2.6 Tipos de investigación en resolución de problemas
2.6.3 Factores que influyen en la resolución de problemas en las clases
Not all of the mysteries of preliminary examinations may be fully solved. But these two volumes mark an attempt to de-mystify many of the strengths and weaknesses of preliminary examination practice in the area of core international crimes. It is the first of its kind. It is our hope that the volumes offer new insights to understand the magic, mystery and mayhem of preliminary examinations, especially at the ICC, and to address some of the existing challenges.
Back now, broom, into the closet! Be thou as thou wert before!
Until I, the real master
Part 1
The Practice of Preliminary Examination:
Realities and Constraints
2
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2.Constraints and Quality Control in
Preliminary Examination:
Critical Lessons Learned from
the ICTY, the ICC, the ECCC and
the United Kingdom
Andrew T. Cayley*Selecting criminal cases for investigation and prosecution in an interna- tional jurisdiction has never been so important nor fraught with such risk. When investigations commence, victims expect justice, and that expecta- tion grows very quickly. Successful investigations and prosecutions pro- mote support and provide the international system with a source of legiti- macy. Each time there is a slip or falter in an international investigation or prosecution, it risks making the news, unlike with most domestic prosecu- tions. When there is success, confidence in the system grows.
The purpose of preliminary examination at the International Crimi- nal Court (‘ICC’) is a specific one: “The goal is to collect all relevant information necessary to reach a fully informed determination of whether there is a reasonable basis to proceed with an investigation. If the Office [of the Prosecutor] is satisfied that all the criteria established by the Stat- ute for this purpose are fulfilled, it has a legal duty to open an investiga- tion into the situation”.1 This process is unique to the ICC. The ad hoc tribunals and hybrid courts did not adopt this practice in their governing instruments but they all engaged in some form of pre-investigative activi-
* Andrew T. Cayley CMG QC FRSA is the Director of Service Prosecutions of the United
Kingdom. He was the International Co-Prosecutor of the ECCC from 2009 to 2013, Senior Prosecuting Counsel at the ICC from 2005 to 2007, Senior Prosecuting Counsel and Pros- ecuting Counsel at the ICTY from 1996 to 2005 and Defence Counsel at the ICTY and SCSL 2007 to 2009. The views expressed are his own and do not represent those of Her Britannic Majesty’s Government or those of the ICC or United Nations.
1 Office of the Prosecutor, ICC (hereinafter ‘OTP’), Policy Paper on Preliminary Examina-
ty to decide what should or should not be investigated and subsequently prosecuted. Pre-investigative activities, both at the international and do- mestic level, are vital because, as has been stated, a weak start often makes for “crooked and broken war crimes cases which undermine trust among victims, donors and the public”. At the Peace Palace conference on which these volumes are based, Professor Morten Bergsmo spoke of the moral strength required in the early stages of any international case and of the need for the truth to be spoken. Narrative can only have effect when all senior practitioners speak out themselves and recall their own experi- ences, mistakes as well as the consequences of success and failure in this most challenging international arena.
The aim of this chapter is to bring to bear my personal experiences and to examine the practices at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) and domestically in the United Kingdom in the face of the ICC preliminary examination in respect of the allegations against UK forces in Iraq, to see what lessons can be learned for the future both for the ICC and for domestic jurisdictions addressing these core interna- tional crimes.
2.1. Pre-Investigative Activity at the ICTY
There is scant provision in the ICTY Statute or in its Rules of Procedure and Evidence that governs the pre-investigative activity of the Office of the Prosecutor (‘OTP’). Article 18(1) of the Statute states that: “The Pros- ecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organisations. The Pros- ecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed”.2 So the ICTY Statute identi- fies two bases on which to initiate investigations: the first is grounded in the Prosecutor’s inherent powers and the second is on the basis of infor- mation received from outside sources, with the Statute providing a non- exhaustive list of those sources. While it is not expressly stated, the ex officio power vested in the Prosecutor appears to relate to preliminary investigations initiated upon the basis of information gathered by the OTP
2 Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May
1993, amended 17 May 2002, Article 18(1) (‘ICTY Statute’) (http://www.legal-tools.org/ doc/b4f63b/).
itself, as opposed to information provided to the Prosecutor by outside bodies. There is no further explanation of what “a sufficient basis to pro- ceed” means and there are no express provisions either in the Statute or the ICTY Rules of Procedure and Evidence which address the mechanics or conduct of the ICTY’s pre-investigative process.3 As long as the pro- posed investigation targets crimes which fall within the jurisdiction of the ICTY, it is admissible.4 No judicial or other oversight was provided for in the pre-investigative processes at the ICTY and there was no written OTP policy, as far as I recall, in the way that situations were selected for inves- tigation. So a very great deal of unrestrained discretion was vested in the ICTY Prosecutor at the pre-investigative stage. From my personal recol- lections of the early days of the ICTY, I know that the Blaškić case, for example, commenced as a result of a Canadian prosecutor working for the OTP reading a book written by the former commander of the British Cheshire Regiment deployed to Bosnia-Herzegovina as part of the United Nations Protection Force (‘UNPROFOR’) in 1992.5 The book describes, amongst other things, the Cheshire Regiment’s presence as part of UNPROFOR in Central Bosnia and its challenging role in the Mus- lim/Croat conflict in that area between 1992 and 1993. It was in the course of this conflict, within the wider Bosnian conflict, that the allega- tions in Blaškić arose. In hindsight, it might seem somewhat surprising that a semi-autobiographical book, by a British professional soldier, be- came part of the basis for a major international criminal investigation. The most pertinent observation I can make here is that I recall Bosniak repre- sentatives to the ICTY, in the mid-1990s, expressing a degree of surprise that the ICTY had decided to prioritise an investigation into this particular case. Undoubtedly, serious crimes had been committed in Central Bosnia by the Bosnian Croat military forces led by nationalist political figures, but crimes that are more serious had also been committed elsewhere in Bosnia-Herzegovina during 1993 and it might have been more prudent to first prioritise other areas of Bosnia-Herzegovina for investigation. The centrepiece of the Blaškić investigation concerned the murder of civilians
3 See ibid., Article 18; and ICTY, Rules of Procedure and Evidence, revision 50, adopted 11
February 1994, amended 8 July 2015, IT/32/Rev.50, part 4 (this part of the Rules only ad- dresses how an investigation should be conducted) (‘ICTY Rules rev. 50’) (http://www. legal-tools.org/doc/30df50/).
4 ICTY Statute, Article 1, see supra note 2.
5 Lieutenant Colonel Bob Stewart, Broken Lives: A Personal View of the Bosnian Conflict,
on 16 April 1993 in the village of Ahmići by Bosnian Croat armed forces where at least 103 Bosnian Muslims had been killed, many of whom were women, children and the elderly.6 The accused, Tihomir Blaškić, was a colonel in the Bosnian Croat armed forces and a local commander at the time of the offences.7 In 1995, when this investigation commenced, there were certainly crimes that were more serious, or patterns of crimes com- mitted elsewhere in Bosnia-Herzegovina that required investigative priori- ty. In addition, there were individuals who bore a much greater responsi- bility for serious violations of international humanitarian law than Blaškić. In July 1995, over 8,000 men and boys were murdered in and around Sre- brenica.8 The end of the siege in Sarajevo led to between 1,000 and 1,500 deaths.9 Colonel General Ratko Mladić and Radovan Karadžić bore far greater responsibility for mass crimes in Bosnia-Herzegovina than Blaškić. Of course, it is easy to be an armchair critic, looking back at the early fragile days of the ICTY. We all have the benefit of the trial and appellate proceedings at the ICTY against 154 individuals and the passing of over 20 years. These two decades have shed considerable light on what were the worst crimes and which individuals committed the majority of those crimes. But in those early days of the Tribunal there was an agenda being pressed, by some, that all the ethnic groups of Bosnia-Herzegovina were equally responsible for the crimes committed. Therefore, there was a need for an equality of effort into the investigation of crimes allegedly perpe- trated by the Serbs, the Muslims and the Croats. This working assumption was a simplistic approach to a highly complex war and case selection. It was also a mistake, since proven by the fact that in the few cases involv- ing a Bosnian Muslim accused, there was either a very low sentence for those convicted (thus manifesting a low level of responsibility) or a com-
6 Charles McLeod, European Community Monitoring Mission, Report on Inter-ethnic Vio-
lence in Vitez, Busovača and Zenica in April 1993, 15 May 1993, Appendix 2 to Annex N to ECMM H/S 720; ICTY, Prosecutor v. Tihomir Blaškić, Trial Chamber, Judgment, 3 March 2000, IT-95-14-T, paras. 416–17 (http://www.legal-tools.org/doc/e1ae55/).
7 Ibid., para. 9.
8 ICTY, Prosecutor v. Radovan Karadžić, Trial Chamber, Judgment, 24 March 2016, IT-95-
5/18-T, para. 5573 (http://www.legal-tools.org/doc/173e23/).
9 Jan Zwierzchowski and Ewa Tabeau, The 1992-95 War in Bosnia and Herzegovina: Cen-
sus-based Multiple System Estimation of Casualties’ Undercount, 1 February 2010, p. 20 (http://www.legal-tools.org/doc/ba5283/).
plete acquittal.10 Of the 161 persons indicted by the ICTY, only six were Bosnian Muslims – less than 0.5% of the total individuals indicted.
At first, the transition from an investigation to an indictment and charges at ICTY was a very brief and rudimentary legal process which was often a precursor to a highly complex and lengthy trial. In order for the Prosecutor to file an indictment, he or she simply had to be satisfied that there was sufficient evidence to provide reasonable grounds for be- lieving a suspect had committed a crime within the jurisdiction of the court.11 An indictment was prepared and then sent to a judge via the Reg- istry with supporting material (which was often a limited bundle of evi- dence) to provide foundation for the charges.12 The judge, who applied the same evidential standard as the Prosecutor, then heard the Prosecutor in a closed hearing and either confirmed or dismissed each count in the in- dictment.13 Rule 47 of the Rules remained unchanged from 11 February 1994 (first adopted set of rules) until 25 July 1997, when the rule was heavily modified by the ICTY Rules Committee.14 The most significant addition to Rule 47 was a new Rule 47(C), which read:
(C) The reviewing Judge may:
(i) request the Prosecutor to present additional mate- rial in support of any or all counts;
(ii) confirm each count; (iii) dismiss each count; or
(iv) adjourn the review so as to give the Prosecutor the opportunity to modify the indictment.
The two emphasised new sub-provisions were significant because, for the first time since the ICTY’s establishment, the confirming judge could demand that the Prosecutor further substantiate the allegations he was making with additional evidence and the judge could, in effect, re-
10 Sefer Halilović: acquitted, Enver Hadžihasanović: 5 years imprisonment, Amir Kubura:
2.5 years imprisonment, Naser Orić: acquitted, Rasim Delić: 3 years imprisonment (Delić died before his appeal was fully heard and determined and the trial judgment was held to stand.) Mehmed Alagić died before the beginning of his trial.
11 ICTY Statute, Article 18(4), see supra note 2; and ICTY Rules rev. 50, Rule 47(B), see
supra note 3.
12 Ibid.
13 Ibid., Rule 47(E) and (F).
14 ICTY, Rules and Procedure of Evidence, revision 11, adopted 11 February 1994, amended
25 July 1997, IT/32/Rev. 11, Rule 47(E) and (F) (http://www.legal-tools.org/doc/30df50/) (8 July 2015 amended version).
quire the Prosecutor to go away and amend his indictment to more accu- rately reflect the evidence presented. In my opinion, and based on my own experiences at the ICTY between 1995 and 2005, by 1997, the judges had been increasingly aware that indictments were being confirmed at a fairly low evidential threshold. They had also known that, post confirmation, a substantial amount of investigation still needed to be done to ensure that cases were trial ready and that charges could be proven against an accused person beyond reasonable doubt – the evidential standard at trial as re- quired by the Rules.15
For a prosecutor, confirming an indictment at the low evidential standard of “reasonable grounds to believe” means that if your defendant is arrested the day after confirmation, you may find yourself imminently going to trial with a case that you may not able to prove beyond reasona- ble doubt – which quite rightly is the evidential standard for guilt at trial proceedings. Blaškić, in which I was junior counsel, is a case in point. Blaškić was originally named in an indictment confirmed on 10 Novem- ber 1995 with five other co-accused persons, including Dario Kordić, Mario Čerkez, Zlatko Aleksovski, Ivan Santić and Pero Skopljak.16 In November 1995, I recall, there was no immediate expectation of the pend- ing arrest of any of the accused. Blaškić, although a Bosnian Croat, was by 1996 a senior officer in the Croatian army serving in the Republic of Croatia. Threats to withhold international and military financial aid to the Republic of Croatia, if it did not co-operate with the ICTY, led to Blaškić’s “voluntary surrender” to the Tribunal far quicker than anyone anticipated.17 After his voluntary surrender on 1 April 1996, Blaškić was immediately transported to the ICTY. On 3 April 1996, he pleaded not guilty to all 13 counts of the initial indictment. Considering that others on the indictment were still at large, and in order for the trial to progress, the prosecution moved to separate his indictment from the other accused. Six additional counts were added to more appropriately reflect Blaškić’s al- leged conduct. The first amended indictment was issued on 22 November 1996 and, on 4 December 1996, Blaškić pleaded not guilty to all counts against him in this new indictment.
15 ICTY Rules rev. 50, Rule 87(A), see supra note 3.
16 ICTY, Prosecutor v. Kordić et al., OTP, Indictment, November 1995, IT-95-14-I (http://
www.legal-tools.org/doc/0e94ad/).
17 Philip Shenon, “Croatian General Plans to surrender to Hague Tribunal”, in New York
A plea of not guilty was registered to the second amended indict- ment, filed on 25 April 1997 with a corrigendum filed on 16 March 1999. Although all counts still stood, the second amended indictment contained more specific allegations as to the scope of his alleged culpability in both temporal and geographical terms, as well as more specific allegations with regard to the type of responsibility with which he had been charged. This amended indictment initially charged the accused with one additional count (count 2, devastation not justified by military necessity); however, this count was withdrawn by the prosecution because it had been already covered in the other areas of the same indictment. The reality is that in April 1996, when Blaškić ‘voluntarily surrendered’, the OTP was not ready for trial. Investigations furiously continued, not only through both indictments, but also well into the trial which began in June 1997. I recall the Senior Prosecutor, in his typical stoic fashion, likened the prosecution of this case to assembling a Jumbo jet while at the same time piloting it across the Atlantic. In all fairness, in 1995 the ICTY and its Prosecutor were under immense pressure to issue indictments. Accounts of on-going serious violations of international humanitarian law in the former Yugo- slavia were still being widely reported by the UN and non-governmental organisations.18 The Tribunal had not achieved very much since its estab- lishment in May 1993, although initial expectations – by a paralysed in- ternational community – were unrealistically high.19 Later the ICTY would deliver in much fuller measure, eventually trying both Radovan Karadžić and Ratko Mladić – the two individuals for whom truly the Tri- bunal was established. Hardly anyone, including myself, believed in 1995 that those trials would ever take place.
2.2. The Creation of the Khmer Rouge Tribunal and