Dealing with witnesses in war crime trials: lessons from the Yugoslave tribunal.

• Author: Wald, Patricia M.
• Position: International Criminal Tribunal for the Former Yugoslavia

1. THE IMPORTANCE OF WITNESSES IN WAR CRIME TRIALS

   Unlike the Nuremberg and Tokyo war crime trials following World War II, the International Criminal Tribunal for the Former Yugoslavia (ICTY), established in 1993, makes lavish use of witness testimony. Telford Taylor, Chief Prosecutor of the Nuremberg prosecution team, commented that his team members "began to realize that the Teutonic penchant for meticulous record keeping would greatly ease our task of proving the criminal charges"(1) soon after embarking on their task of trying Nazi war criminals. Some team members thought the prosecution's case could be proved largely through "document books" accompanied by explanatory briefs presented to the court;(2) even Justice Robert Jackson, the first Chief Prosecutor, had decided "to put on no witnesses we could reasonably avoid," further suggesting that the defense follow a similar pattern.(3) Ultimately, the prosecution called some--but not many--witnesses, and the defense called more than expected, including the defendants themselves.(4) In fact, in trials against all twenty-four first-tier defendants,(5) there were only thirty-three witnesses called for the prosecution and sixty-one for the defendants.(6) This is not surprising given that by the time the Nuremberg trial began, the Allied Military Command had full access to the German archives, as well as the reports of several national commissions that had heard approximately 55,000 live witnesses to war crimes and atrocities.(7)

   The ICTY began its tenure in a much colder climate. The Bosnian war was not over, and some of the worst atrocities of the five-year conflict (1991-95), including the genocide at Srebrenica, had not yet occurred. Furthermore, the various "sides" (i.e., Bosnian-Muslims, Bosnian-Serbs and Bosnian-Croats)--aided in many instances by outside forces from remnants of the disintegrated Yugoslavia--were still skirmishing for territory that would eventually provide bargaining leverage at the Dayton Peace Accords negotiations in late 1995. The creation of the ICTY in 1993(8) was thus as much a diplomatic as a humanitarian gesture to show the horrified world that the international community would do "something"--even if governments would not intervene militarily to stop the bloodshed. In large part, it was courageous reporters who, by exposing the seemingly continuous stream of unbelievable tales of brutalities committed on innocent civilians, helped make the ICTY a reality.

   Ironically, the ICTY was an empty vessel for its first few years. The first trial (of a relatively low-profile offender whose transfer was negotiated with Germany, where he was already in custody) did not take place until 1996.(9) This was partly a result of the fact that the former Yugoslavia was restructured under the Dayton Accords in late 1995 with no clear winners or losers. Certain areas, such as Serbia, Croatia, and Republika Srpska in Bosnia-Herzegovina, thus became practically inaccessible to the ICTY investigators, who could not obtain critical documents (if they even existed) held by entities unsympathetic to the Tribunal's existence or goals. With time, political transformations in these countries resulted in greater cooperation with the ICTY in securing documents, defendants, and witnesses; the final decisions about their availability, however, still sat in the hands of governmental authorities, which were often less forthcoming than hoped. In all, as the workload of the ICTY rapidly escalated from 1997 onward, prosecutors soon learned they could not depend nearly as heavily on "paper trails" to prove war crimes as their Nuremberg counterparts had. In fact, in most cases they needed substantial numbers of eyewitnesses to prove crimes had occurred, as well as expert witnesses to justify or impugn the defendants' acts. As a case in point, eyewitness testimony from a former member of the Bosnian Serb Army who had personally participated in the execution of thousands of Bosnian Muslim men following the fall of Srebrenica in 1995 was a key part of the prosecutor's case in one trial in which I participated.(10) Witnesses thus became the lifeblood of ICTY trials.

   Statistics support the crucial nature of witness testimony at ICTY trials. From January 1, 1998 to July 1, 2001, 971 victim-witnesses came to The Hague to testify--137 in the period between January and May 2001 alone (at an approximate cost of $1,600 per witness).(11) Furthermore, the use of witnesses increased as work intensified: from July 31, 2000 to July 31, 2001, the Victims and Witnesses Section of the ICTY handled 550 witnesses from thirty different countries, a thirty percent increase over the same period from the previous years.(12) All of these witnesses testified in only eight trials conducted during that year,(13) with the Srebrenica genocide case--in which there was only one defendant--alone involving 103 prosecution witnesses, twelve defense witnesses, and two Chamber witnesses over a ninety-eight day trial.(14)

   Based on my personal experiences as an ICTY judge, it is clear that witnesses have been vital in establishing the occurrence of the crimes committed. Indeed, in some cases there have not been enough witnesses. For instance, in the trial of General Radislav Krstic for crimes following the fall of Srebrenica in 1995, the massacres were so effective that only one or two victims survived. Sometimes, despite extensive rumors of executions, there were no survivors at all and therefore no witnesses. In one example, it was reported that hundreds of bodies of executed Muslims were dumped into bodies of water and washed away down river, but with no survivors the episode could not be corroborated sufficiently to be included in the prosecutor's case.(15) Ultimately, the Balkan offenders--again unlike their Nuremberg predecessors--did not engage in "meticulous record keeping." They left few paper trails behind, and thus witnesses had to be relied upon for most of the evidence at trial.

   Recent developments in the Tribunal's procedural rules have allowed for increased use of affidavits and other alternatives to live witness testimony. The following sections detail the tensions that exist in a judicial proceeding that must balance the promise of a public trial, a full and fair examination of witnesses, and justice for the victims. This paper examines how the ICTY obtains the testimony of witnesses, what the drawbacks of affidavits as compared to live witness testimony are, and how witnesses" credibility is assessed both when they come to court and when they do not appear at the proceedings. Given that the goal of all international criminal proceedings is to bring perpetrators of war crimes to justice in as fair a manner as possible, it is essential that serious consideration be given to the problem of witness testimony in war crimes trials. The difficulties surrounding witness testimony that have emerged at the ICTY should be examined for their applicability to future permanent tribunals.

2. SECURING WITNESSES

   The bulk of ICTY witnesses are victims of war crimes. They are either refugees who have not been able (or do not wish) to return to their home villages and towns, or survivors who have continued to stay on after the Dayton Accords--often in a perpetual state of fear of retaliation if they talk publicly about their experiences. Intimidation, anonymous phone calls, and word-of-mouth threats relayed by third party intermediaries occur with some frequency when the word gets out that someone is coming to testify at The Hague. Unfortunately, the Tribunal has no enforceable subpoena power to compel witnesses to come; we have summons and "binding orders," but they are binding only so far as the witnesses' native countries choose to enforce them. As a result, timid witnesses can simply refuse to come, and indeed they do so, sometimes at the last minute. This aura of fear and apprehension is just as prevalent among defense witnesses as prosecution witnesses. Many potential witnesses simply want to get on with their lives and avoid stirring old antagonisms. Both prosecution and defense lawyers report that, as time passes, witnesses seem more reluctant to come to The Hague to testify. The routine broadcast of Tribunal proceedings into the Balkans and Western Europe probably serves to intensify this trend.

   The Tribunal seeks to counter witnesses' apprehensions in several ways, some of which contend with other human rights guarantees the Tribunal is bound to observe. As a result, there is a decided tension between getting witnesses to testify and preserving the traditional rights of criminal defendants, as reiterated in the Tribunal's Statute and in the European Convention on Human Rights.(16) This section aims to identify the due process costs entailed in witness protection efforts and suggests means for minimizing them.

   1. The Arsenal of Witness Protection Measures

      The Tribunal has a very active Victims and Witnesses Section (VWS) in its Registry (the administrative arm), created to support and protect all witnesses, whether called by the prosecution, the defense, or the Court. It provides counseling, makes travel and lodging arrangements for witnesses coming to The Hague, supervises their visits (neither prosecution nor defense lawyers are allowed to contact witnesses once they have taken the stand),(17) and does its best to ensure witnesses' health, safety, and security. In extreme cases, VWS personnel will go to the witnesses' homes and personally escort them to and from The Hague. There is also a witness relocation program for the few cases where testifying may endanger a witness's safety back home. Even at the present level, the VWS is understaffed and depends in part on donations from individual countries and the European Commission.(18)

      Pursuant to its Statute, the Tribunal is tasked with certain responsibilities for the protection of witnesses, including, but not limited to, in camera...