Secrecy and Justice at the ICTY

Simon Jennings

Africa Editor

Monday, 15 February, 2010

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Lingering claims that the former prosecutor of the International Criminal Tribunal for the Former Yugoslavia, ICTY, struck a deal with Belgrade which led to controversial Serbian military documents being kept under wraps have fuelled a debate on whether there should be greater transparency of proceedings at the court.



Tribunal-watchers have mixed views on the matter. Some say that justice is undermined by shielding important evidence from the public, while others argue that a degree of non-disclosure is critical to the prosecution of cases.



In April 2007, former ICTY prosecutor Geoffrey Nice, who worked on the case of former Yugoslav president Slobodan Milosevic, said that the then chief prosecutor Carla Del Ponte agreed in principle in a letter to the Serbian authorities not to oppose the granting of protective measures to parts of the transcripts from wartime meetings of Serbia’s Supreme Defence Council, SDC, whereby those parts could remain unavailable for public viewing.



Nice told IWPR that he had written a memorandum to Del Ponte before she made this agreement, explaining that there was absolutely no reason in law for any parts of the transcripts to be protected in this way.



He had not been consulted about what Del Ponte intended to do and she rejected his advice, he said.



At the time, the ICTY chief prosecutor’s office stoutly denied the claims, saying in a statement that “only judges and not the prosecutor can decide on the protective measures to keep material from the public”.



The documents were reportedly granted confidential status by tribunal judges at Serbia’s request, under rule 54 bis of the tribunal’s rules of procedure and evidence which allow a state to keep its documents secret if their disclosure “could prejudice national security interests”.



The minutes are said to be key to gaining an accurate picture of Serbia’s involvement in the war in the former Yugoslavia – and the accusation that they had been blacked out as part of a political deal provoked an outcry in Bosnia.



In February 2007, judges at the International Court of Justice, ICJ, found that Serbia was not to blame for the genocide in Bosnia. While ICJ judges never requested the SDC documents from the tribunal, many observers believe their confidential status meant that they were not submitted as evidence during the case – and some speculate that this could have altered its outcome.



In February, IWPR published a report that said Belgrade appeared to have exploited tribunal rules in order to prevent the sensitive documents being made available to the judges presiding over the ICJ genocide case.



In the report, Belgrade journalist Slobodan Kostic wrote that sources close to the former administration of Serbia and Montenegro said ministers agreed to do everything they could to prevent disclosure of documents to the ICTY that might jeopardise national security. When in June 2003, the court ordered Belgrade to hand over SDC meeting transcripts, Serbian officials requested protective measures under rule 54 bis.



Before that, Del Ponte had reportedly written to the head of the National Council for Cooperation with the Tribunal, Goran Svilanovic, stating that she would not oppose Serbia’s requests for protective measures on certain documents, provided that these were applied in accordance with tribunal rules.



Such revelations have caused tribunal-watchers to question the lengths that prosecutors are prepared to go to get their hands on evidence to convict war crime suspects.



While most recognise the need to protect witnesses and sensitive material in war crimes trials, some are calling for more transparent measures to be put in place to avoid apparently political decisions being made at the expense of justice.



TRIBUNAL APPROACH TO TRANSPARENCY



The court’s rules oblige it to operate with a degree of transparency, with article 22 of its statute stating “the accused shall be entitled to a fair and public hearing”.



The tribunal has made great efforts to publicise courtroom developments, which are often televised across Balkan states and viewable over the internet.



Hague prosecutors, too, have sought to ensure that the proceedings remain as public as possible.



Robert Donia, an historian and ICTY expert witness, illustrates the point by citing the transcripts of the case of the late Milan Babic, the former leader of rebel Serbs in Croatia's Krajina region. “The prosecutors, in particular, were very conscientious about limiting the use of closed sessions,” he said.



Nonetheless, court procedures often seem less than transparent.



Marko Attila Hoare, a Balkans specialist at Kingston University in London, said secrecy at the tribunal was a “problem”.



“The whole [tribunal] isn’t really public, it’s not transparent, and there’s not much democracy involved,” he said.



Indeed, when it comes to posting public documents on its website, the ICTY falls short of full disclosure.



Unlike the International Criminal Court, ICC, which claims to post all case documents on its website, the ICTY confines itself to public decisions and the more important documents and motions filed by prosecutors and defence.



While all public documents are available on request, some have accused the ICTY of being selective in the material it posts online.



For example, one important public order – to enlist the help of the Netherlands in force-feeding ultra-nationalist Serb politician Vojislav Seselj, who went on hunger strike in the United Nations detention unit at the tribunal – has never been put on the website.



The failure to post certain sensitive documents has led to a degree of scepticism about the ICTY’s intentions regarding transparency.



“I have the cynical suspicion that decisions that are not received very favourably are not published,” said Dr Goran Sluiter, professor of law at Amsterdam University.



According to Sluiter, the reason the ICC is seemingly more transparent than the ICTY is because it is looking to learn lessons from the latter’s experience over the last 15 years.



“At the ICTY and ICTR [International Criminal Tribunal for Rwanda] the management of documents and decisions has not been dealt with very well from the beginning,” he said. “So the ICC tries to have…clear criteria as to when something should be public and when something should be confidential, and how to redact things.”



HOW CONFIDENTIALITY RULES WORK



According to the tribunal’s rules of procedure and evidence, the confidential status of any document, motion or decision must be ruled upon by trial chamber judges.



Such a ruling can be made at the request of any party holding evidence in the case – which can be the prosecution, the defence, or another party, such as the Serbian government, for example – while the others are free to make submissions on the matter.



The ICTY registry itself can request the judges to impose a seal on any documents it deems should be confidential in order to protect victims and witnesses.



"All of these things [confidential measures] are there to facilitate the appearance before the tribunal of either witnesses or documents which otherwise people would be reluctant to provide,” spokesperson for the Office of the Prosecutor Olga Kavran told IWPR.



“I think that all these measures are very important in allowing the court to see evidence and to hear evidence which people may be reluctant to provide either because of their safety or other concern or national security. In each of these situations, the judges decide [on their confidential status].”



However, some complain that protective measures are applied too freely and in inappropriate circumstances.



Donia told IWPR of his experience of confidentiality at the tribunal, when a report he compiled in response to a defence witness’s expert report was placed directly under seal by the registry.



The reason for this was that although it was based entirely on open sources, the expert’s report it referred to had been previously been blacked out – a measure he felt to be an anomaly.



“That, to me, is a bit unorthodox [to grant confidentiality to an expert report] and I would think kind of inappropriate… There should be no reason not to release it…in the public domain,” he said.



Others criticise what they say are the constricting rules which forbid even the motions and decisions relating to confidential material from entering the public domain.



This can lead to a series of judges’ decisions – both in the trial chamber and on appeal – being made behind closed doors, as happened in the case of the SDC documents.



Tribunal representatives argue that such measures are unavoidable if confidential material is to be prevented from disclosure.



“If it [a decision] is being challenged, then [lawyers] have to put arguments as to the reason why they are challenging it, which means they have to quote reasons why they think the details should be public, which means they are revealing the very material that is protected,” explained tribunal spokesperson Nerma Jelacic.



Yet critics say this means judges are not held accountable for their decisions, while prosecutors complain that they are effectively gagged by the restrictions.



Nice has told IWPR of being “enormously frustrated” by not even being able to disclose the fact that prosecutors had challenged a confidential decision related to the SDC minutes.



JUDGES’ TREATMENT OF SDC MINUTES



It is the tribunal’s granting of protective measures to the SDC minutes that has caused the greatest controversy in relation to transparency at the court.



In this case, when judges granted the documents confidential status, the public was not allowed to know what lay behind the decision.



Former ICTY prosecution spokesperson Florence Hartmann, who first discussed how the tribunal’s judges granted protective measures to sections of the SDC minutes in her book “Peace and Punishment”, said appeal judges later ruled that the Milosevic trial chamber had erred in granting confidentiality to portions of the documents.



“According to the appeal judges, all previous decisions of the Milosevic Trial Chamber protecting the SDC documents from disclosure because of potential prejudice to Serbia’s ‘vital national interest’ rather than a ‘national security interest’ were ‘wrong as a matter of law’,” wrote Hartmann in her article Vital Genocide Documents Concealed, published on the Bosnian Institute website on January 21.



She claims the appeals chamber found that the trial chamber’s decision to grant protective measures was based on a misinterpretation of tribunal rules.



Nice told IWPR that according to the trial judges’ decision, confidentiality was accorded on the grounds of “vital national interest” rather than “national security interests” as provided for under rule 54 bis.



There is no legal justification for granting protection on this basis, he said.



There are concerns that permitting confidentiality under the looser heading could create scope for withholding information from the court.



The former prosecutor said that the judges made their decision based on arguments put to them by Serbian officials in a private or ex parte (exclusive) hearing – which is allowed under tribunal rules. The written agreement was thus available privately to the court.



The contents of the hearing, he said, were not disclosed to the prosecution.



“We were presented with the conclusion that they should be blacked out, with the bare explanation that this was on the grounds of vital national interest,” said Nice.



“But we were not provided by the system at the ICTY with the argument or the reasoning that Serbia had applied.



“At the stage of getting the decision, we were not aware of what passages were granted this protection. This detail came later, and after time had expired for appealing the ruling that used the phrase ‘vital national interest’.”



According to Nice, this denied his prosecution team the crucial information needed to argue against the decision.



“We only had a conclusion to argue against, and we felt at the time, before we knew what passages were to be protected, that wasn’t enough,” he told IWPR.



A NEED FOR ACCOUNTABILITY



Some observers believe that the public should trust the competence of tribunal judges to make the right decision.



According to former deputy chief prosecutor David Tolbert, the ICTY can be compared to a national jurisdiction where the appeals chamber would be the equivalent of Britain’s House of Lords or the US Supreme Court. These both represent the ultimate legal authorities in their respective countries.



“If you have a House of Lords decision with confidential and non-public aspects, who would [challenge] that?” asked Tolbert. “Barring legislation, it is up the court to make the final decision, so it is a similar situation, in this sense, as that in the tribunal.”



This places the responsibility on tribunal judges – pressure that Tolbert believes cannot be shifted elsewhere.



“You have to trust the judges to get it right – I think that goes back to the building blocks of the rule of law and a proper administration of justice. The system relies on competent judges who are making sound decisions; you have to trust them to get it right at the end of the day,” he said.



However, others point out that judges can make mistakes – as some observers allege happened in the case of the SDC minutes – and they should be held more accountable for their findings.



The very foundations of the judicial system seem to be under the spotlight following the allegations that Del Ponte agreed not to oppose Serbia’s requests for protective measures to be granted to documents.



According to Nice, the accountability of the tribunal may be undermined if political priorities seem to influence its decisions.



“In the ICTY, the demarcation between politics and law was sometimes hard to find. When it seemed to have occurred, it was also difficult to hold anyone to account,” said Nice.



With confidential decisions leaving judges accountable to no one but themselves, many agree that there needs to be more oversight within the tribunal, if not outside as well.



Decisions could be reviewed by, for example, a second panel of judges within the court, or an external independent body.



“The tribunal has to come up with another set of mechanisms to review its handling of the evidence which is not just orientated towards the case in hand but has a broader kind of mandate,” said Professor Richard Wilson, director of the Human Rights Institute at the University of Connecticut.



Without such mechanisms, there may be a tendency for judges to look at a single case and apply the rules available to them, to the detriment of justice in a wider sense.



And at the same time, said Wilson, it is vital that accountability should not interfere with the independence of the tribunal.



Some suggest that the ICTY is not as transparent as it might be because the international community and the public do not put the court under sufficient scrutiny.



“There isn’t enough interest....to make [the court] work as well as [it] should. We sort of muddle on,” said Hoare of Kingston University.



It isn't just judges that are viewed by some as unaccountable. In the case of the SDC minutes, there are those who argue Del Ponte's actions were unjustified



Nice believes there is a conspicuous lack of explanation for Del Ponte's alleged decision not to oppose Serbia's request for confidential status to be granted to the documents.



IWPR sought to discuss the matter with Del Ponte, but a request for an interview was declined.



When asked about decisions that grant confidentiality, Kavran said, “I cannot comment on anything that is not in the public domain. As I said, it’s the judges who make these determinations.”



IMPORTANCE OF SECURING STATE COOPERATION



Critics of the tribunal say it wrongly made evidence confidential in order to ensure the cooperation of governments in the former Yugoslavia.



“The prosecutor clearly chose to define, to see the mission of the tribunal very narrowly,” claimed Donia, referring to what he termed Del Ponte’s “bargain with the devil” over the SDC archive.



“And I don’t think there was any regard here for the public’s right to know, either now or in the future, about the contents of these things.”



However, others have defended Del Ponte, pointing to the difficulties she faced in securing Serbia’s cooperation.



Conflicting interests lie at the root of the problem that international tribunals face when deciding on protective measures for evidence. They must demonstrate clearly what is going on to the societies concerned – be it the former Yugoslavia, Rwanda, or the Democratic Republic of Congo – while at the same time guarding against undermining the national security interests of the state parties involved in the case.



The tribunal is heavily reliant on the states against whose citizens it mounts cases, particularly as it has no powers of arrest and relies on national authorities to hand over suspects.



Some observers can therefore understand Del Ponte’s reported decision not to oppose Serbia’s request for the more sensitive contents of the SDC minutes to be concealed.



“I can understand that, if the lead prosecutor makes an arrangement with a government, no one else is party to that,” said Wilson.



“I don’t know if there should be a right of others to challenge that arrangement or for others to have access to that information, otherwise governments would never release any information at all to tribunals conducting investigations.



“This is one of the great limitations of international justice – the dependency that the courts have upon local governments. I both rue that and find it dispiriting but also understand the predicament [of] people in the tribunal.”



Others agree that in its pursuit of justice, the tribunal had little choice but to black out parts of the SDC minutes at Serbia’s request.



If it was a question of either having to use the SDC minutes under protective measures or having no evidence at all, the tribunal prosecutor may have had little choice.



“I think they have adopted a wise middle course,” said Sluiter of Amsterdam University.



CALLS FOR TIME LIMITS ON CONFIDENTIALTY



Another source of frustration for tribunal observers is that under ICTY rules, once a case is completed, no one is able to request that a confidential document be unsealed, despite the passage of time.



This means it is unlikely that the SDC minutes will be made public any time soon.



“There are good reasons for [confidentiality] but those reasons are diminishing with some of these cases some years into the history books, and some of the defendants having been released,” said Donia.



Similar areas of national law with provisions for confidentiality, such as Britain’s Official Secrets Act, do not allow for information to remain sealed beyond 50 years.



In Serbia itself, documents can remain under wraps for up to 30 years. This is a system that some feel could be adopted by the tribunal.



“At some point, there should be a time limit at least on most matters of a confidential nature,” said Tolbert.



Tolbert said that the secrecy surrounding the SDC minutes had fuelled much inaccurate reporting.



“Given that we are talking about matters held to be confidential and that the parties must be silent on the subject, there are many misconceptions in the press about what happened with the SDC minutes,” he said.



The former deputy prosecutor expressed frustration at being unable to set the record straight.



“The prosecution is placed in a difficult position. With confidential decisions, it cannot explain or discuss even that there was a ruling, much less the nature of the ruling or why the court might have ruled that way or what the prosecution’s position was,” he said.



Natasa Kandic, director of the Humanitarian Law Centre in Belgrade, points to another grave consequence of keeping the documents secret – depriving the victims of the truth of what happened during the Balkan wars.



“We need access to these documents,” she told IWPR.



“It will be a chance for the public and victims to know more about the truth relating to allegations about the Srebrenica genocide. For justice, for the victims, it’s really important to put pressure on ICTY bodies to open more documents.”



For Param-Preet Singh of Human Rights Watch, confidentiality invoked on the grounds of national security interest is “a necessary evil in the business of international justice”.



The ICC and the ICTR also have provisions for confidentiality where a state invokes national security concerns.



However, many critics would like to see this rule changed.



“I think the extremely wide powers given to the court to protect the interest of parties under rule 54 bis…whereby everybody can be kept ignorant of the process and almost all of the decisions made following a secret hearing might usefully be reviewed,” said Nice.



He suggests consideration of a change in the rules that would allow confidential decisions to at least be explained to the extent that they are then challengeable.



“The required legal norm should be that every [confidential] decision should be reduced to a format – for public consumption, or at the very least for detailed consideration by the parties – that identifies the principles of the argument, the principles of the decision and the result of the decision with sufficient clarity that the point can be taken to the appeals chamber,” he said.



But changing tribunal rules requires the agreement of the very people who are entrusted with such decisions, the judges.



According to the ICTY’s rules of procedure and evidence, the rules can be changed only by the unanimous agreement of ten permanent judges; and then only at the suggestion of a judge, the registrar or the prosecutor.



With the tribunal scheduled to close two years from now, some see any sort of rule change as the wrong path to go down.



“At this stage, I’m not sure if this is the solution. I think the solution lies in how the provision is interpreted,” said Singh.



“I think the lesson from the SDC minutes and the wide way in which protective measures were applied in that case… point to the importance of making sure that these kinds of exceptions are exactly that – they’re exceptions and not the rule.”



Whatever one’s view on the need for confidential decisions, the issue remains that unless the SDC documents are opened up before the tribunal closes in two years’ time, the public may never get to see them – or at least not within the next 25 years, after which they may become available in Serbia.



NOT TOO LATE FOR SDC DOCUMENTS



Some tribunal observers believe that cases still pending at the ICTY may hold the key to revisiting the issue of the SDC minutes, and that parties could apply for confidential measures to be lifted.



The prosecution could challenge the documents’ status in the case of the former Serb commander Momcilo Perisic who operated under the authority of the SDC and allegedly committed war crimes against civilians during the 1993 siege of Sarajevo.



However, this is likely to meet with resistance. Still in its pre-trial phase, this case has seen the office of the prosecutor ask Belgrade to release official documents – including military plans and orders – which have again proved not to be forthcoming.



According to Singh, it is crucial to ensure in the future that judges are mindful of the issues raised by the way the SDC minutes were handled.



“I would hope moving forward, tribunals and judges would take that into account... the sense of dissatisfaction [among victims],” she said.



“The decisions they make may reach far beyond the case they’re deciding.”



Another issue that has not been given enough attention is access to such documents after the tribunal’s scheduled closure in 2010. That the archive is mostly digitised should also transfer the emphasis of discussion from where it will be housed to the question of the extent to which it will be publicly available.



“I think a very important issue of the legacy of the tribunal is to establish very concrete rules relating to confidentiality [of] some documents,” said Kandic.



Observers say debates about the fate of ICTY documents seem to have fallen short.



“The public discussion about the archive all focus on where it’s going to be housed,” said Donia. “I have seen nothing in those reports and recommendations which really address the issue of accessibility directly.”



The use of protective measures and, more specifically, the level of confidentiality granted to the SDC minutes have raised persistent questions from the victims of war crimes in the former Yugoslavia as well as parties involved in the expanding sphere of international justice.



The ICC, which is scheduled to hear its first case next month, carries a provision similar to that of the ICTY to grant evidence confidentiality on the grounds of national security. But those making such crucial legal decisions in the future must be mindful of the repercussions of employing protective measures.



As tribunal-watchers observe, while circumstances exist that require documents and proceedings to be granted confidential status, there are legal standards for their use which need to be comprehensively met.



Some legal authorities clearly believe that decisions relating to the SDC documents fell short of such standards, prompting calls for their disclosure from a number of groups, including war victims who feel their concealment may deny them the justice they seek.



If the SDC minutes are not made public before the ICTY’s scheduled closure in 2010, debates about their sealed status and, more generally, the transparency of international justice look set to become more vocal.



Simon Jennings is an IWPR reporter in The Hague.