the Tribunal than they would do in practice in their home countries, there is a suspicion that unnecessary and excessive legal activity is being generated quite deliberately.
The group proposed that the Tribunal registry should ensure, when assigning counsel, that the question of fees is carefully looked into and that any lawyer have at least five years criminal trial experience.
Where a defendant has surrendered voluntarily to the Tribunal and has consented to trial in absentia, the report recommended the introduction of a rule for provisional release as a way to reduce unduly long pre-trial detentions.
To speed up the actual trial proceedings themselves, the group made a number of recommendations. Judges could require the parties to rule on undisputed issues to eliminate the need for the introduction of a potentially massive amount of evidence. Also the parties could reduce the time needed for clarifying background information already established in another trial.
A dossier of witness statements prepared by the prosecution, with comments by the defence, as well as the explanation of the nature of defence by counsel in the early stage of trial, would enable the proceeding to be focused on relevant issues.
As more and more trials are completed the workload of the appeals chamber is also escalating. The group recommended a preliminary screening mechanism to eliminate appeals deemed to be baseless.
The report also proposed that judges be assigned to either the trial chamber or the appeals chamber for their entire terms, rather than switching to and fro as they do at present.
Reiterating a request from the Tribunal president, the experts called for an increase in legal staffing assigned to assist the judges. In addition the group suggested the introduction of two temporary ad-hoc judges and two extra appeals court judges.
The lack of co-operation from certain states was also recognised as a "most important obstacle" in the way of the Tribunal's effective operation. "Although the Bosnian authorities, and to a lesser degree the Croatian authorities, have co-operated with the Tribunal, the FRY and Republika Srpska, in which many indictees appear to be living, have generally been totally uncooperative," the report concluded.
The group, however, admitted the only way to coerce a state into cooperation remains referral of the case to the UN Security Council - a remedy which has proved rather ineffectual to date.
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