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Who Benefits from Streamlined Indictments?

Tribunal judges claim cuts to indictments will speed up trials - prosecutors fear it will jeopardise their prospects of winning cases.
By Caroline Tosh
Over the last six months, judges at the Hague tribunal have been using their new powers to push for cuts to indictments, causing dismay among prosecutors and survivors' groups alike.



They say they want to ensure “fair and expeditious trials” by asking prosecutors to remove counts or fixing the number of crime scenes in certain trials - which will reduce the volume of evidence presented and court time used.



But critics question their motivation and suggest this is an attempt to rush through trials under pressure from the UN to close the court by 2010.



Prosecutors fear that slicing parts from indictments could impede their ability to prove cases. Some victims have also protested, saying removing certain charges or crime scenes has dashed their hopes of receiving justice.



Rule 73 bis in the tribunal’s Rule of Procedure and Evidence now states that "the trial chamber, in the interest of a fair and expeditious trial, may invite the Prosecutor to reduce the number of counts charged in the indictment and may fix a number of crime sites or incidents…which are reasonably representative of the crimes charged".



This extension to judges' powers came in May 2006, amidst a barrage of criticism of the tribunal for failing to reach any resolution in the case of former Yugoslav president Slobodan Milosevic - who died in March 2006, four years into a highly complex trial.



Prosecutors in the Milosevic trial took more than two years to present their case, hoping to prove a massive 66 counts, including crimes against humanity, charged in relation to conflicts in Kosovo, Bosnia and Croatia - and spanning the best part of a decade.



The complexity of the Milosevic case - which first emerged as three separate indictments - was due to a change in policy after chief prosecutor Carla Del Ponte took up her role in September 1999.



Under the Swiss lawyer, indictments issued at the tribunal began to cover longer time periods and wider geographical areas - in an attempt to prove not just a series of crimes, but the entire political plan that allegedly lay behind them.



With the first indictments against Milosevic in late 2001 - for crimes related to Bosnia and Croatia – Del Ponte unveiled the concept of a “joint criminal enterprise” to forcibly remove non-Serbs from parts of Bosnia, in which she alleged many senior politicians from the former Yugoslavia took part.



Broadening of the scope of indictments in this way has attracted criticism from some parts of the legal community who feel it is over-ambitious and leads to drawn-out proceedings.



While in Bosnia - where civilians bore the brunt of war crimes committed - many have called for charge sheets to be expanded even further.



The recent decision to allow judges to influence indictments has enraged Del Ponte.



In her address to the Security Council in June 2006, she argued that only the council had the power to change the rules and claimed her prosecutorial independence was under threat.



Slicing even one count from an indictment, she warned, could "seriously undermine the prosecution case".



"There must be no justice a la carte," she insisted.



The spat between the prosecutor and chambers continued when in a subsequent interview with IWPR, the tribunal's president Fausto Pocar defended the move and claimed Del Ponte was “completely wrong” in assessing her own powers.



"Once an indictment is drawn up and confirmed by a court, it is for the court to manage the trial, not the prosecutor… And the chamber may decide that the indictment is too broad, which will imply, necessarily, a selection of counts," he said.



Pocar scorned any suggestion that the changes were a reaction to the aborted Milosevic trial or to pressure from the Security Council to meet the 2010 deadline.



Rather, they were made "to ensure that we have trials that are conducted in a reasonable time in compliance with human rights standards that require that a trial not be too long", he said.



Judges first exercised their new powers in July 2006 during the trial of former Serbian president Milan Milutinovic and five other high-ranking Serbian officials accused of responsibility for the forcible transfer and deportation of approximately 800,000 Kosovo Albanian civilians in 1999.



The trial chamber - presided over by Scottish judge Iain Bonomy, whose hard-line approach to trial management earned him the nickname Judge

Dread in the Scottish tabloids - ordered that three crime sites located in Kosovo - Racak, Dubrava and Padaliste - be removed from the indictment.



Judges ruled that the prosecution could argue its case without calling evidence on these three places, where the crimes committed showed no link to forcible transfer or transportations - which together form the crux of the prosecution's case.



Since this order, three more trial chambers have invited prosecutors to chop indictments by at least a third.



Each time, the trial chambers have cited their duty "to ensure a fair and expeditious trial”.



The first request came on August 31 from the trial chamber in the case of Serbian ultra-nationalist Vojislav Seselj - who is accused of taking part in a joint criminal enterprise to create a Greater Serbia.



Prosecutors declined at first, saying this it would not make for a case that was “reasonably representative” of the crimes charged, and would "impede on the prosecution's ability to prove its case".



But after a second request from judges, they agreed to drop five counts, plus charges related to certain places - including Croatia's Western Slavonia region - on the proviso that they could still present related evidence to prove Seselj’s alleged role in the joint criminal enterprise.



The judges agreed and on November 8 ordered that five counts be dropped, and also ruled out the presentation of evidence from another crime site - the municipality of Bosanski Samac - not identified by the prosecution.



According to Bosnian media reports, victims in the town of Brcko - one of the crime sites dropped - came out in protest at the diminished list of charges leveled at Seselj.



Then, on November 20, judges in the trial of Momcilo Perisic - the former Yugoslav Army chief charged with crimes in Sarajevo, Zagreb and Srebrenica - also invited the prosecution to suggest cuts to the indictment.



So far, prosecutors have resisted, citing reasons of “prosecutorial policy" and "prosecutor's independence".



Now judges in the trial of Croatian generals Ante Gotovina, Mladen Markac and Ivan Cermak, have made a similar request.



Narrowing a case to ensure an expeditious trial is an approach endorsed by human rights groups.



A report published by Human Rights Watch last month, which looked at lessons to be learnt from the Milosevic trial, pointed to the broad scope of the indictment as being a major factor in slowing proceedings.



It suggested that "a single, more streamlined indictment…with fewer crime scenes and fewer charges” would have been more efficient.



This approach was taken in the trial of Saddam Hussein, hanged last month after being convicted for crimes against humanity at an Iraqi war crimes court.



While his flawed trial and controversial execution have provoked widespread criticism, the clearly defined case against him - related to the killing of 148 men and boys in the Shia Muslim town of Dujail in 1982 - led to a conviction just a year after the case began.



But the limited indictment and subsequent execution mean Saddam won’t face further charges - such as those related to the “Anfal” campaign against Iraq's ethnic Kurds in the late Eighties, that resulted in some 100,000 deaths - a development which has left survivors disappointed.



Choosing which crimes to prosecute is always tough call for prosecutors, as they not only have to explain their choice to disappointed victims, but also shoulder the blame if no conviction is made.



If judges are allowed to “intrude in the area of what should be the prosecution's bailiwick” by altering indictments - as one prosecutor put it - could this make cases harder to prove?



Olga Kavran, the spokesperson for the Office of the Prosecutor, OTP, says that while the prosecution has opposed judges’ calls to slash indictments, the cuts made in the Seselj and Milutinovic cases have caused no problems so far.



She admits the OTP has received complaints from victims concerned about the cuts, but says that they often - understandably - question the content of indictments.



"Victims have been through so much. They would like to see crimes prosecuted as far as possible, and are never fully satisfied with criminal proceedings, even in their fullest version,” she said.



But while the prosecution opposes the judges’ cuts, many defence lawyers see the sense in them.



Michael Karnavas, the lawyer of former Bosnian Croat leader Jadranko Prlic and president of the Association of Defence Council, ADC, says that vague, overloaded indictments at the tribunal have caused problems for the defence, who are often left unsure of exactly what it is they are defending against.



Indictments frequently contain a long historical context, with defendants charged in several modes of liability by prosecutors hoping something will stick, he says.



“The defence must defend against every single word that's in there, and it takes up a lot of time," he said.



He has repeatedly called for a reduced indictment in the trial of Prlic and his five co-defendants - charged with taking part in a joint criminal enterprise to expel non-Croats from parts of Bosnia - arguing that the case is too broad.



Karnavas says that judges are in part to blame for overcomplicated cases because of their "loose approach" when first confirming charges.



"From the beginning, they should have been insisting on much tighter indictments," he said.



Perhaps it is with this in mind that prosecutors at the first permanent war crimes court, the International Criminal Court, ICC, have set out their policy – which reflects the court’s statute.



They have adopted a streamlined approach to investigations and prosecutions, and aim to prosecute defendants by selecting "a limited number of incidents" and calling "as few witnesses as possible” to testify, said an ICC spokesperson.



But even as the ICC prepares to bring its first case against Congolese war crimes suspect Thomas Lubanga - on charges related to using child soldiers -there are rumblings from human rights groups that the indictment is far too narrow.



While ICC investigations into the situation in DR Congo are ongoing, investigations into other alleged crimes committed by Lubanga have

been frozen for now. If protests gather momentum, prosecutors may come under pressure to bring more charges against him at a later date.



Caroline Tosh is an IWPR reporter in The Hague.

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