>
>The Times
>June 25 1996
>
>OPINION
>
> Geoffrey Robertson, QC, criticises the Hague Tribunal
>
> War crimes deserve a fair trial
>
>
> Antonio Cassese hit the headlines at the recent international
> conference on the Dayton accords by urging postponement of the
> Bosnian elections until Radovan Karadzic and General Mladic have
> been arrested as alleged war criminals. He further demanded that
> Serbia be expelled from the Olympic Games in Atlanta unless it
> helped to arrest the two accused men. Coming from a distinguished
> Italian legal academic, these comments are worth pondering: but
> since Professor Cassese is the Chief Justice of the Court before
> which the Bosnian Serb leaders are to be tried, his prosecutorial
> zeal poses more serious questions.
>
> The only basis upon which the world community can demand that
> Mladic and Karadzic be surrendered for trial is the guarantee that
> they will be tried fairly by impartial judges. The Hague tribunal
> was established by the United Nations to that end - the first
> international court since Nuremberg, and avowedly a model for a
> future world court.
>
> This ideal offers the greatest hope for human rights in the 21st
> century, but it is a hope which hinges on the Hague tribunal's
> success. If it falters, those hostile to the supremacy of law over
> realpolitik (notably the diplomats of France, Britain and China, and
> all countries led by potential defendants) will ensure that the
> Nuremberg ideal is buried for another half century.
>
> But what constitutes "success"? In the long run, only trials which
> conform to the most rigorous standards of fairness. Nuremberg's
> "success" was in large measure due to the fact that many charges
> were found unproven and three of the defendants were acquitted. Its
> presiding judge, Lord Justice Geoffrey Lawrence, remained
> publicly and resolutely impartial.
>
> In many respects the tribunal in The Hague is an advance on its
> Nuremberg predecessor, notably by abjuring the death penalty, by
> making better provisions for the defence, and by providing a right
> of appeal. But most notably lacking among the 11 judges is relevant
> or recent experience in the defence of persons accused of crime.
>
> This may partly account for the first unhappy ruling of the panel
> trying Dusko Tadic. It decided by a majority (the presiding
> American judge and her Malaysian colleague) to abandon the
> standards set by European Court of Human Rights and to deny the
> defence the right to know the names (or even the nicknames) of key
> witnesses.
>
> Sir Ninian Stephen (formerly of the Australian High Court)
> forcefully dissented from the majority decision, which is a woeful
> piece of jurisprudence. It misconstrues the statute, misunderstands
> precedents, and constantly misdescribes the judicial function in a
> criminal trial as "balancing" the fundamental rights of defendants
> against prosecution convenience. The prospect that a defendant may
> be imprisoned for life on the sole testimony of a witness whose
> identity he is not allowed to know, it justifies on the grounds that
> crimes against humanity are "horrific" and in any event "the
> international tribunal is, in certain respects, comparable to a
> military tribunal, which often has limited rights of due process and
> more lenient rules of evidence".
>
> These arguments are unacceptable. The more "horrific" the crime,
> the more due process is necessary. And the belittling comparison
> with military tribunals (many of which are looking to this body to
> improve their standards) is astonishing. How can the Hague tribunal
> serve as a model for a world court if it sets low standards of
> fairness?
>
> The court's frustrations are understandable: it lacks funding for a
> proper witness protection scheme and must suffer Nato's
> infuriating reluctance to arrest suspects. Last year, Professor
> Cassese, the tribunal president, called for a "programme of
> indictments" to "meet the expectations of the Security Council and
> of the world community at large" - hardly the language of judges
> whose duty is not to act as avenging angels but to do justice though
> heavens fall.
>
> No informed visitor to The Hague can do other than admire the
> work being done by the prosecutors, and Cassese's Appeal Chamber
> has already produced one formidable judgment which makes
> important contributions to international law on war crimes. But his
> is a court without legal critics: no complaint about its conduct may
> be made to the Human Rights Committee in Geneva or to the
> European Court, and human rights lobbies have tended to look the
> other way.
>
> Not so Radovan Karadzic, who has been watching the televised trial
> of Dusko Tadic and has been telling journalists (who find him so
> much more easily than Ifor soldiers) that he will not attend The
> Hague because his trial would not be fair. That is a prospect against
> which all precautions must be taken when the evidence for his
> "international arrest warrant" is publicly unveiled on Thursday.
> This occasion must not smack of a show trial in absentia, or suggest
> that his guilt is as taken for granted by the court as it already is by
> the media. After all, the "command responsibility" principle upon
> which he is indicted was formulated in the course of convicting and
> executing General Yamashita for a crime history now suggests he
> did not commit.
>
> There is much at stake. This tribunal is the model which either
> proves or disproves the case for a world criminal court - that great
> millennium project for the end of a century in which (so far) some
> 160 million human beings have died in war. It would have no
> shortage of defendants: whether or not Pol Pot is dead there is Idi
> Amin in Saudi Arabia, Colonel Mengistu in Zimbabwe and "Baby
> Doc" Duvalier in France, not to mention others. They will keep - so
> long as Professor Cassese and his fellow judges can keep an open
> mind about the guilt of Karadzic and Mladic.
>