Global Policy Forum

By Rachel S. Taylor*

The tribunal is breaking new legal ground with its unique mix of common and civil law, but the process is difficult and often misunderstood.

If Slobodan Milosevic were being tried in a United States court, the current debate about his right to defend himself would simply not be taking place. Instead, the former Yugoslav president would need to show he understood the charges against him and knew the risks of serving as his own lawyer, and would have to waive his right to counsel. US judges would then almost certainly have to allow him to do this. If he were being tried at home in Serbia, there would be no dispute since he would not have been given the chance to represent himself in the first place. Back in Belgrade, people accused of crimes that carry sentences longer than ten years are legally required to have a lawyer.

It is only here in The Hague that the question of Milosevic representing himself could become such a controversial issue, as the International Criminal Tribunal for the Former Yugoslavia, ICTY, is a place where two of the world's major legal traditions - common law and civil law - meet to form a unique framework. However, the system can often resemble a head-on collision rather than a harmonious union, and the increasingly controversial Milosevic trial is just one example of the difficulties experienced by a court that is trying to accommodate two different legal traditions under one roof.

This experiment has made clear just how much public perceptions of justice are ingrained in domestic legal procedures - and how deviations from familiar rules can feel like a threat to justice itself. Indeed, the tribunal's hybrid system, which is neither purely common nor civil law, seems to be offending people's notions of justice on both sides of the legal fence. So the question naturally arises: Can justice be served by such a hybrid system?

MELDING THE TWO SYSTEMS

When the Hague tribunal was established in 1993, it leaned heavily towards common law procedures. This legal framework is used in the US, Britain, Australia, and elsewhere, but was known to Yugoslav legal experts and the public only through the glossy American courtroom dramas they watched on television in the Eighties.

According to the common law model, criminal proceedings should be adversarial in nature. Trials are viewed as contests between two equal parties - the prosecution and the defence. A neutral judge controls proceedings, but the guilt or innocence of the defendant is almost always determined by a jury of lay citizens. Underlying the common law approach is the idea that one side will win the case by convincing jurors that its version of events is the more believable. Each party tries to do this by offering evidence in support of its story.

Because jurors typically do not have any legal expertise and, in theory, may be prone to believing anything that is convincingly presented, the common law system has developed strict rules of evidence aimed at excluding less-than-trustworthy information. Evidence that does not meet this standard is not shown to the jury, and is not considered part of the case. So long as the evidence passes this test, however, the parties are free to introduce whatever they believe will best support their version of events. They can decide whom to call as witnesses, and are given a chance to question the other side's witnesses through the often hostile process of cross-examination. In short, both parties tell the story of what happened through the evidence they present in the courtroom. What is not heard or seen there is not considered part of the case. This is why it is crucial that the judge and jury have no knowledge of relevant events before the trial begins, since such advance knowledge could be a source of bias.

Because parties to a criminal case in a common law system must present all their evidence in the courtroom, trials can be long and expensive, and are full of theatrical effects aimed at convincing the jury. By comparison, trials in the civil law system - which is practiced in continental Europe, in Central and South America, and elsewhere - might appear boring.

In civil law, court proceedings follow the inquisitorial pattern, where the judiciary aims to come as close to the truth as possible. The leading role is given not to the two parties but to the judges, who are expected to use all available evidence to uncover what actually happened. The story unfolds primarily through a dossier containing written witness statements and documents concerning the case. Testimony is rarely given in court. The judge receives the dossier before the trial begins, and is expected to know a lot about the case before he or she lays eyes on the accused.

Once in the courtroom, the judge directs the trial process, requesting evidence and personally questioning witnesses. He or she is also allowed to order investigations other than those carried out by prosecutors and defence lawyers. Because it is believed that judges are professionals who will not be biased by unreliable information, the rules about what evidence can be admitted are not as strict as in common law trials. There are also fewer complicated procedural matters involved in civil law trials, and they tend to be shorter and less expensive than those in common law systems.

The Hague tribunal, however, has adopted elements of both systems, and today, ten years into its existence, it consists of a number of different layers. At the ICTY, it is the prosecutor who investigates the case and brings the indictment - a common law procedure. But the indictments have to be read, reviewed, and confirmed by the judges before they become official - a practice characteristic of the civil law system. Cases are heard by a panel of three judges, and - as in the civil law framework - there is no jury. But much like common law trials, cases are built in the courtroom, where the parties question hundreds of witnesses. At the same time, some witnesses can choose only to give written statements - a civil law trait.

Prosecutors are allowed to offer the accused a chance to plead guilty, and thereby cut the costs in time and money that would be spent on trying him. This option is familiar to adherents of the common law system, but foreign to civil law practitioners. In return, the prosecution typically offers to recommend a lower sentence, as is often done in the common law system. But judges in The Hague are not obliged to follow the prosecutor's recommendations and are allowed to pronounce whatever sentence they find appropriate - and the accused is not allowed to withdraw his plea if they settle on a sentence beyond that suggested. No existing common law system would allow this to happen.

Not surprisingly, the tribunal's rules end up confusing not only the defendants and the general public, but also sometimes the very judges, defence lawyers, and prosecutors who are working within this hybrid system.

THE JUDGES

The most obvious effects of the clash between the common law and civil law systems can be seen in the work of the tribunal's judges, whose approach to a case may differ significantly depending on whether they come from a common law or civil law background. Such rifts became glaringly obvious when, last year, the trial chamber sitting in the case of Momir Nikolic - who was accused of taking part in the 1995 Srebrenica massacre and had pleaded guilty as part of a plea agreement - decided to ignore the prosecutor's recommended term of 15 to 20 years and sentenced the accused to 27 years in prison.

That same month, the judges again decided to act outside the prosecutor's recommendations, sentencing Dragan Nikolic (no relation), the Bosnian Serb who pleaded guilty to crimes committed while serving as a guard in the Susica detention centre, to 23 years in prison. As part of a plea agreement, the prosecutor had earlier recommended a sentence of 15 years. The majority of judges on the two panels came from civil law countries, where plea agreements are virtually unknown.

"The composition of the chamber has an effect on the outcome of the trial," one of the senior tribunal judges, Judge Wolfgang Schomburg, conceded in an interview with IWPR. Judge Schomburg presided over the trial chamber in the case against Dragan Nikolic. "Although the judges are technically free to ignore the proposed terms of the agreements, common law judges do feel bound by recommendations of the parties more than the civil law ones," he said. But the difference in approaches goes far beyond the understanding of plea agreements. "The interpretation of the [tribunal's] rules differs greatly depending on where the judge comes from," said Peter Murphy, a professor at the South Texas College of Law, who has served as a defence lawyer before the tribunal and trained others in that role. "This leads to conflicting rulings at trial and influences the entire way the trial is conducted." "Judges in an inquisitorial [civil law] system are very active," explained Roelof Haveman, a professor at Leiden University in the Netherlands who has worked with Murphy to train tribunal lawyers. "They are the ones who examine witnesses and ask the questions. They are used to having knowledge of the case before the trial starts."

By comparison, he described the judges in the common law system as "sort of umpires - they decide quarrels between the two parties. If they interact with witnesses, they think their impartiality is breached". Judges seem to prefer whichever system they are more familiar with. Judge Schomburg, for example, wants the judges at the tribunal to have access to more information - a feature of the civil law landscape in his native Germany. There, the prosecutor is duty bound to give all relevant evidence to the judges, who can demand that an indictment be amended or re-issued if they feel it is incomplete. No such obligation exists within the framework of the tribunal. This led Judge Schomburg to display visible anger in the courtroom last spring, while presiding over the case of the Bosnian Serb politician Miroslav Deronjic, indicted for his role in the ethnic cleansing of eastern Bosnia in 1992.

In his witness statement, Deronjic spoke at length about events in Srebrenica in 1995, but the prosecution did not charge him with any crimes relating to that period - a decision that provoked Judge Schomburg's admonishment. He criticised the prosecution for indicting Deronjic for only a small part of what appeared to be a much greater scheme. When the chamber sentenced Deronjic solely for his role in the events of 1992, Judge Schomburg dissented. But in an earlier interview with IWPR, he admitted that trial chambers, in principle, have limited opportunities to contradict the parties when both sides agree. "If both [the defence and the prosecution] say 'we have no disagreement', then we have no chance of establishing the extent of a defendant's guilt," he said.

On the other side of the spectrum, former tribunal judge Patricia Wald - who comes from a common law tradition - has taken issue with her civil-law educated colleagues. In one of several papers discussing this topic, she criticised the way some judges at the tribunal handle one of the more important elements of the trial - witness examination. When the civil-law trained judges question witnesses themselves, she wrote, "they don't always repeat the witness's testimony precisely when they ask a follow up question - thereby risking an answer based on an erroneous premise".

The problems also arise during the cross-examination, she added, noting that, "If a civil [law] judge who himself is not attuned to cross-examination is presiding, he is apt to interrupt what we think of as legitimate [questions] and allow illegitimate [ones]."

THE LAWYERS

It is not only judges who have difficulties with the hybrid system. Lawyers also face serious challenges in adjusting to the tribunal's mixed rules and procedures. Lawyers educated in the common law tradition often have trouble getting used to the relaxed rules regulating the admissibility of evidence. Unlike the strict rules in the common law system, the general ICTY rule is that evidence can be admitted as long as it is relevant to the case and has the potential to prove or disprove a particular point.

"The rules allow almost all evidence [to be admitted]," said Peter Murphy of the South Texas College of Law. "From the point of view of a common law [practitioner], this is the main difference." Another big difference for common law practitioners is the absence of a jury, Murphy said, noting that if a judge alone is going to determine the defendant's fate, common law attorneys cannot be as theatrical as they might normally be in front of a jury. In such circumstances, relaxed rules of evidence make sense and dramatics do not. Another issue for common law lawyers practicing at the tribunal is how they question witnesses.

Haveman explains that common law attorneys, when practicing before their own courts, "know exactly where to stop asking questions" before any potentially incriminating evidence comes out in their client's answers. But this tactic may not work at the ICTY, where a judge can decide to ask his own questions, and may lead the witness into territory where the defence lawyer may not want the testimony to go. Former tribunal judge Wald described such incidents in a 2001 article. "I have noticed that such questioning may throw off the rhythm of the prosecution's or the defence's case," she wrote. "[This is] casting the judge in the role of an uninvited guest at the party."

The tribunal system is no more familiar to lawyers trained in a civil law framework who, for example, may find themselves in a position to cross-examine a witness for the first time in their legal careers. "Most civil lawyers are completely unused to doing cross-examinations, dealing with witnesses, and making opening statements," said Murphy. "They just don't know how the adversarial process works or the kinds of things lawyers are expected to do." This issue becomes particularly significant when one considers that many of the defence lawyers come from the Balkans, a region deeply steeped in civil law traditions.

In a 2003 article, Judge Wald noted that at least initially, Balkan defence lawyers were not very adept at cross-examination, "They tend to attack peripheral rather than jugular matters, often skirt around the point endlessly, and ask outrageously biased and, to our thinking, illegitimate questions. "Their learning process is still a tedious experience for common law judges," she added reproachfully. The question remains whether this "tediousness" can affect the final outcome of the case, if the trial is presided over by a common-law educated judge. Even those civil law lawyers who have adjusted well to the mixed system describe it as "still occasionally cumbersome" and admit they often wish that the judges would take a more active role in the process.

Haveman, who has trained lawyers from both systems, admits that many of his trainees found it difficult to grasp the principles of the opposing system. "There are very few lawyers who think the other system is fair," he said. "Most of them still believe in their own [way of doing things]." Marieke Wierda, a legal expert at the New York-based International Centre for Transitional Justice, and a former law clerk to the late judge Sir Richard May, who presided over the Milosevic trial, goes one step further. "People are indoctrinated by the system they come from and they don't see that justice could be done in any other way but the one they are used to," she told IWPR.

PERCEPTIONS

What is true for judges and lawyers seems also to be true for the public and legal experts in the former Yugoslavia, who are used to civil law rules and often have trouble grasping the tribunal's mixed system. Victims of wartime abuses have been angered by the many cases where the accused was given the chance to plead guilty in exchange for the prosecutor recommending a lower sentence. Some claim that defendants have feigned remorse in exchange for a lesser punishment, while others have blamed prosecutors for putting "undue pressure" on the accused to plead guilty.

Misunderstandings of the plea agreement procedure, in particular, have ensured that the ICTY's legal system remains controversial in the former Yugoslavia. But there are broader misconceptions about how the tribunal's system operates, and some insiders believe it is these that are principally responsible for the court's image problems.

"It was a fundamental and basic mistake to impose a common law system on the tribunal, when the area affected has a civil law system," said Judge Schomburg. "People in the field have problems understanding what we are doing." This concern was borne out by a 2000 study conducted by the Human Rights Centre and the International Human Rights Law Clinic at the University of California, Berkeley, and the Centre for Human Rights at the University of Sarajevo. According to the group's findings, many Bosnian legal professionals see the tribunal's combination of common law and civil law systems as inaccessible. A Bosnian Muslim judge told the researchers that the mix of the two systems made it difficult for judges to understand the proceedings, while a Bosnian Croat judge described the rules as "a bit foreign to us". In addition, the study found that the legal professionals interviewed felt the tribunal's use of common law rules implied that their own tradition - based on the civil law model - was somehow sub-standard.

DOES IT WORK?

So can a system that combines common law and civil law elements, implemented by judges and lawyers still firmly rooted in their own legal traditions, and observed by a sceptical and often hostile public, still be seen as fair?

"With some work, yes, the system could still end up being fair," said Murphy. "But the way it is being done now, we have the worst of both systems rather than the best." He insists that both systems have valuable elements to offer to the developing practice of international justice - but that they have to be combined appropriately. Some traditionally common law rules, such as the right not to incriminate oneself and to have witnesses live in the courtroom where they can be cross-examined, should be preserved, as they are often better at protecting defendants' rights, he says. But the civil law system, he continues, has much to offer in terms of efficiency and improves an accused person's chances of having an expeditious trial.

Haveman believes that the way to determine whether a rule at the tribunal is fair is to look back to the underlying purpose of that rule in the system where it originated - whether common or civil law. The court should then ensure that this rationale is appropriately addressed in its own version of the rule. What would emerge, he explains, is an original system. The rules would no longer fit together exactly as they did in their common law or civil law contexts, but would become a new part of a unique whole. "It is the entirety of the system that would eventually make it fair or unfair," added Haveman.

At the end of the day, even Judge Schomburg remains optimistic that the mixed legal system can work. "Sometimes we act on the lowest common denominator," he said. "But sometimes we come to original solutions using the best of both systems." Wierda agrees, telling IWPR, "The differences between the two systems are not as fundamental as people make them out to be. It is possible to boil the rules down to the essence, which is fairness, and then build up from there. All that is really required is an open mind."

About the Author:Rachel S. Taylor is an IWPR editor in The Hague. Stacy Sullivan and Ana Uzelac also contributed to this article.