Judges Change the Rules

In a judicial power-grab of sorts, the tribunal’s judges have decided to give themselves authority to oversee who is brought before the tribunal and, in so doing, to establish a formal check on the prosecutor’s power to indict whomever she wants.

Chief Prosecutor Carla del Ponte has, until now, been vested with complete independence to submit indictments against anyone she believed committed crimes under the court’s jurisdiction.

But in an April 6 amendment to the Rules of Procedure and Evidence, the judges mandated that only indictments concerning “one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the tribunal” would now be confirmed.

Del Ponte was “not informed in advance” about the change to the rules, said her spokeswoman Florence Hartmann.

The new rule, which came into effect on April 14, makes the confirmation of an indictment a two-step process, and significantly increases judicial control over the procedure.

The new process is closer, though not identical, to that envisioned for the International Criminal Court, which requires a pre-trial judge to make a preliminary determination that a case falls within the court’s jurisdiction before the prosecutor begins his or her investigation.

Previously, the tribunal process simply required that when the prosecutor was ready, she would submit a completed indictment and supporting materials to the court. After reviewing it, a judge would confirm any or all of the counts for which he believed a prima facie case existed.

Now, a five-judge “bureau” (consisting of the tribunal’s president, vice-president and the presiding judges of each trial chamber) must determine that an indictment involves a “most senior leader” before it may be sent to the judge for review.

It is unclear how the judges will decide the question of seniority. “What is most senior?” Hartmann asked rhetorically. “We don’t have any more heads of state to indict.” She said Del Ponte would be asking the judges what criteria they plan to use.

The new rule may be seen as another element of the tribunal’s completion strategy, according to which it seeks to finish investigations by the end of 2004, trials by the end of 2008, and appeals by the end of 2010.

By only confirming indictments of the most senior leaders, the judges may help ensure the tribunal will be able to meet these deadlines.

Yet the change is significant because of the extent to which the judges seem to have made the decision on their own, without consulting Del Ponte. And because the latter has said for years that she was focusing her attention on the senior leaders, the judges’ decision to formalise this criteria, and give themselves power to rule on it, is particularly curious.

Tribunal spokesman Jim Landale said that the judges had adopted the new rule in accordance with UN Security Council Resolution 1534, adopted on March 26.

Resolution 1534 calls on the tribunal “in reviewing and confirming any new indictments, to ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the [tribunal’s] jurisdiction”.

Fiona McKay, director of the International Justice Programme at New York-based Human Rights First, told IWPR, “There have been statements by the Security Council indicating there is real pressure for the court to complete its work.”

Landale said that the judges “felt the [tribunal] rules needed to reflect the direction the Security Council wants this institution to focus its energy on”.

But there is some debate about whether the Security Council believed the rules should be altered, or whether it simply wanted the new requirements implemented through existing procedures.

The latter theory was supported by a French ministry of foreign affairs official who insisted that the resolution did not envision a change to the tribunal’s statute or rules.

Three days after the resolution was passed, he said, “The necessary compliance with the completion dates…should not be interpreted as impinging on the principle of the tribunal’s independence and on the separation of [its] functions in accordance with the relevant provisions of [its] Statutes and Rules of Procedure.”

France, a veto-wielding member of the Security Council, held the council’s rotating presidency when the resolution was adopted.

A close reading of reports to and resolutions by the Security Council may provide some insight into the politics behind the new rule.

It was back in June 2002 that the tribunal’s president, prosecutor, and registrar jointly submitted a report to the Security Council laying out their completion strategy. In it, tribunal officials made clear that they would have to focus on the highest-ranking leaders most responsible for crimes if they were to meet their target completion dates.

More than a year later, on August 28, 2003, the Security Council adopted Resolution 1503, which reaffirmed the tribunal’s completion strategy. But while the resolution called on the tribunal to stick to its schedule, it did not mandate how this should be done.

On October 10, tribunal president Theodor Meron and Del Ponte appeared before the Security Council to offer their annual remarks.

In his address, Meron issued a warning of sorts. Because Resolution 1503 did not explicitly identify “the goals to be achieved during the sunset months of the prosecutor’s investigatory functions”, he said new indictments will be submitted “which, according to our present calculations, will inevitably cause a significant additional slippage in the target dates of the completion strategy”.

He said it was “ the prosecutor’s prerogative to select the individuals against whom she will file indictments, and…if the prosecution has sufficient evidence to make a prima facie case, we judges must confirm the indictments….”

He concluded by noting that once indictments are confirmed, the legal process must run its course and due process must be guaranteed.

Del Ponte then addressed the Security Council and verified the “accurate and realistic report of the president regarding the dates for the completion strategy.” She also mentioned that additional investigations, involving approximately 30 high-level individuals, would have to be completed before she could close the indictment phase of her work.

This caused some concern among Security Council members.

On November 4, the US ambassador to the OSCE, Stephan Minikes, made clear that his country, which has a vote on the Security Council, was “surprised” by Del Ponte’s presentation and, referring to the additional investigations, said, “The prosecutor has indicated an approach that complicates and puts at risk the timeline set out in the completion strategy.”

“Our efforts now should be focused on ensuring that only those most responsible face justice in The Hague.”

Just over five months later, the Security Council adopted Resolution 1534, noting “with concern” suggestions that the tribunal might not be able to meet its completion dates, and calling on the court to concentrate only on the most senior leaders suspected of being most responsible for crimes.

Because the resolution was passed under Chapter VII of the UN Charter, it is legally binding.

Putting aside the question of whether the council wanted the focus on senior leaders to be carried out through an amendment to the rules, Hartmann pointed out that Resolution 1534 asked the tribunal as a whole, and not just the judges, to carry out the task.

But it seems that by insisting on enshrining this new requirement in the rules, and giving themselves power to oversee the process, the judges wanted to take matters into their own hands.

Rachel S. Taylor is an IWPR editor in The Hague.