Lawfare as a Means of Defining Military Doctrine in the 21st Century, IDF as an example to the CDF in the Wake of the ITFY in the Hague
By dr. Peter Anthony Ercegovac
& Marinko Tomašić
ICTY – Lawfare, Secrecy and Hearsay Rules
There is a number of factors that make the ICTY more suspect than many domestic court systems. These include the absence of a police arm- the ICTY is forced to rely on reports from intelligence services of various countries who by omission of intelligence can create a misleading picture that accords with their state’s foreign policy objectives. Former ICTY spokesperson, Florence Hartmann, noted that most of Military Analyst Teams would shift through the evidence and influence who would be charged and for what were mostly staffed by UK and US military analysts.[1] It also becomes a political actor by virtue of the virtual trials of cooperation with a non-complying state.[2] Add to this that the tribunal is also under pressure to justify its budget, especially in the earlier years and consequently targeted states become more likely to comply to fill its cells.[3] The financial and time constraints as well as performance pressure (especially after the death of Milošević), can also impact the exit strategy- the most notable example is the decision not to charge Ratko Mladić with offences committed in Croatia.[4]
The adoption of the civil law approach to hearsay evidence also contributes to the potential for lawfare in the ICTY. While Stephen Rapp, former Chief Prosecutor in the Prosecutor v. Charles Taylor trial notes that hearsay is essential to establishing accountability for high level civil and military leaders in cases where the crimes are committed in a widespread and systemic manner,[5] but this plays easily into perceptions that the Hague Tribunal is a political court, especially if too low a threshold is set for hearsay evidence. Indeed, a former ICTY judge has herself expressed concerns about the ICTY’s rules of evidence, particularly a move away from live testimony to greater use of depositions and audio-visual presentations. She also expresses doubt that judges do not need the same restrictions and juries, with concern over the reputational effect on the tribunal’s legacy:
Donning a robe does not enshroud its occupant with a seventh sense of whether something written on paper is true or false. In that sense, the judge is on a par with the juror, who must rely on his or her human instincts in evaluating the person doing the testifying. To permit critical material to be admitted without the ability to directly view and question the witness goes to the heart of the process and threatens to squander the ICTY’s most precious asset–its reputation for fairness and truth seeking.[6]
In this sense her Honour reflects a common law approach, where the hearsay rule operates to exclude hearsay except in a number of exceptions, because a key aspect of a trial is cross-examination in which you can question the witness and observe their demeanour to assess their understanding, truthfulness and memory. The absence of the ability to cross-examine may undermine a defendant’s right to a fair trial. By contrast, the civil law allows all evidence because it considers that the truth cannot be established otherwise.
The trial chamber ruled in the Tadić case, judges found that while balancing probative and prejudicial effect of hearsay evidence before ruling on its admissibility may be relevant in a jury trial, in a bench trial, the judges’ training and experience meant they could be trusted to determine the evidence’s relevance and probative value and accord it the appropriate weight in their deliberations.[7] Evidence probative if at a minimum is reliable.[8] In making this ruling, the trial chamber relied on rule 89 that states the tribunal may admit any evidence it deems to have probative value and noted sub rule 89(D) allows admitted evidence on basis of relevance to be later excluded.
In Prosecutor v Aleksovski, Judge Robinson in dissenting opinion took a purposive approach in interpreting the statute. He counselled against too low a threshold for admissibility holding that the rules do not say that any evidence that is relevant and probative is admissible and cited rule 95 as an instance where evidence obtained by methods that throw doubt to its credibility or damage integrity of proceedings would be excluded despite its relevance and probative value.[9] He also pointed to rule 90 as evincing an intention of the primacy of direct witness testimony in chamber with only two exceptions being deposition pursuant by order of the Chamber or a video-conference authorised the chamber.[10] His Honour also noted that the primacy of oral evidence was reflected in the safeguards of rule 94bis,[11] if expert evidence is to be admitted without further cross-examination.[12] His Honour reaffirms the primacy of the right to cross-examine as a keystone of legal systems around the world and its breach may breach International Covenant on Civil and Political Rights.[13]
The Tribunal is also at risk of veering towards a utopian jurisprudence that displaces the elements of proportion and distinction with a criteria that equates the incidence of collateral damage with war crimes. This is precisely what we see in the Gotovina trial and judgement. One of Gotovina’s attorneys Payam Akhavan has expressed reservation about a ruling which effectively breaks the nexus between crimes against humanity and the laws of armed conflict.[14] This allows a commander, who despite obeying humanitarian laws, ‘can still be held criminally liable by re-categorisation of his conduct.’[15] In Gotovina’s case, the issue contested is the charge of ‘forcible displacement’ and the ruling effectively makes no distinction between occupation forces forcing out a population, and a population fleeing an oncoming army during combat. Conventionally, occupation forces would be held to higher standard than forces in combat who would instead be assessed against the criteria of proportionality and distinction. Akhavan argues that the tribunal has misread the silence on occupation element in the Stakić definition of deportation as dispensing with the requirement of occupation.[16] The Gotovina appeal is also instructive of the danger of utopian jurisprudence and its negative implication for bona fide military actions. His appeal states that 1st instance judgement ‘imposes [a] standard so exacting that it renders lawful warfare impossible’. Regarding the unlawful shelling charge, the defence noted that the trial judges concluded that any shell that fell outside 200m from a military target was therefore targeting a civilian area and hence unlawful. They suggested that the judges erred in law as they imported this 200m standard after the completion of litigation without an opportunity for either litigant to respond and in doing so denied procedural fairness. Gotovina’s defence team also noted that the judgement found 95% of the shells fell on military targets, of which the remaining 5% fell into empty fields – yet the trial judges held that 20,000 civilians fled due to the 5% of shells that missed the military target, most falling into empty fields, and not due to the local Serb leadership ‘evacuation orders or the propaganda-induced fear of a Croatian army victory’.
One of the more under-analysed aspects of Croatia’s War of Independence, as well as the corresponding Bosnian war and to a lesser extent the Kosovo war, is the impact guerrilla forces have in not just military terms but legal consequences, especially with respect to the calculus of distinction and military necessity. Indeed, parallel with the conventional war, the aforementioned conflicts, particularly in Croatia and Bosnia, involved large numbers of militia that interspersed easily with civilian populations. These guerrilla militias are integral to the ‘Chetnik’ tradition that dates back to the First and Second World Wars where the guerrillas intermingled with civilian populations. This brings to mind the Article 37(1) of Additional Protocol I that prohibits perfidy, including feigning surrender.[17] The incident that comes to mind is the controversy surrounding Sijekovci. The potential issue is one of distinction with regards to an irregular force employing perfidy that backfired and may account for the disputed accounts. But it also points to the inherent evidential and propaganda issues that a military combating asymmetric forces has to face.
Conclusion Part I
Lawfare can have both positive and negative consequences. If misused, it can backfire as it did for Serbia in the Ganić case. However, it can be a valuable tool for ensuring accountability and providing deterrence for future military actions- Croatia’s success in the ICJ to date, Croatia’s success in the European court of Human Rights in the Blečić case,[18] as well as the legal actions taken by Serbian POW camp and like victims demonstrate the positive role of the law. The negative is demonstrated by Gotovina case where Croatia has failed to assist Gotovina’s attorneys nor plead their national security cause in deference to EU ambitions- contrast the success of Serbia in getting secret SDC minutes redacted.
To assist Croatia’s legal capabilities, it would be recommended that Croatia adopt some elements from the common law system, particularly with regard to rules of evidence because as some of the most robust legal systems in the world, US, UK and Australia, are common law systems. In becoming a hybrid system it will allow more Croatian attorneys to adjust seamlessly to the international legal arena. Also a system of military justice modelled along the lines of JAG would help inculcate a robustness and independence to military justice which would allow international confidence in the bona fides of local prosecutions, but also remove any scope for confusion or misinterpretation as to the lines of command as arguably happened in the Gotovina case with respect to military police. Finally, also of assistance would be a lustration bill that would help weed out inefficient justices who are likely prone to political interference, with re-admittance in certain exceptions on a case by case basis and involving a truth and reconciliation commission. Relaxing admission requirements to the Croatian bar to lawyers in the diaspora would also help the judiciary not only in terms of expertise (especially those from common law jurisdictions), but also in terms corporate culture and cultivating a culture of independence from the other branches of government.
(Nastavit će se...)
[1] Florence Hartmann, Peace and Punishment: The Secret Wars of Politics and International Justice (Flammarion, 2007) 103.
[2] Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (Cambridge University Press, 2009) 9.
[3] Ibid 81.
[4] Daily tportal.hr ‘Brammertz: War crimes in Croatia excluded from Mladic indictment’ tportal.hr (online) <http://daily.tportal.hr/131110/Brammertz-War-crimes-in-Croatia-excluded-from-Mladic-indictment.html>.
[5] Angela Stavrianou, ‘Admissibility of Hearsay Evidence in the Special Court for Sierra Leone’ on Centre for Accountability and Rule of Law, Articles (9 March 2010) <http://www.carl-sl.org/home/articles/383-admissibility-of-hearsay-evidence-in-the-special-court-for-sierra-leone>.
[6] Patricia M. Wald, ‘ICTY Judicial Proceedings —- An Appraisal From Within’ (2004) 2(2) Journal Of International Criminal Justice 466, 471.
[7] Prosecutor v Tadic (Decision on Defence Motion on Hearsay Dated) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-94-1 5 August 1996) [17].
[8] Prosecutor v Tadic (Decision on Defence Motion on Hearsay Dated) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-94-1 5 August 1996) [15].
[9] Prosecutor v Aleksovski (Decision on Prosecutor’s Appeal on Admissibility of Evidence) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-95-14/1-AR73 16 February1999) [6] (Judge Robinson).
[10] Ibid [10].
[11] Ibid [17].
[12] Rule 94bis sets out special procedures if expert evidence is to admitted without calling the expert to testify in person and includes time limits for disclosure of expert evidence to opposing party as well as for opposing party to indicate acceptance or request cross-examination of the expert.
[13] Ibid [28(iv)(e)].
[14] Payam Akhavan, ‘Reconciling Crimes Against Humanity with the Laws of War’ (2008) 6 Journal of International Criminal Justice 21, 31.
[15] Ibid 35.
[16] Ibid citing Prosecutor v Stakic¤ (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-97-24-A, Appeals Chamber, 22 March 2006), 278: the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure border or, in certain circumstances, a de facto border, without grounds permitted under international law’
[17] Art 37. Prohibition of Perfidy
1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:
(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.
2. Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.
[18] Blecic v Croatia no. 59532/00 29 July 2004; case dealt with property acquisition by the state and redistribution.