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This is to certify that the
thesis entitled

Proof of Death: An Analysis of Methods that the lntemational
Criminal Tribunal for the former Yugoslavia Used to Establish
Death

presented by

Jennifer L. Beatty

has been accepted towards fulfillment
of the requirements for the

MS. degree in Forensic Science

 

 

 

 

jOl‘ rofessor’s Signature
«5’- 09 ~65:

Date

  

MSU is an Afiinnative Action/Equal Opportunity Institution

LIB EiIIVERSITY
MICHIGAN STATE
EAST LANSING, MICH 48824-1048

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or.” ‘

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PLACE IN RETURN BOX to remove this checkout from your record.
To AVOID FINES return on or before date due.
MAY BE RECALLED with earlier due date if requested.

 

DATE DUE

DATE DUE

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_
2/05 clelRC/DateDue.indd-p.15

PROOF OF DEATH: AN ANALYSIS OF METHODS THAT THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA USED TO ESTABLISH
DEATH.

By

Jennifer L. Beatty

A THESIS
Submitted to Michigan State University
in partial fulfillment of the requirements
for the degree of
MASTERS OF SCIENCE IN FORENSIC SCIENCE

Department of Criminal Justice

2005

ABSTRACT
PROOF OF DEATH: AN ANALYSIS OF THE METHODS THAT THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
USED TO ESTABLISH DEATH.
By
Jennifer L. Beatty

The lntemational Criminal Tribunal for the former Yugoslavia’s (“ICTY”)
jurisdiction encompasses three main categories of crime: war crimes, genocide, and
crimes against humanity. Between 1997 and 2004, the frequency of Trial Chambers’
citations to forensic evidence in establishing a victim’s death has decreased. This shift in
frequency could be a result of an amendment to the ICTY’S Rules of Procedure and
Evidence to incorporate Rule 92bis, which allows the Trial Chambers to admit
confidential and lay witness written statements to establish a victim’s death in order to
shorten the trial process.

Since 2001, the ICTY Trial Chambers has changed the types of evidence it cited
to establish a victim’s death. First, the Trial Chambers dramatically decreased the
number of expert witness citations. Second, although the Trial Chambers cited similar
number of forensic exhibits in pre-and post-Rule 92bis judgments, forensic evidence
citations decreased forty-four percent in relation to the total number of citations. Third,
the Trial Chambers significantly increased their reliance on non-forensic exhibits.
Finally, the Trial Chambers cited more confidential 92bis statements and 92bis
statements to establish death than forensic exhibits in post-Rule 92bis judgments. This
bias attitude toward eyewitness testimony could jeopardize the accuracy and integrity of

the trial proceedings.

Copyright by
JENNIFER L. BEATTY
2005

To my father, To my mother,
who introduced me to mass disasters who taught me that I can

do anything

I would not be the person that I am today without both of your love, patience, and
support.

iv

ACKNOWLEDGEMENTS

I would like to thank my committee members, Dr. Norman J. Sauer, Dr. Christopher
Smith, and Dr. Todd Fenton. Their help was invaluable and critical in developing this

study.

Special thanks are necessary for Dr. Christopher Smith for his constant feedback and

criticism during this entire process. Your comments truly molded this study.

I would also like to thank the Forensic Science Foundation for generously granting me

the 2003-2004 Acorn Grant. This money help support me during my ICTY internship.

I would also like to thank various individuals at the ICTY that supported this study.
Graham Blewitt was graciously began this project by informing the Public Information
Services of my existence. I truly appreciated Mr. Christian Chariter’s constant contact
with me over a six-month period. His contact allowed me to gain the necessary materials
for this project. I would also like to thank Carline Ameerali because she actually invited

me to return to the ICTY to obtain the data.

I would like to thank my friends and family. Christopher Brown was extremely generous
in reading and editing multiple drafts of this paper. He was also invaluable emotional
support. Furthermore, I would like to thank Katherine Lacy-Wilson for her hours of

mental and emotional support during this process.

Finally, I would like to thank my parents. Their financial support allowed me to solely
concentrate on this project full-time. I would also like to thank them for their constant

emotional support during this entire process.

vi

TABLE OF CONTENTS

LIST OF TABLES ............................................................................................................. ix
LIST OF FIGURES ............................................................................................................ xi
CHAPTER I: FORENSIC SCIENCE IN INTERNATIONAL PROSECUTION .............. I
Introduction ............................................................................................................. 1
Background ............................................................................................................. 4
Statement of the Problem ..................................................................................... 11

Thesis Significance ............................................................................................... 12
Definitions ............................................................................................................ 12
CHAPTER II: HISTORY OF INTERNATIONAL CRIMINAL TRIBUNALS .............. 15
Introduction .......................................................................................................... 1 5
Historical lntemational Human Rights ................................................................. 15
Armed Conflicts ........................................................................................ 16

Peace Time ................................................................................................ 18
Contemporary lntemational Human Rights .......................................................... 19
lntemational Criminal Tribunals ........................................................................... 23
lntemational Criminal Tribunal’s Jurisdiction ...................................................... 24

War Crimes ............................................................................................... 26

Genocide .................................................................................................... 27

Crimes against Humanity .......................................................................... 30

Summary ............................................................................................................... 3 1
CHAPTER III: INTERNATIONAL CRIMINAL PROCEDURE ................................... 33
Introduction ........................................................................................................... 33
General Theory ...................................................................................................... 33
Inquisitorial System ............................................................................................... 35
Adversarial System ............................................................................................... 37

Trial Process .......................................................................................................... 39
lntemational Criminal Procedure .......................................................................... 42
Speedy Trial .............................................................................................. 43
Cross-examination ..................................................................................... 44

Current Trends in the ICTY’S Criminal Procedure ............................................... 45
ICTY’s Rules of Evidence .................................................................................... 48
Summary ............................................................................................................... 50
Chapter IV: METHODOLOGY ........................................................................................ 51
Introduction ........................................................................................................... 51
Unobstructive Research ......................................................................................... 5]

vii

Research Subject ................................................................................................... 54

Hypothesis ............................................................................................................. 55
Research Questions ............................................................................................... 56
Protection of Participants ...................................................................................... 56
Research Procedures ............................................................................................. 57
Analysis ................................................................................................................. 58
Summary ............................................................................................................... 59
CHAPTER V: RESULTS ................................................................................................. 61
Introduction ........................................................................................................... 61
Aggregated Analysis ............................................................................................. 63
Witness Statements ............................................................................................... 65
Confidential Witnesses .............................................................................. 67

Expert Witnesses ....................................................................................... 69

Lay Witnesses ........................................................................................... 81

Exhibits .................................................................................................................. 83
Confidential Exhibits ................................................................................. 84

Forensic Exhibits ....................................................................................... 87

Non-forensic exhibits ................................................................................ 98

Forensic Exhibits verses 92bis statements .......................................................... 104
Statistical Analysis .............................................................................................. 107
Summary ............................................................................................................. 113
CHAPTER VI: DISCUSSION ........................................................................................ 1 18
Introduction ......................................................................................................... 1 18
Witness Statements ............................................................................................. 119
Forensic Evidence and Expert Witness Testimony ............................................. 122
Imbalance ............................................................................................................ 125
CHAPTER VII: CONCLUSION .................................................................................... 129
Introduction ......................................................................................................... 1 29
Questions ............................................................................................................. 129
Methods ............................................................................................................... 130
Results ................................................................................................................. 131
Implications ......................................................................................................... 1 3 5
Limitations .......................................................................................................... 136
Recommendations for future research ................................................................. 137
APPENDIX ..................................................................................................................... 138
Appendix A: Applicable ICTY Rules of Procedure and Evidence ..................... 139
BLIOGRAPHY ............................................................................................................... 146
Table of Cases ..................................................................................................... 147
Government Documents ...................................................................................... 148
Articles, Books, and Websites ............................................................................. 151

viii

LIST OF TABLES

Table 5.1 Cases Separated by Geographical Area ............................................................ 61
Table 5.2 Witness Statements and Exhibits Separated by Category and Year ................. 62
Table 5.3 Percentages of Witnesses and Exhibits Citations during each Time Period ..... 65
Table 5.4 Percentage of Confidential, Expert, and Lay Witnesses Citations during each
Time Period ....................................................................................................................... 65
Table 5.5 Percentage of Total Number of Confidential Witnesses Citations during each
Time Period ....................................................................................................................... 69
Table 5.6 Percentage of the Total Number of Expert Witnesses Citations during each
Time Period ....................................................................................................................... 71
Table 5.7 Expert Witness Statements Separated by Category .......................................... 72
Table 5.8 Percentage of Expert Witnesses Cited each Year ............................................. 73
Table 5.9 Percentage of Total Number of Experts Witnesses Citations in each Time
Period ................................................................................................................................ 76
Table 5.10 Percentage of Lay Witnesses Citations during each Time Period .................. 83

Table 5.11 Percentage of Confidential, Forensic, and Non-Forensic Exhibits Citations
during each Time Period ................................................................................................... 83

Table 5.12 Percentage of the Total Number of Confidential Exhibits during each Time

Period ................................................................................................................................ 86
Table 5.13 Percentage of the Total Number of Forensic Exhibit Citations during each

Time Period ....................................................................................................................... 89
Table 5.14 Forensic Exhibits Separated by Category ....................................................... 90
Table 5.15 Percentage of Forensic Exhibits Cited each Year ........................................... 91
Table 5.16 Percentage of Each Type of Forensic Exhibit during each Time Period ........ 94

Table 5.17 Percentage of the Total Number of Non-forensic Exhibits during each Time
Period ................................................................................................ 100

ix

Table 5.18 Non-forensic Exhibits Divided by Category ................................................. 101

Table 5.19 Percentage of 92bis Statements and Miscellaneous Exhibits during each

Year ................................................................................................................................. 102
Table 5.20 Percentage of 92bis Statements and Miscellaneous Exhibits Citations during

each Time Period ............................................................................................................. 104
Table 5.21 92bis Statements Separated by Category ...................................................... 105
Table 5.22 Statistical Calculations for Nine Hypotheses ................................................ 108

LIST OF FIGURES

Figure 5.1 Witness and Exhibit Timeline .......................................................................... 64
Figure 5.2 Aggregated Witnesses and Exhibits in Relation to Rule 92bis ...................... 64
Figure 5.3 Confidential Witness Timeline ........................................................................ 68
Figure 5.4 Confidential Witness in Relation to Rule 92bis ............................................... 68
Figure 5.5 Expert Witness Timeline ................................................................................. 70
Figure 5.6 Expert Witness in Relation to Rule 92bis ........................................................ 71
Figure 5.7 Aggregated Expert Witness Timeline .............................................................. 73
Figure 5.8 Aggregated Expert Witness in Relation to Rule 92bis .................................... 76
Figure 5.9 Lay Witness Timeline ...................................................................................... 81
Figure 5.10 Lay Witness in Relation to Rule 92bis .......................................................... 82
Figure 5.11 Confidential Exhibit Timeline ....................................................................... 85
Figure 5.12 Confidential Exhibit in Relation to Rule 92bis .............................................. 87
Figure 5.13 Forensic Exhibit Timeline ............................................................................. 88
Figure 5.14 Forensic Exhibit in Relation to Rule 92bis .................................................... 90
Figure 5.15 Aggregated Expert Exhibit Timeline ............................................................. 91
Figure 5.16 Aggregated Expert Exhibit in Relation to Rule 92bis ................................... 94
Figure 5.17 Non-forensic Exhibit Timeline .................................................................... 100
Figure 5.18 Non-forensic Exhibit in Relation to Rule 92bis .......................................... 100
Figure 5.19 Aggregated Non-forensic Exhibit Timeline ................................................ 101
Figure 5.20 Aggregated Non-forensic Exhibit in Relation to Rule 92bis ....................... 103

Figure 5.21 Forensic Exhibits versus confidential 92bis and 92bis statements in Relation
to Rule 92bis .................................................................................................................... 106

xi

CHAPTER I: FORENSIC SCIENCE IN INTERNATIONAL PROSECUTION

Introduction

The International Criminal Tribunal for the former Yugoslavia’s (“ICTY”)
jurisdiction encompasses three main categories of crime: war crimes, genocide, and
crimes against humanity. (ICTY Statute, Art. 2; Art. 3; Art. 4; and Art. 5) Although this
Statute describes many types of criminal offenses, this Statute criminalizes Six different
forms of homicide throughout these main categories. (ICTY Statute, Art. 2; Art. 3; Art. 4;
and Art. 5) This recognition is not a coincidence because homicide is the most
horrendous offense imaginable; it deprives an individual of the right to life. (African
Charter on Human and People’s Rights, Art. 4; American Convention on Human Rights,
Art. 4; European Convention on the Protection of Human Rights and Fundamental
Freedoms, Art. 7; lntemational Covenant on Civil and Political Rights, Art. 6; Universal
DeclaratiOn of Human Rights, Art . 3)

The Office of the Prosecutor (“OTP”), the ICTY’S investigative and prosecutorial
branch, has the burden to establish the legal elements of these various forms of homicide.

(ICTY Statute, Art. 16) Throughout these six offenses, the OTP must establish the

victim’s death. (Krnojelac, Trial Judgment, March 15, 2002 at T 324; Kvocka et al., Trial

Judgment, Nov. 2, 2001 at T 132) The OTP has used various methods to establish death,
including lay witness testimony, expert testimony, and exhibits. (T adic, Trial Judgment,
May 7, 1997 at 711' 71-87, 202-204; Delalic et al,, Trial Judgment, Nov.16, 1998 at W
826-834, 836-845, 847-856, 858-866, 869-908; Blaskic, Trial Judgment, March 3, 2000
at W 351, 371-379, 389-393, 414-417, 427, 540, 547, 572, 607, 610, 612, 618, 622 ) The

OTP even hired specialists in this task. Specifically, the OTP hired forensic specialists to

assist the OTP in establishing multiple deaths. (Krstic, Trial Judgment, Aug. 2, 2001 at

T1 71-87,‘202-204, 222-225, 229-232; Jelisic, Trial Judgment, Dec. 14, 1999 at IT 90;

Vasiljevic, Trial Judgment, Nov. 29, 2002 at 11' 52)

However, the OTP was not required to hire forensic specialists to assist in this
process. Forensic evidence is unnecessary in international prosecution because the Trial

Chambers for the ICTY and the lntemational Criminal Tribunal for Rwanda (“ICTR”)

explicitly state that eyewitness testimony is sufficient to prove death. (T adic, Trial

Opinion and Judgment, May 7, 1997 at T 240; Musema, Trial Judgment and Sentence,

Jan. 27, 2000 at 1' 52) The OTP has used lay witness testimony and other types of
experts to establish victims’ deaths. (Tadic, Trial Opinion and Judgment, May 7, 1997 at

11' 205-206; Delalic et al., Trial Judgment, Nov. 16, 1998 at 11' 826-834, 836-845, 847-

856, 858-866, 869-908; Blaskic, Trial Judgment, March 3, 2000 at W 351, 371-379, 389-

393, 414-417, 427, 540, 547, 572, 607, 610, 612, 618, 622)

Funding issues have continuously plagued the ICTY’s exhumation process since
1995. (ICTY Armual Reports 1996, p. 24; ICTY Annual Report 1997, pp. 21-22; ICTY
Annual Report 1998, pp. 31-32; ICTY Annual Report 1999, p.33; ICTY Annual Report
2000, p. 28; ICTY. Annual Report 2001, pp. 33-34; ICTY Annual Report 2002, p. 37-38)
A crisis exists because future courts may not be inclined to fund exhumations because it
is unnecessary information; future courts may conservatively route their available funds
to safeguard required evidence, such as witness protection.

Moreover, modifications in the ICTY’s policies may be the demise of the forensic
evidence in international prosecution. Recently, the ICTY is trying to transition from a

purely oral trial to a more documentary-based trial in order to accelerate the trial process.

(May & Wierda 2002, p. 343-346) This trend is represented through the revisions of the
ICTY’s Rules of Procedures and Evidence. (May & Wierda 2002, p. 343-346; Fairlie
2003, pp. 61-66) Rule 92bis allows the Trial Chambers to admit written statements in
lieu of oral testimony regarding crime-based evidence. (Rule 92bis (A); Fairlie 2003, pp.
61-66) Confidential and lay witnesses can provide sufficient details concerning
homicides. Therefore, future lntemational Criminal Tribunals may be reluctant to hire
forensic specialists because these specialists provide expensive and redundant
information.

The thesis has four purposes. First, this thesis documents the various means the
Trial Chambers cite to establish a victim’s death in thirteen adjudicated cases. The
inventory is necessary because it determines the exact methods the Trial Chambers
recognize in establishing a victim’s death. Second, this thesis documents the actual
frequencies of the various methods the Trial Chambers cite to establish a victim’s death.
This step is important because it illustrates which method the Trial Chambers rely upon
more heavily in establishing a victim’s death. This step can also determine if the Trial
Chambers’ reliance on particular methods varies through time.

Furthermore, this thesis documents how the modifications in the ICTY’S Rules of
Procedure and Evidence affect forensic evidence. This thesis investigates whether that
the Trial Chambers acknowledge alternative procedural methods to prove a victim’s
death via crime-based evidence. This step is important because it documents that the Trial
Chambers relies upon 92bis statements to establish a victim’s death. Finally, this thesis
documents that the Trial Chambers are relying upon 92bis statements more heavily than

forensic evidence. This critical analysis determines that the Trial Chambers are directly

establishing a trend to rely on confidential and lay witnesses’ statements to establish a

victim’s death rather than forensic evidence.

Background

United Nations Charter, Chapter VII vests authority in the Security Council to
create a tribunal in order to maintain international peace and security. In 1993, Security
Council created the ICTY, the third ad hoc international criminal tribunal, to restore and
maintain peace within the former Yugoslavia. The Security Council detected a threat to
international peace and security because numerous homicides in the area violated
international humanitarian law. (United Nations Security Council Resolution 827 1993,
p.1) The Security Council assumed that prosecuting individuals for their criminal actions
would “contribute to the restoration and maintenance of peace.” (United Nations Security
Council Resolution 827 1993, p.1)

ICTY’s jurisdiction consists of serious violations of international humanitarian
law committed within the former Yugoslavia since January 1, 1991, by natural persons.
(ICTY Statute, Art. 1) The Statute places “serious violations” of international human
rights law into three categories: war crimes, genocide, and crimes against humanity.1
(ICTY Statute, Art. 2; Art. 3; Art. 4; Art. 5) The drafiers codified homicide theories
through these categories. (ICTY Statute, Art. 2; Art. 4; Art. 5) Between the Statute and
case law, ICTY jurisprudence criminalizes at least six offenses associated with homicide.
(ICTY Statute, Art. 2; Art. 3; Art. 4; Art. 5)

The Office of the Prosecutor (“OTP”), the ICTY’S investigative and prosecutorial

branch, possesses the burden of proof because the defendants are presumed innocent.

 

' These three categories encompass numerous crimes; however, this thesis will only elaborate on the
homicide theories because this paper documents judicial trends in establishing death.

(ICTY Statute, Art. 16; Art. 21) In a murder indictment, the OTP has the burden to

establish a victim’s death. (Krstic, Trial Judgment, Aug. 2, 2001 at T 485; BIaskic, Trial

Judgment, March 3, 2000 at II 217; Kvocka et al., Trial Judgment, Nov. 2, 2001 at T 132)
Although the ICTY utilized forensic evidence, the ICTY’S jurisprudence asserts that the
OTP needs only to present witness testimony to establish death. (Tadic, Trial Opinion

and Judgment, May 7, 1997 at T? 154-175, 205-207, 223, 284-286, 348-350; Delalic et

al., Trial Judgment, Nov. 16, 1998 at W 814-904) This dictum also implies that
production of physical evidence is unnecessary. In 1997, this implication was explicitly
affirmed when the Trial Chamber wrote: “It is inappropriate to apply rules of some
national systems that require the production of a body as a proof of death.” (Tadic, Trial
Opinion and Judgment, May 7, 1997 at T 240)

This dictum affirms the ICTY’S initial policies promoting oral trials because the
case law provides an avenue to establish murder without physical evidence. (Safi’erling
1999, p 239-240) This bias toward live testimony was further secured when the Trial
Chamber opined “the absence of forensic or real evidence shall in no way diminish the
probative value of the evidence which is provided to the Chamber; in particular, the
absence of forensic evidence corroborating eye-witness testimony shall in no way affect
the assessment of those testimonies.” (Musema, Trial Opinion and Judgment, Jan. 27,
2000 at 1 52) As long as the witness testimony is credible and relevant, the Trial

Chamber may accept their statement as validation as the sole proof to the killings. (Tadic,

Trial Opinion and Judgment, May 7, 1997 at W 154-175, 205-207, 223, 284-286, 348-

350; Delalic, Trial Judgment, Nov. 16, 1998 at T1 814-904) In theory, massacres could

be proven via a single eye-witness’ testimony. However, the Trial Chamber prefers to

cite numerous witnesses with collaborating testimonies to provide accurate accounts of

the massacres. (Tadic, Trial Opinion and Judgment, May 7, 1997 at 1W 194-206; Stakic,

Trial Judgment, July 31, 2003 at 1111' 201-274; Jelisic, Trial Judgment, Dec. 14, 1999 at II

103)
This case law does not support the use of forensic science in the courtroom. The

judges cited numerous cases from common law jurisdictions, such as the United States, to
support this affirmation. (Tadic, Trial Opinion and Judgment, May 7, 1997 at 11 253)

This is astounding because common law jurisdictions constantly utilize forensic evidence
in homicide cases. The utilization of forensic evidence in international prosecution may

be limited in future tribunals because the jurisprudence states that it is unnecessary.
(T adic, Trial Opinion and Judgment, May 7, 1997 at T 253) Future tribunals may

discontinue the use of forensic science because forensic investigation is an expensive
process.

This case law undermines the legal community’s recognition that forensic
evidence is indispensable corroborative evidence to witness testimony. (Blewitt 1997, pp.
284-288; Knoops 2003, pp. 150-154) Forensic evidence can present powerful accounts
because this type of physical evidence establishes a primafacia" case for murder. (May
& Weirda 2002, p.253) Specifically, ICTY has recognized the vital contributions
forensic evidence can provide via the Tribunal’s long history with forensic science. In

1995, Richard Goldstein, the first Chief Prosecutor of the lntemational Criminal

 

2 Prima facia evidence is evidence that is sufficient to establish a fact or a group of facts. 1f the evidence is
not rebutted or contradicted, the evidence will remain sufi'rcient to sustain a judgment. (Black 1990, p.
1190)

Tribunal, supported forensic evidence in the investigation process because he allocated
funds to cover forensic expenditures and to continue exhumations. (Scharf 2002, p.10)
In 1996, the actual exhuming process began when the OTP subcontracted
Physicians for Human Rights (PHR) to investigate and excavate graves. (ICTY Annual
Report 1996, p. 24) The teams exhumed four sites in Bosnia: Cerska, Nova Kasaba,
Orahovac, and Brajevo Military Farm. (ICTY Annual Report 1996, p. 24; ICTY Annual
Report 1997, pp. 21-22) The OTP utilized the evidence from these sites to assist in
indicting Radislav Krstic3, General Ratko Mladic", and Radovan Karadzic5 for the

infamous Srebrenica massacre. (Stover & Peress 1998, p. 319-328; Krstic, Trial

 

Judgment, Aug. 2, 2001 at 1' 71) PHR exhumed victims of the Ovcara farm massacre in

Croatia during the first season. (ICTY Annual Report 1997, p. 21-22) OTP utilized this
information to assist in indicting Slavko Dokmanovic‘5 and Colonel Mile Mrksic7. (Stover
& Peress, 1998, p. 319-328)

During the second season, in 1997, a transition occurred because the OTP hired
teams to exhume rather than subcontracting PHR. (ICTY Annual Report 1997, pp. 21-22)
The Second Chief Prosecutor, Louis Arbour, raised $2.2 million from various countries:

Austria, Canada, Malaysia, Netherlands, Sweden, Switzerland, and the United States of

 

3 Krstic was the commander of the Drina Corps. (Krstic, Trial Judgment, August 2, 2001 at 1' 3) He was

convicted for genocide for his role in the Srebrenica massacre. (Krstic, Trial Judgment, August 2, 2001 at T
688)

‘ General Mladic was the Col. General of Serbian Republic of Bosnia & Herzegovia/Rupublika Srpska
Army. He was indicted for genocide and crimes against humanity with his connection to the Srebrenica
massacre. He was Karadzic’s military chief. (Stover & Peress 1998, p. 319-328)

5 Karadzic was the President of the Bosnia Rupublika Srpska. The OTP indicted him for genocide. (Stover
& Peress 1998, p.319-328)

6 Dokmanovic was the President of the Vukovar Municipality from 1990 to 1996. The OTP indicted him
for crimes related to the Vukovar Hospital. (Stover & Peress 1998, p. 319-328)

7 Col. Mrksic was the commander of the First Guards Motorised Brigade, which occupied Vukovar in mid-
1991. The OTP alleged that his troops removed hospital patients, mostly men, and drove them to the
Ovcara farm. At the farm, the troops beat and killed over 200 patients and buried them in a mass grave.
(Stover & Peress 1998, p. 319-328)

America, to fund the exhumations. (ICTY Annual Report 1997, pp. 21-22; ICTY Annual
Report 1998, pp. 31-32). The team uncovered three sites in Bosnia: Kratine, Brcko, and
Bosanki Samac as well as a small number of crime scenes. (ICTY Annual Report 1997,
pp. 21-22; ICTY Annual Report 1998, pp. 31-32)

In 1998, all exhumation activity convened in Republika Srpska in association with
the Srebrenica massacre. (ICTY Annual Report 1998, pp.31-32) The exhumation
program excavated eight sites: Petkovci Dam, Cavari Road 12, Cavari Road 3, Hodzici
Road 3, Hodzici Road 4, Hodzici Road 5, Lipje 2, and Zeleni Jadar. (ICTY Annual
Report 1998, pp. 31-32; ICTY Annual Report 1999, p. 33) The teams removed around
650-800 individuals and gathered over 20,000 photographic images. (ICTY Annual
Report 1999, p. 33) The OTP utilized this evidence from all these sites in the Krstic case.
(Krstic, Trial Judgment, Aug. 2, 2001 at 1] 71) As usual, funding issues surfaced. The
OTP requested and received additional funding from Canada, Saudi Arabia, United
Kingdom, and the United States to finish the season. (ICTY Annual Report 1999, p. 33)

In 1999, the OTP divided the exhumations efforts between Bosnia and Kosovo.

In Bosnia, the teams excavated five sites: Kozluk, Nova Kasaba, Konjevic Polje 1,
Konjevic Polji 2 and Golgova 2. (ICTY Annual Report 2000, p. 28) The teams exhumed
approximately 1,010 bodies and body parts. (ICTY Annual Report 2000, p. 28) Similar to

the previous years, the evidence discovered on these sites was presented in the Krstic

case. (ICTY Annual Report 2000, p. 28; Krstic, Trial Judgment, Aug. 2, 2001 at 1' 71)
Kosovo represented new frontiers for the OTP. Instead of subcontracting or

hiring teams, the OTP requested various countries to dispatch their national teams to the

area. Furthermore, unlike Bosnia, the OTP knew the locations of the Kosovo grave sites.

During these four months, the teams exhumed approximately 246 grave sites and 2,730
bodies. (ICTY Annual Report 2000, p.28) The OTP utilized this evidence in indicting
Slobodan Milosevic, Milan Milutinovics, Nikola Sainovicg, and General Dragoljuh
Ojdanic"). (ICTY Annual Report 2000, p.28)

Again, in 2000, OTP divided the exhumation teams among Bosnia, Croatia, and
Kosovo. In Kosovo, the national teams finished the exhumations with approximately
4,000 bodies. (ICTY Annual Report 2001, pp. 33-34) The OTP teams exhumed four sites
in Bosnia: Lazete l, Lazete 2c, Ravnice, Glogova 1. (ICTY Annual Report 2001, pp. 33-

34) The OTP utilized the evidence from these grave sites in the Krstic case. (Krstic, Trial
Judgment, Aug. 2, 2001 at 1' 71) The OTP exhumed one grave site in Croatia. (ICTY

Annual Report 2001, pp.33-34)

However, another dramatic transition occurred in the exhumation process. The
Bosnian Federal Commissions started to exhume their own sites. (ICTY Armual Report
2001, pp. 33-34) To protect the ICTY’S interests, the OTP dispatched monitors to these
sites with the power to seize physical evidence and bodies associated with their
investigations. In 2001, the OTP seized over 380 bodies. (ICTY Annual Report 2001, pp.
33-34)

After the Bosnian Federal Commissions started to exhume, the OTP’S exhumation

policy was dramatically transformed. The Chief Prosecutor terminated all substantial

 

8 Milan Milutinovic was the Serbian President of the Ministrarstro Unutrasnjih Poslova (MUP). MUP, the
Serbian Ministry of Internal Affairs, is the main security force of the Republic of Serbia. MUP is
comprised of public security service and state security service. The MUP and VJ were activity in Kosovo
during 1998-1999 In committing crimes against humanity against the ethnic Albanians. MUP’s ultimate
authority was Milosevic. (Abraham et al. 2001, p. 230-235)

:Nikola Sainovic was the Yugoslav Deputy Prime Minister of MUP. (Abraham et al. 2001, p. 230—235)

l0General Dragoljub Ojdanic was the Chief of the Army General Stafi’ of the Yugoslav Army (VJ), who
reported to Slobodan Milosevic. The VJ Is the Federal Republic of Yugoslavia (FRY) army, which Is
comprised of three armies. (Abraham et al. 2001, p. 230-235)

exhumations. (ICTY Annual Report 2001, p. 34) The OTP would monitor only the local
governments’ exhumations. (ICTY Annual Report 2001, p. 34) The OTP dispatched
monitors to five sites in Bosnia, three sites in Croatia, and one in the Republic of
Macedonia. (ICTY Annual Report 2001, p. 34) In 2002, the OTP monitored only one
site. (ICTY Annual Report 2002, p. 37-3 8)

A dichotomy existed in 2003 concerning the exhumation process. The Bosnian
Federal Commissions exhumed Crni Vrh, the largest mass grave exhumed in Bosnia.
Consistent with the ICTY’s policies, the OTP dispatched a monitoring team to protect the
ICTY’s interests. However, Carla DePonte, the third Chief Prosecutor of the OTP,
revealed that the OTP was limiting the forensic budget because all new substantive
investigations were complete.

Although the majority of the forensic evidence collection has been completed, a
marriage between the legal and forensic community continues because the OTP submits
forensic evidence in their prosecution strategies. As of September 2004, the Prosecution

utilized forensic evidence in at least eleven convictions. (Stakic, Trial Judgment, July 31,

2003 at " 210-211, 263-274, 545-553, 588-601, 632, 653,776—779; Kvocka et al., Trial
Judgment, Nov. 2, 2001 at W 19, 90; Jelisic, Trial Judgment, Dec. 14, 1999 at 1' 90;
Kupreskic et al., Trial Judgment, Jan. 14, 2000 at W 184-198, 229, 242, 277, 395;
Krnojelac, Trial Judgment, March 15, 2002 at W 49, 337; Naletilic and Martinovic,
Trial Judgment, March 31, 2003 at 11' 470-508; _Vasiljevic, Trial Judgment, Nov. 29,
2002 at T 52; Krstic, Trial Judgment, Aug. 2, 2001 at Til 4, 71-93, 100-102, 164-171,

222-232, 245-251, 257-260; Blaskic, Trial Judgment, March 3, 2000 at 11' 416-417, 507;

10

Kordic, Trial Judgment, Feb. 26, 2001 at 1W 565-576, 625-638, 644-649, 665, 670-672,

722-729, 739, 744-746; Brdam’n, Trial Judgment, Sept. 1, 2004 at I” 397-465; Annex C.

firtement of the Problem
The ICTY trial process has been extremely lengthy. Most of the trials range from

twenty-five to over two-hundred and fifty hearing days. (Jelisic, Trial Judgment, Dec. 14,
1999 at W 13-17; Brdanin, Trial Judgment, Sept. 1, 2004 at 11' 1180) These lengthy

trials are financially exhausting. (ICTY Annual Reports 1995-2003) Furthermore,
lingering trials are incompatible with the defendant’s due process rights. (Cogan 2002,
pp. 116-120; DeFrancia 2001, pp. 1425-1427; Murphy 1999, pp. 80-83; Rutledge
2003/2004, pp. 151-152, 184-186; Fairlie 2003, pp. 61-66)

In 2001, the judges amended the Rules of Evidence and Procedure to alleviate
procedural restraints in admitting crime-based evidence. The Trial Chambers has
admitted crime-based evidence via documentary evidence through Rule 92bis (A). (May
& Wierda 2002 pp. 343-346; Fairlie 2003, pp.61-66; ICTY Rule 92bis (A)) The Trial
Chambers has admitted written statements in lieu of oral testimony regarding the events
of a homicide. (ICTY Rule 92bis (A); Fairlie 2003, pp. 61-66) The Trial Chambers has
admitted written statements regarding an individual’s death because the witness’s
testimony explains the crime’s events. (Fairlie 2003, pp.61-66)

The Trial Chambers’ citations to 92bis statements, which include both
confidential and lay witness testimony, are adequate to establish a victim’s death. The
researcher noticed that the number of forensic exhibits citations declined compared to the
total number of citations after 2001. The researcher investigated if a correlation existed

between the amendment to the ICTY’s Rules of Procedure and Evidence to incorporate

ll

Rule 92bis and the decline of forensic exhibits citations compared to the total number of
citations.
Thesis Significance
This thesis attempts to record the actual integration of forensic evidence in

international prosecution. Although articles are published referring to forensic evidence
in international prosecution, neither the legal nor the forensic community has presented
numerous studies on the methods by which the legal community integrates this evidence
in the trial process. For example, in the forensic community, most published articles and
books document the horrific human rights abuses through case studies. (Stover & Ryan
2001, pp. 7—25; Simmons 2002, pp. 263-276; Schmitt 2002 pp. 277-292; Rainio et a1.
2001, pp. 171-185; Rainio et al. 2001, pp. 166-173; Haglund 2002, pp. 243-261; Haglund
1997, pp. 367-3 79) In the same vein, law review articles and books related to
international criminal law highlight only the existence of forensic evidence in
international prosecution. (Blewitt 1997, pp.284-288; May & Wierda 2002, pp. 252-254;
Knoops 2003, pp. 150-154; Kirschner 1994, pp. 451-460) This thesis is one of the first
studies that attempts to record how the ICTY integrates forensic evidence in the trial
process to establish a victim’s death.
Definitions

1. Witness testimony: A person’s oral declaration under oath that is received as

evidence for any purpose. (Black 1990, p. 1603-1604)
2. Confidential Witness testimony: A person called to give testimony whose identity

is concealed. Under Rule 69 in the ICTY’s Rules of Procedure and Evidence, the

12

Prosecutor may apply for a non-disclosure order of the witness’s identity because
the witness may be in danger due to his testimony. (ICTY Rule 69)

. Lay witness testimony: A person called to give testimony that does not possess
any expertise in the matters about which he testifies. (Black 1990, p. 888)

. Expert witness testimony: Opinion evidence from a person who possesses special
skills or knowledge in some science, profession, or business which is not common
to the average person. This knowledge is obtained by reasons of his/her special
study or experience. (Black 1990, p. 578)

. Documentary evidence: Evidence furnished by written instruments, inscriptions,
and documents of all kinds. (Black 1990, p. 482)

. Exhibits: A paper or document produced and exhibited to a court during a trial as
evidence. (Black 1990, p. 573)

. Forensic evidence: Exhibits related to the production of dead bodies. This
definition includes death certificates, photographs of bodies, photographs of
graves, autopsy reports, exhumation reports, and summary forensic reports written
by ICTY investigators. A list of dead individuals found submitted in relation to
testimony concerning a mass grave is forensic evidence because a production of a
body was required to be included on the list.

. Non-forensic evidence: Exhibits related to everything except dead bodies. This
definition can include 92bis statements, charts, photographs, maps, military

reports, and list of dead individuals.

. 92bis statement: Witness statement admitted via Rule 92bis.

13

10.

ll.

12.

13.

14.

15.

16.

17.

18.

Confidential 92bis statement: A 92bis statement admitted under the condition that
the witness’s identification is retracted.

94bis statement: A statement of any expert witness admitted via Rule 94bis.
Death Certificates: Exhibits that solely include one or more death certificates.
Forensic reports: Exhibits that reference exhumations, excavation, and/or aut0psy
reports. These exhibits are not authored by ICTY investigators.

ICTY Investigator report: Reports that are authored by ICTY investigators. These
reports could include death certificates, excavation reports, exhumation reports,
and/or autopsy reports.

Miscellaneous exhibits: Non-forensic exhibits that include charts, photographs,
maps, military reports, and list of dead individuals.

Photographs related to bodies: Photographs that captured bodies, burials,
exhumations, and/or graves.

Record of bodies: Lists, reports, or records of bodies discovered at a killing or
burial site.

Videos related to bodies: Videos that captured bodies, exhumations, and/or

burials.

14

CHAPTER II: HISTORY OF INTERNATIONAL CRIMINAL TRIBUNALS

Introduction

This chapter presents a general background on an individual’s fundamental right
to life in international law. First, this chapter discusses the theoretical background of an
individual’s right to life during armed conflicts and peace time. Second, this chapter
describes the development of various institutions that enforce this fundamental right.
Specifically, this chapter concentrates on the development of international criminal
tribunals because these institutions have the ability to protect this fundamental right
through prosecuting crimes within the war crimes, genocide, and crimes against humanity
categories. Finally, this chapter explains the distinguishing characteristics among the six
difl‘erent forms of homicide described in these three crime categories. This explanation is
important because the researcher compiled her data material from case law discussing
these different forms of homicide.
Historical lntemational Human Rights

The international humanitarian rights movement has developed international legal
concepts regarding human worth. (Benison 1999, p. 143-151; Buergenthal et a1 2002,
pp.1-69; Smith 2003, pp. 5-25; Steiner & Alston 2000, pp. 56-135) Customary law and
treaties have articulated an unambiguous respect for human life since World War II.
(Buergenthal et al 2002, pp. 27-69; Smith 2003, pp. 38-52) To implement these new
attitudes, this movement has provided avenues for institutions to either promote or to
enforce these relatively recent ideals. (Buergenthal et a1 2002, pp. 27-29; Smith 2003, pp.
26-30) These principles have evolved via two avenues: armed conflicts and peace-time.

(Benison 1999, pp. 143-151)

15

Armed Conflicts

Commencing from the fourth century, an extensive history exists for countries to
provide protection for civilians during wartime via customary international law and
bilateral treaties. (Smith 2003, p. 12) These treaties and legal precedents represent the
governments’ struggles to provide some protection to citizens during armed conflicts.
(Steiner & Alston 2002, p. 59—67; Smith 2003, p. 12) For example, a bilateral treaty, in
1785, between the United States and Prussia stated:

of war would arise all women and children, scholars of every faculty, cultivators

of the earth, artisans, manufacturers and fisherman, unarmed and inhabiting

unfortified towns, villages, or places, and in generally all others whose occupation
are for the common subsistence and benefit of mankind, shall be allowed to
continue their respective employments and shall not be molested in their person,
nor shall their house or goods be burnt or otherwise destroyed, nor their fields
wasted by the armed forces of the enemy, into whose power, by the events of war,
they may happen to fall; but if any thing is necessary to be taken from them for
the use of such armed force, the same shall be paid for at a reasonable price.

(Steiner & Alston 2002, p. 61)

The various Nations would enter into these agreements because these treaties would
promote the Nations’ best interest. These treaties endorse the Nations’ best interests
because the safeguards allow the countries to continue in a relatively stable environment
even during or afier a war. (Steiner & Alston 2002, pp. 59-67)

Beginning in the early twentieth century, the international community started to
codifyll guidelines to protect civilians during armed conflicts. In 1907, various Nations
adopted The Hague Convention and Regulations. (Smith 2003, p. 13) Hague Law
codifies laws of war. (Smith 2003, p. 13) This Statute articulated the citizens’ rights as

well as the belligerents’ obligations during an armed conflict. (Smith 2003, p. 13)

 

“ Rules and regulations discussing a subject of law. (Black 1990. p. 258)

16

After World War II, the Geneva Convention of 1949 expanded civilians and non-
combatants’ basic rights during armed conflicts. (Smith 2003, p. 13; Buergenthal et al
2002, p. 21; Steiner & Alston 2000 pp. 68-69) Geneva Convention codifies five basic
principles. First, persons who are not involved in the hostiles should be treated
humanely. (Smith 2003, p. 13; Buergenthal et al 2002, p. 21; Steiner & Alston 2000 pp.
68-69) Belligerents should care for the citizens without discrimination. (Smith 2003, p.
13; Buergenthal et al 2002, p. 21; Steiner & Alston 2000 p. 68-69) Second, captured
combatants must be treated humanely. (Smith 2003, p. 13; Buergenthal et al 2002, p. 21;
Steiner & Alston 2000, pp. 68-69) This rule implies that the individual should not be
tortured or treated violently. (Smith 2003, p. 13; Buergenthal et al 2002, p. 21; Steiner &
Alston, 2000 pp. 68-69) Third, a captured individual should be tried before a court of
law. (Smith 2003, p. 13; Buergenthal et al 2002, p. 21; Steiner & Alston, 2000 pp. 68-69)
The court proceedings should employ a form of standard judicial procedures. (Smith
2003, p. 13; Buergenthal et a1 2002, p. 21; Steiner & Alston 2000, pp. 68-69) Fourth, the
military should not inflict superfluous injuries during the course of hostilities. (Smith
2003, p. 13; Buergenthal et a1 2002, p. 21; Steiner & Alston 2000, pp. 68-69) Finally, the
civilian populations should not be the subject of a military attack. (Smith 2003, p. 13;
Buergenthal et a1 2002, p. 21; Steiner & Alston 2000, pp. 68-69)

Today, these principles are still applied. These concepts are incorporated into
modern criminal tribunals’ statutes. Specifically, the drafiers of the ICTY’s Statute
incorporated these principles in Article 2 and Article 3. (ICTY Statute, Art. 2; ICTY

Statute, Art. 3)

l7

Peace Time

Historically, international customary law solely encompassed interactions among
countries during peace time. (Buergenthal et al 2002, pp. 2-3; Smith 2003, pp. 7-11) For
example, customary law regulated business transactions. (Buergenthal et al 2002, pp. 2-3;
Smith 2003, pp. 7-11) The international legal community rarely intervened in how a
Nation treated its citizens. (Buergenthal et al 2002, pp. 2-3; Smith 2003, pp. 7-11) The
way a Nation treated its people was exclusively within domestic jurisdiction because
citizens were viewed as properties of the State. (Buergenthal et al 2002, pp. 2-3; Smith
2003, pp. 7-11)

The jurisprudence on aliens12 altered this ancient approach. When an individual
left his/her original Nation to reside in another State, the individual was still considered
the original Nation’s property. (Buergenthal et al 2002, pp. 2-3; Smith 2003, pp. 7-11) An
injury to an alien represented an injury to that individual’s Nation. (Buergenthal et al
2002, pp. 2-3; Smith 2003, pp. 7-11) Therefore, a State can impose remedies because the
State was banned via its citizen. (Buergenthal et a1 2002, pp. 2-3; Smith 2003, pp. 7-11)

As the contemporary human rights movement blossomed, a shift in the
jurisprudence highlighted human rights rather than the Nation’s rights. (Buergenthal et al
2002, pp. 2-3; Smith 2003, pp. 7-11) The judicial decisions began to assert that aliens
possessed “fundamental human rights.” (Buergenthal et al 2002, pp. 2-3; Smith 2003, pp.
7-11) In a natural progression, the lawsuits cited injuries to a human being rather than
injuries to the State through a citizen. (Buergenthal et al 2002, pp. 2-3; Smith 2003, pp. 7-

11)

 

'2 “A foreign born person who has not qualified as a citizen of a country.” (Black 1990, p. 71)

18

As the jurisprudence developed, the courts’ decisions transformed the manner by
which society viewed a human being’s worth. As this concept grew, institutions were
developed to protect human beings in an international jurisdiction. One of the ICTY’s
purposes is to prosecute individuals who harm other individuals in Yugoslavia from 1993
to 1999. Specifically, the drafters of the ICTY Statute incorporated this principle through
providing protection to citizens in peace time through criminalizing crimes against
humanity, Article 5.

Contemporary lntemational Human Rights
Modern human rights law has emerged since World War 11. (Smith 2003, pp. 26-

 

36) A reason for this movement was to prevent the duplication of the horrific human
rights offenses committed by the Nazi regime. (Smith 2003, pp. 26-36; Powell 2002, pp.
30-35) Two significant institutions emerged: the United Nations and the Nuremberg
Criminal Tribunal. (Buergenthal et a1 2002, pp. 26-28; Smith 2003, pp. 27-92; Steiner &
Alston 2000, pp. 137-142)

Many Nations were compelled to address “the problems of mass violations of
human rights.” (Buergenthal et al 2002, pp. 26-28; Smith 2003, pp. 27-92; Steiner &
Alston 2000, p. 137-142) These countries realized that documents needed to be
developed to promote ftmdamental human rights. (Buergenthal et al 2002, pp. 26—28;
Smith 2003, pp. 27-92; Steiner & Alston 2000, pp. 137-142) Drafting" and adopting”
the United Nation’s Charter (“Charter”) promoted these ideals because the Charter
utilized explicit language that articulates the inherent equality of every individual.

(Buergenthal et al 2002, pp. 26-28; Smith 2003, pp. 27-92; Steiner & Alston 2000, pp.

 

'3 The UN Charter was drafted in San Francisco in 1945. (Buergenthal et al 2002, pp. 27-34)
’4 The UN Charter was put into force on Oct. 24, 1945. (Buergenthal et312002, pp. 27-34)

19

137-142) By adopting the Charter, the United Nations was created, a current diplomatic
body, to promote these ideals. (Buergenthal et al 2002, pp. 26-28; Smith 2003, pp. 27-92;
Steiner & Alston 2000, pp. 137-142)

The United Nations’ principal responsibility is to maintain international peace and
security because this status promotes a “general respect for human rights and
fundamental freedoms.” (Smith 2003, pp. 26-27; UN. Charter, Chapter IX, Art. 55)
Nations can actually concentrate upon maintaining respect for individuals’ autonomy and
standard of living during peace time. (Smith 2003, pp. 26-27) By signing the United
Nations Charter, each Nation pledges to assume joint and separate responsibility within
the Organization to promote and achieve these ideals. (Smith 2003, pp. 26-27; UN.
Charter, Art. 56; Buergenthal et al 2002, pp. 30-34)

The United Nations has drafted various international instruments which represent,
as a whole, the lntemational Bill of Rights. (Steiner & Alston 2000, pp. 134-141; Smith
2003, pp. 39-44; Buergenthal et al 2002, pp. 34-70) The Universal Declaration of Human
Rights, the first document, was passed in 1948. (Steiner & Alston 2000, pp. 137—141;
Smith 2003, pp. 39-44; Buergenthal et al 2002, pp. 34-42) The General Assembly passed
this resolution to articulate a universal awareness of human rights and fundamental
freedoms. Although this document is not legally binding, many Nations have
incorporated these “fundamental rights” in their customary law or codes. (Smith 2003,
pp. 39-44; Buergenthal et a1 2002, pp. 34-42)

The Universal Declaration of Human Rights is one of the first international
documents that articulates an individual’s fundamental freedoms. (“UDHR”) The UDHR

explicitly lists rights and freedoms regarding an individual’s person, nationality, and

20

expectations of his/her government. (Steiner & Alston 2000, pp. 134-141; Smith 2003,
pp. 39-44; Buergenthal et al 2002, pp. 34-42) Specially, the Declaration states that
everyone is born free with a “right to life, liberty, and security of person.” (Steiner &
Alston 2000, pp. 134-141; Smith 2003, pp. 39-44; Buergenthal et al 2002, pp. 34-42)

In 1966, the United Nations drafted two treaties: the lntemational Covenant on
Civil and Political Rights (“ICCPR”) and the lntemational Covenant on Economic,
Social, and Cultural Rights (“ICESCR”). (Smith 2003, pp. 45-50; Buergenthal et a1 2002,
pp. 34-70) Similar to the UDHR, the ICCPR explicitly articulates the fundamental
freedoms and individual’s rights. (Smith 2003, pp. 39-44; Buergenthal et al 2002, pp. 34-
70) After signing the treaty, the Nations are under immediate obligation to respect the
articulated rights. (Smith 2003, pp. 39-44; Buergenthal et a1 2002, pp. 34-70)

The ICCPR also incorporated an enforcement policy to ensure that States were
complying with the treaty. (Smith 2003, pp. 39-44; Buergenthal et a1 2002, pp. 45-49)
The Human Rights Committee is a reporting system by which States can report human
rights abuses to the United Nations for further investigation. (Smith 2003, pp. 49-59;
Buergenthal et a1 2002, pp. 49-59) ICCPR amendments have allowed individuals to file
petitions against various States. (Smith 2003, pp. 49—59; Buergenthal et a] 2002, pp. 49-
59) This remedy, however, is only permitted if all other domestic remedies have been
exhausted. (Smith 2003, pp. 49-50; Buergenthal et a1 2002, pp. 49-50)

The ICESCR requires Nations’ cooperation, individually and/or through
international assistance, to ensure human rights regarding economic and technical issues.
(Steiner & Alston 2000, pp. 245-249; Smith 2003, pp. 47-49) The rights expressed in the

ICESCR concern an individual’s right to be educated and employed in a safe working

21

environment. (Buergenthal et al 2002, pp. 64-69) ICESCR also articulates an
individual’s physical and mental health rights. (Buregenthal et al 2002, pp. 64-69)

The ICESCR requires different obligations than the ICCPR because the Nations
pledge only to be “progressive or programmatic” in their responsibilities to the United
Nations. (Steiner & Alston 2000, pp. 245-248; Smith 2003, pp. 47-49) The ICESCR does
not require a Nation to immediately comply with the treaty. (Steiner & Alston 2000, pp.
245-248; Smith 2003, pp. 47-49) The United Nations also applies different standards to
determine each Nation’s compliance because of the different standards of living between
each country. (Steiner & Alston 2000, pp. 245-248; Smith 2003, pp. 47-49)

The ICESCR does not establish any interstate or individual complaint system.
(Steiner & Alston 2000, pp. 245-248; Smith 2003, pp. 47-49; Buergenthal et al 2002, pp.
69-70) The treaty requires a Nation only to submit a progress report. (Steiner & Alston
2000, pp. 245-248; Smith 2003, pp. 47—49; Buergenthal et al 2002, pp. 69-70) This
progress report should articulate the Nation’s adopted measures in observing its
obligations to the ICESCR. (Steiner & Alston 2000, p. 245-248; Smith 2003, p. 47-49;
Buergenthal et a1 2002, p. 69-70)

In 1976, various Nations ratified the two covenants. (Smith 2003, p. 46) This
ratification secures the rights articulated in the lntemational Bill of Rights. (Smith 2003,
p. 46) International human rights could be adjudicated in an international jurisdiction
rather than be exclusively enforceable within a domestic jurisdiction. (Smith 2003, p. 46)

Even though these various documents articulate numerous fundamental freedoms
and human rights, the United Nations does not possess the power to enforce these human

rights ideals. Under Resolution 1503, the United Nations delegates these powers to other

22

organizations, such as the High Commissioner of Human Rights or empowering ad hoc
tribunals to prosecute gross human rights violations. (U. N. Resolution 1503; Buergental
et al. 2002, pp. 101-105).
International Criminal Tribun_al_s

The Nuremberg Criminal Tribunal marked the second remarkable development of
the human rights movement after World War 11. (Smith 2003, p. 27) The London Charter
created this Tribunal to “try and punish the major war criminals of the European Axis
countries.” (London Charter, 1945) The Nuremberg Tribunal serves as an extraordinary
precedent because the agreement holds individuals rather than Nations responsible for
their participation in violating international human rights doctrines. (Smith 2003, p. 27)

The United Nations Security Counsel relied on the precedent set by the

Nuremberg Criminal Tribunal in creating both the ICTY and lntemational Criminal
Tribunal for Rwanda (“ICTR”). (Smith 2003, p. 27) United Nations Charter, Chapter VII
vests authority in the Security Council to create a tribunal in order to maintain
international peace and security. (United Nations Charter, Chapter VII) In 1993, Security
Council created the ICTY, the third ad hoc international criminal tribunal, to restore and
maintain peace within the former Yugoslavia. (United Nations Security Council
Resolution 827, 1993 p. 1) During this time, the Security Council detected a threat to
international peace and security because numerous homicides in the area violated
international humanitarian law. (United Nations Security Council Resolution 827, 1993
p.1) The Security Council assumed that prosecuting individuals for their criminal actions
would “contribute to the restoration and maintenance of peace.” (United Nations Security

Council Resolution 827, 1993 p.1) By 1995, the ICTY began its work in The Hague,

23

Netherlands. According to the ICTY website, the tribunal has publicly indicted over 57
individuals and convicted 26 individuals. (ICTY, 2005)

In 1995, the Security Council created the lntemational Criminal Tribunal for
Rwanda (ICTR), the fourth ad hoc international criminal tribunal, to prosecute the
perpetrators of genocide of the Tutsi people. (ICTR Statute, Art. 1; UN. Resolution 955;
DeFrancia 2001, p. 1387-1388) In 1994, the Hutu, the ethnic majority group, killed over
800,000 Tutsi and politically moderate Hutu during a three-month civil war. (Powers
2002, p. 334) In 1997, the ICTR began its work in Arusha, Tanzania. (Power 2002, p.
334) According to the ICTR website, the ICTR has publicly indicted over 54 individuals
and convicted 10 criminals. (ICTR, 2005)

On July 1, 2002, sixty countries ratified the Rome Treaty, a document that created
the first permanent international criminal court (ICC), the fifth international criminal
tribunal. (Rome Treaty, 1998; DeFrancia 2001, pp. 1388-1390) Most importantly,
similar to the ICTY and ICTY, the ICC can prosecute specific international human rights
crimes. (ICTY Statute, 1993; ICTR Statute, 1995; Rome Treaty, 1998) Specifically, the
ICTY and ICTY will be models for the manner in which international criminal tribunals
prosecute individuals, both procedurally and substantively. (May & Wierda 2002, pp.
xiii-xxi)
lntemational Criminal Tribun_al’s Jurisdiction

The offenses articulated in the lntemational Criminal Tribunals’ Statutes
incorporate the fundamental rights protected through various instruments implemented by
the United Nations. (Smith 2003, pp. 205-218) Specifically, these documents state that an

individual’s most fundamental right is his/her right to life. (African Charter on Human

24

and People’s Rights, Art. 4; American Convention on Human Rights, Art. 4; European
Convention on the Protection of Human Rights and Fundamental Freedoms, Art. 7;
lntemational Covenant on Civil and Political Rights, Art. 6; Universal Declaration of
Human Rights, Art . 3) The right to life is the ultimate right because all other rights
depend upon its pre-existence. (Smith 2003, pp. 205-218)

Within the United Nations, all countries are required to enact legislation to punish
perpetrators who deprive individuals of their right to life. (Smith 2003, p. 206) This
obligation could include adopting legislation that imposes punishment for murder.
(Smith 2003, p. 206) According to most domestic statutes, codes, or case law, murder
comprises three legal elements: First, a victim must be dead. Second, the defendant(s)’
direct acts or omissions resulted in the victim’s death. Finally, the defendant(s)

committed these acts with the intention to kill the victim. (Krnojelac, Trial Judgment,

March 15, 2002 at 1' 324; Kvocka et al., Trial Judgment, Nov. 2, 2001 at 11' 132; Krstic,
Trial Judgment, Aug. 2, 2001 at 11' 485 ; Kordic and Cerkez, Trial Judgment, Feb. 26,
2001 at 1" 235-236; Kupreskic et al, Trial Judgment, Jan. 14, 2001 at 11 560-561;
Blaskic, Trial Judgment, March 3, 2000 at 11' 217; Jelisic, Trial Judgment, Dec. 14, 1999
at 11' 35; Delalic et al, Trial Judgment, Nov. 16, 1999 at1I'1l' 422, 439; Vasiljevic, Trial

Judgment, Nov. 29, 2002 at 1' 205)

The following discussion articulates a general description of the ICTY’s
jurisdiction over six versions of murder: willful killing, murder under Article 3, genocide,
murder under Article 5, extermination, and persecution. These six crimes maintain the
essence of historical and modern human rights law by incorporating three overarching

legal categories: war crimes, genocide, and crimes against humanity.

25

War Crimes

War crimes, otherwise known as humanitarian law, crirninalized particular
behaviors during armed conflicts. (Smith 2003, pp. 12-14; Buergenthal et al 2002, pp.
314-330) Customary laws, treaties, and conventions provide protection for individuals
refilsing to partake in the armed conflict. (Smith 2003, pp. 12-14; Buergenthal et al 2002,
pp. 314-330) According to the ICTY’s jurisprudence, an individual can be convicted for
war crimes via two different avenues, Article 2 or Article 3.

Grave Crimes against the Geneva Convention of 1949, Article 2, codified willful
killing as a form of homicide. The accused must intend to cause the victim’s death. The
perpetrators must also kill a particular group of individuals”, otherwise known as
“protected persons”. (Delalic et al., Appeals Chamber, Feb. 20, 2001 at W 422, 423)
These protected persons include “individuals at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to
the conflict or Occupying Power of which the are not nationals.” (Delalic et al., Appeals
Chamber, Feb. 20, 2001 at 111' 422, 423) The jurisprudence has also restricted the
protected person definition by not including individuals protected by Geneva Convention
for the Amelioration or the Condition of the Wounded and Sick in Armed Forces in the
Field of August 12, 1949, the Geneva Convention for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked members of Armed Forces at Sea of August 12,

1949, and the Geneva Convention relation to the Treatment of Prisoners of War of
August 12, 1949. (Delalic et al., Appeals Chamber, Feb. 20, 2001 at “I 422, 423)

Therefore, the list of acceptable “protected persons” is an extremely restricted definition.

 

'5 Article 4 of the Geneva Convention Relative to the Protection of Civilians Persons in the War.

26

Article 3, the residual clause, applies to all violations of humanitarian law not
covered by Article 2, 4, and 5. (Delalic et al., Appeals Chamber, Feb. 20, 2001 at TT

422, 423) This clause is designed to ensure that no serious violation of international

humanitarian law is stricken from the ICTY’s jurisdiction. (Delalic et al., Appeals
Chamber, Feb. 20, 2001 at 1111' 422, 423) Article 3 imposes individual criminal liability
for serious breaches of humanitarian fundamental rules. (Delalic et al. , Appeals
Chamber, Feb. 20, 2001 at 111' 422, 423) Murder is considered a serious breach of
humanitarian fundamental rules because the perpetrator is depriving the victim to his/her
right to life. (Delalic eta1., Appeals Chamber, Feb. 20, 2001 at 111' 422, 423)

Article 3’s purpose is to provide minimum guarantees for all individuals. (Delalic
et al., Appeals Chamber, Feb. 20, 2001 at W 422, 423) Article 3 does not have the
similar restrictions as described in Art. 2. (Delalic et al., Appeals Chamber, Feb. 20, 2001

at H 422, 423) Victims of an Article 3 violation can include an array of individuals.

(Delalic et al., Appeals Chamber, Feb. 20, 2001 at 1'1' 422, 423) The only formal
requirement is that the victim is not a participant in the armed conflict. (Delalic et a1. ,
Appeals Chamber, 1'11 422, 423)

Genocide

Genocide is the “a denial of the right of existence of entire human groups.” (U .N.
General Assembly Resolution 96(1), 1946) Genocide is a relatively modern term that
was coined subsequent to World War 11. (Powers 2002, pp. 53-60; Smith 2003, pp. 213-

214) The word “genocide” derives from both Greek and Latin roots: “genos” means race

27

or tribe in Greek, while “caedere” means to kill in Latin. (Stakic, Trial Judgment, July 31,
2003 at 1518)

In 1948, the United Nations adopted the first international instrument defining the
legal offense of genocide, the Convention on the Prevention and Punishment of the
Crimes of Genocide. (Power 2002, pp. 53-60; Smith 2003, pp. 213-215) The ad hoc
tribunals and the lntemational Criminal Court have incorporated this document into their
jurisdictional statutes. (ICTY Statute, Art. 4; ICTR Statute, Art. 2) The ICTY is one of
the first tribunals to include this crime into their jurisprudence because neither
Nuremberg nor the Tokyo War Crime Tribunal incorporated this crime in their
prosecution tactics.l6 (Smith 2003, pp. 213-215)

The Prosecution must establish three legal elements to prove genocide. First, the
Prosecution must establish at least one of five enumerated offenses in the statute

occurred, which includes killing members of a national, ethnic, racial, or religious group.
(Stakic, Trial Judgment, July 31, 2003 at 11 513-519; Krstic, Trial Judgment, Aug. 2,
2001 at “T 542-543) These specific enumerated offenses maintain genocide theory

integrity because Genocide Convention’s policy prohibits the physical or biological
destruction of human groups. (Smith 2003, pp. 213-215)

Second, the Prosecution must establish that the offender committed the criminal
act against a specific national, ethnic, racial, or religious group. (Stakic, Trial Judgment,

July 31, 2003 at 1' 512; Buergenthal et a1 2002, pp. 682-686) However, a clearly

 

l"’When interpreting the genocide, the ICTY Trial Chamber must rely on the following documents: The
Convention against Genocide interpreted in accordance with the general rules of interpretation of treaties
set out in Article 31 and 32 of the 1969 Vienna Convention on the Laws of Treaties, the object and purpose
of the Genocide Convention as reflected in the traveaux préparatoires, subsequent practices including the
jurisprudence of the ICTY, ICTR, and national courts, and publications of international authorities. (Stakic,

Trial Judgment, July 31, 2003 1' 501)

28

articulated definition of this “protected group” was not drafted in the Genocide
Convention. (Krstic, Trial Judgment, August 2, 2001 at 1'1 541 , 552-556) The Trial
Chamber must rely on various sources to determine which groups are protected under the
Statute. (Krstic, Trial Judgment, August 2, 2001 at 1'1' 541, 552-556)

Finally, the Prosecution must establish that the accused possessed a specific

intention, dolus specialis, to “destroy the targeted group in whole or in part as a separated

and distinct entity.” (Stakic, Trial Judgment, July 31, 2003 at 1' 520; Jelisic, Appeal

Judgment, July 5, 2001 at 11 45-46) This intention is important because

killing an individual member of the targeted group, the perpetrator does not
thereby only manifest his hatred of the group to which his victim belongs, but also
knowingly commits this act as part of a wider-ranging intention to destroy that
national, ethnic, racial, or religious group of in which a victim is a member.

(Jelisic, Trial Judgment, Dec. 14, 1999 at 1' 79)
Although it is unnecessary to establish the community’s defacto destruction, this

genocidal intent can be inferred from either “facts, the concrete circumstances, or a

pattern of purposeful action.” (Krstic, Appeals Judgment, April 19, 2004 at 11' 8-13;

Stakic, Trial Judgment, July 31, 1999 at 1' 522) For example,

Although the perpetrators of genocide need not seek to destroy the entire group
protected by the Convention, they must view the part of the group they wish to
destroy as a distinct entity which must be eliminated as such. A campaign
resulting in the killings, in different places spread over a broad geographical area,
or a finite number of members of a protected group might not thus qualify as
genocide, despite the high total number of casualties, because it would not show
intent by the perpetrators to target the very existence of the group as such.
Conversely, the killing of all members of the part of a group located within a
small geographical area, although resulting in a lesser number of victims, would
qualify as genocide if carried out with the intent to destroy the part of the group as
such located in this small geographical area. (Krstic, Trial Judgment, Aug. 2,

2001 11 590)

29

This intent requirement is critical factor because it distinguishes genocide from various
other mass crimes, such as extermination and persecution.

Crimesggainst Humanity

Crimes against humanity offenses, Article 5, protect civilians”. The perpetrator
must commit “widespread or systematic” attacks against civilians to be distinguished
from crimes prosecuted in national courts. (Stakic, Trial Chambers, July 31, 2003 at 11'
621-626) According to the ICTY jurisprudence, the perpetrator must have killed the
victims within the armed conflict’s vicinity. (Stakic, Trial Chambers, July 31, 2003 at 11'
621-626) Furthermore, the perpetrator must be aware that his criminal acts must be part
of a larger attack upon the civilian population. (Sta/dc, Trial Chambers, July 31, 2003 at

1'" 621-626) Contrary to war crimes, a relationship does necessarily exist between the

perpetrator’s acts and armed conflict. (Stakic, Trial Chambers, July 31, 2003 at 1'1 621-

626)

Article 5 lists nine severe crimes against civilians that infringe upon the
“recognized values of mankind and humanity.” (ICTY Statute, Art. 5) One-third of these
enumerated crimes articulate to a form of homicide: murder, extermination, and
persecution. (ICTY Statute, Art. 5) The variation between these crimes depends upon
either the number of killed individuals or the perpetrator’s intent. (ICTY Statute, Art. 5)
For example, under Article 5(a), a perpetrator can be convicted for murder because he

killed a single civilian within the armed conflict’s vicinity. (Blaskic, Trial Judgment,

March 3, 2000 at 11' 216-217)

 

'7 A civilian means a person not employed by the military. A civilian could also mean a person positioned
hors de combat . (Knoops 2003, p.36)

30

In contrast, under Article 5(b), the Trial Chamber can convict an individual for

extermination if the perpetrator killed numerous civilians within the armed conflict’s
vicinity. (Stakic, Trial Judgment, July 31, 2003 11638-640; Akayesu, Trial Judgment,
Sept. 2, 1998 at 11 591-592) Although this offense references mass killings,
extermination does not require that the victims share any common characteristic, such as
national, ethnic, or religious origins. (Stakic, Trial Judgment, July 31 , 2003 at 1'1 63 8-
640; Krstic, Trial Judgment, Aug. 2, 2001 at 1'1 500-503) Extermination only requires
the perpetrator’s intent to annihilate a mass of people. (Krstic, Trial Judgment, Aug. 2,

2001 at 1' 500-503; Stakic, Trial Judgment, July 31, 2003 at 1'1 641-642)

Under Article 5(b), persecution is a gross or blatant denial of a fundamental right

articulated in international customary law. (Krnajelac, Appeals Judgment, Sept. 17, 2003

at 1' 185; Krnojelac, Trial Judgment, March 15, 2002 at 1 431; Vasiljevic, Trial

Chamber, Nov. 29, 2002 at 1 244; Stakic, Trial Judgment, July 31, 2002 at 1' 732)
Persecution is designed to punish individuals that destroy a group or part of a group.

(Kmojelac, Appeals Judgment, Sept. 17, 2003 at 1' 185; Krnajelac, Trial Judgment,

March 15, 2002 at 1 431; Vasiljevic, Trial Chamber, Nov. 29, 2002 at 1' 244) Unlike
genocide, the perpetrator does not necessarily seek to destroy the community. (Krnojelac,

Appeals Judgment, Sept. 17, 2003 at 1' 185; Vasiljevic, Trial Chamber, Nov. 29, 2002 at
1' 244) Killings can become a form of persecution if the accused murdered the

individuals for discriminatory purposes. ( Vasiljevic, Trial Judgment, Nov. 29, 2002 at 1

31

244; Stakic, Trial Judgment, July 31, 2003 at 1 732; Krnojelac, Trial Judgment, March
13, 2002 at 1' 431)
Summm

This chapter presents a general background in international tribunals. The history
of international human rights explains the fundamental legal theories underlying the
ICTY Statute. The history of the international tribunals discusses the ICTY’s

significance. Furthermore, the brief description of the six forms of homicide explains the

general distinctions between various forms of homicide within the ICTY’s jurisdiction.

32

CHAPTER 111: INTERNATIONAL CRIMINAL PROCEDURE

Introduction

This chapter reviews the different theories and procedures detected in both the
inquisitorial and adversarial legal systems. This review is necessary because the ICTY is
currently struggling to develop international criminal procedural methods that incorporate
both systems. Specifically, the ICTY is attempting to integrate more documentary
evidence in the trial proceedings to shorten the trial process.
General Theory

Trials are one aspect of the judicial process that attempts to balance two
competing ideals: order and liberty. (Luna 1999, pp. 400-401) According to Herbert
Packer, two judicial process models articulate these ideals distinctively. (Luna 1999, pp.
400-401) The crime control model maintains social order at the price of individual
freedom because the model’s ultimate goal is to suppress crime. (Luna 1999, pp. 400-
402) A failure to “rein in criminal conduct” slowly undermines order and leads to “a
broad contempt for the rule of law.” (Luna 1999, pp. 401-402) The crime control model
requires efficient law enforcement to “filtering suspects, ascertaining goals, and imposing
punishment.” (Luna 1999, pp. 401-402) Extensive criminal procedural rules impede this
model because the rules decrease the system’s efficiency. (Luna 1999, pp. 403-404)

The crime control model is compatible with this hierarchical model form of
government. (Luna 1999, pp. 400—402; Kagan 2001, pp. 10, 70-74) According to
Darnaska, the hierarchical model emphasizes a strong and professional bureaucracy to

deliver effective crime regulations. (Kagan 2001, pp. 70-74) The hierarchical model

33

emphasizes consistent case-by-case decision making by conforming to official
government policies. (Kagan 2001, pp. 70-74)

Alternatively, the due process model preserves an individual’s autonomy, dignity,
and liberty through many procedural rules. (Luna 1999, pp. 404-406) These procedural
rules limit the Govemment’s power to investigate, prosecute, and punish an individual.
(Luna 1999, pp. 404-406) This model maintains that errors, bias, and prejudice can infest
the criminal justice system. These mistakes and emotions can be remedied through
“robust procedural safeguards.” (Kagan 2001, p. 71) In the United States, these
procedural safeguards are incorporated in the Fourth, Fifth, and Sixth Amendments of the
Constitution. (U .S. Const. Amend. IV, V, VI)

The due process model complements a coordinated organizational government.
(Luna, 1999, pp. 404-406; Kagan 2001, p. 71) According to Damask, a coordinated
organizational govermnent is fragmented among several different government bodies.
(Kagan 2001, p. 71) These multiple divisions have the capacity to inspect other
governmental branches. (Kagan 2001, p. 71) This safeguard counteracts the potential for
political bias in a centralized government. (Kagan 2001, p. 71) If the government is not
centralized, citizens can challenge the govemment’s capacity via the court system.
(Kagan 2001, p. 71)

Judicial systems across the world represent these models in one form or another.
Each judicial system represents that particular society’s priorities. (Kagan 2001, p. 71)

Over time, two primary systems have developed: inquisitorial and adversarial system.

34

InquisitorialSystem

The inquisitorial system, otherwise known as the civil system, has evolved in
Continental Europe, especially in France and Germany. (Langbein 1979, pp. 206-210;
Langbein 1985, pp. 826-828; Safferling 2001, pp. 3, 5-9) This system’s roots lie in the
Inquisitions in the Middle Ages. (Safferling 2001, pp. 5-9, May and Wierda 2002, pp. 18;
Nijboer 1997, pp. 90-91) This system is still practiced in these countries and its former
colonies. (Safferling 2001, pp. 5-9; Langbein 1979, pp. 206-210, Langbein 1985, pp. 826-
828)

Although the purpose behind both the inquisitorial and adversarial systems is to
discover truth, the theory of truth that drives the systems differs. (Weigend 2003, pp. 159-
172) In the inquisitorial system, the system’s philosophy maintains that “substantive”
truth can be established during a criminal proceeding with sufficient effort. (Weigend
2003, pp. 161-164) To discover the substantive truth, the State entrusts a neutral
inquisitorial magistrate to direct the investigations and trial process. (Langbein 1979, pp.
206-208) The judge is a professional bureaucrat; this role is compatible with the
hierarchical model. (Kagan 2001, p. 11) The judge bears the main responsibility for
gathering and analyzing the evidence. (Kessel 1998, pp. 801-802, May & Wierda 2002,
pp. 17-19; Kagan 2001, p. 11) All the evidence is entered into an official dossier. The
judge constantly develops the dossier during the entire legal process. (May & Wierda
2002, pp. 17-19)

This system presumes that substantial truth will prevail by understanding the
entire event in question. (Weigend 2003, pp. 159-164) Similar to the to the crime control

model, few procedural rules exist because all relevant evidentiary information is

35

admissible. (May & Wierda 2002, pp. 17-19) Witnesses must be neutral parties because
they must reveal all information he or she knows. (Weigend 2003, pp. 159-161)

This necessity for neutrality is reflected by how the court processes the witnesses.
First, the formulation of the witness list maintains witness neutrality. (Wolfe 1997, pp.
302-303) The lawyers nominate particular lay witnesses to the court who will aid the
client’s case. (Wolfe 1997, pp. 302-303) The court calls the witnesses. (Wolfe 1997, pp.
302-303) To avoid party-motivation issues, the lawyers never prepare the witness.
(Wolfe 1997, pp. 302-303)

Second, the court hires all expert witnesses. (Kagan 2001, p. 107) This selection
process reduces the risk regarding witness bias because the witness is not paid by either
party to present an opinion. (Kagan 2001, p. 107; Langbein 1985, pp. 835-836)
According to the court’s philosophy, the neutrality maintains the expert’s credibility.
(Kagan 2001, p. 107)

Finally, the judge, rather than the attorneys, questions both lay and expert
witnesses during the trial process. (May & Wierda 2002, pp. 17-19) The inquisitorial
philosophy assumes that this process reveals the substantial truth because the attorneys
are not presenting questions which are purely related to their client’s point of view.
(Weigend 2003, pp. 160-161) After the testimony, the judge dictates a testimonial
summary into the dossier. (Wolfe 1997, pp. 302-303) During this process, the lawyers
advocate for their client’s side by suggesting improvements in the wording “in order to
preserVe or to emphasize nuances important to one side or the other.” (Wolfe 1997, pp.
302-303) These summaries, as well as other forms of evidence, are what the bench will

rely on in assembling its final decision. (Wolfe 1997, pp. 302-303)

36

Adversarial System

The adversarial system evolved in Anglo-Saxon countries. (Safferling 2001, pp.
9-16) The adversarial system co-exists with the common law system. (Safferling 2001,
pp. 9-16) This system is still practiced in the United Kingdom and its former colonies,
such as the United States. (Safferling 2001, pp. 9-16)

The adversarial system concerns itself with the fairness of the proceeding because
the Anglo-American philosophy is “skeptical about man’s ability to discover the
‘substantive’ truth.” (Weigend 2003, pp. 159-161) Procedural truth, the adversarial
standard of truth, is based upon parties conforming to procedural rules. (Weigend 2003,
pp. 159-161) The verdict’s legitimacy is based upon complying with the rules. (W eigend
2003, pp. 159-161)

The adversarial system relies on the premise that in order to establish the truth,
the opposing parties challenge the accuracy of events and witness’ characters. (Weigend
2003, pp. 159-161) Through this “battle,” a “composite picture of the truth” will emerge
during a short time span. (Weigend 2003, pp. 159—161; Safferling 2001, pp. 221-222)
Each side presents testimonial, documentary, or physical evidence to be judged by a jury,
a neutral decision maker. (Kagan 2001, pp. 107-108) The jury’s decision is based on
only the information presented during this event. (Kagan 2001, pp. 11-14) In some
situations, this decision could be based upon limited information because one or both
parties cannot present the evidence during the trial in a “legally prescribed
manner.”(Weigend 2003, pp. 159-161)

This system requires many active participants because the adversarial system

thrives in a coordinated organizational government. (Kagan 2001, pp. 107-108) The

37

defendant’s lawyer prepares a defense on his client’s behalf. (Kagan 2001, p. 105; May &
Weirda 2002, p.17-18; Pizza 1998, p. 844-845) The defense may call wimesses and
present exhibits; however, the primary defense involves cross-examination. (Langebein
1985, pp.833-834; May & Weirda 2002, pp. 328-330) One purpose of cross-examination
is to test the opposite side’s witnesses’ credibility or to reveal inconsistencies in the
witnesses’ direct examination. (Langebein 1985, pp. 833-834, May & Weirda 2002, pp.
328-330) The philosophy underlying cross-examination is that the accused has an
opportunity to publicly question his/her accuser. (Langebein 1985, pp. 833-834, May &
Weirda 2002, pp. 328-330)

Since the truth-fmding is performed in a restricted temporal span, various
procedural rules, such as the Rules of Evidence, have been created to protect the
accused’s rights. (Weigend 2003, pp. 164-165; May & Weirda 2002, pp. 18-19) The
adversarial system is compatible with the due process model because both systems thrive
on many procedural rules to protect the defendant’s due process rights. (Kagan 2002, p.
11-14) The adversarial system assumes that lay individuals cannot “digest and/or
adequately process” particular types of evidence because it preys on an individual’s
emotions rather than critical analytical skills. (Weigend 2003, p. 165-166) The Rules of
Evidence excludes this type of prejudicial evidence because the lay juror may be
persuaded by his emotions rather than by analysis of the Defense’s argument. (Weigend
2003, p. 165-167)

During this entire trial, the judge is “gatekeeper” of the procedural rights.
(Weigend 2003, pp. 303-305) One of the primary purposes of a trial judge is to maintain

a fair trial by protecting the defendant’s rights against the State. (Weigend 2003, pp. 303-

38

305) The accused’s rights must be protected to “attempt to provide some balance of
powers between the parties given that State’s vast law enforcement resources.” (Weigend
2003, p. 304; Pizza 1998, pp. 851-852) Contrary to the civil system, the judge is passive
during the testimony and rarely asks the various witnesses’ questions. (Kagan 2001, pp.
107-108)

Even with these procedural safeguards, Horowitz argues that the truth in the
adversarial system is inherently distorted because the role of adversarial attorneys.
(Horowitz 1997, pp. 23-68) The adversarial attomey’s role is to depict their clients in the
best possible light via the admissible evidence. (Horowitz 1997, pp. 23-68)

In this “spin doctor” role, the attorneys may alter the truth to perform their
responsibilities to the court and to their client, a process which is not initiated in the
inquisitorial system. (Horowitz 1977, pp. 23-68)

Trial Process

Depending on the system, striking disparities exist regarding the trial lengths. In
the inquisitorial system, the trial lengths are relatively shorter than those found in the
adversarial system. In a study conducted in 1969, researchers found that 47% criminal
trials continued only for about 1/3 of a business day. (Langbein 1979, p. 209) The
researcher estimates that 1/3 of a business day is approximately two hours. (Langbein
1979,p.209)

Researchers revisited the German trial system in the late 1980’s to verify the
original study. The researchers discovered that the most serious trials lasted about 2.8

days and less serious trials lasted only 2.4 days. (Kagan 2001, p. 87) This study

39

reconfirms that trials in the inquisitorial system are relatively shorter. (Langbein 1979, p.
207-209; Kagan 2001, p. 82-89)

Alternatively, trials in the adversarial system extend over longer periods of time.
In 1968, a felony trial in Los Angles extended over 7.2 days. (Kagan 2001, p. 82) Similar
to the researchers in Germany, social scientists revisited the American trial system in the
mid-1980’s. (Kagan 2001, p. 82) Researchers revealed that felony trials, on the average,
lasted over fourteen hours. (Kagan 2001, p. 82) Homicide trials lasted around forty-four
hours. These trials could linger over a two-week period. (Kagan 2001, p. 82)

The striking disparity exists because each system maintains different procedural
requirements. (May & Wierda 2002, pp. 17-19) These procedural rules preserve the
integrity of the defendant’s rights. (Safferling 2001, pp. 291-292) Each trial’s fairness
and credibility depends upon how the court maintains the integrity of the defendant’s
rights.

The adversarial system requires a layman jury to perform an independent fact-
finding function. (May & Wierda 2002, pp. 18-19) The layman jury also determines the
defendant’s guilt. (May & Wierda 2002, pp. 18-19) A jury trial lengthens the trial
process significantly because of required procedures to preserve the juror’s impartiality.
(Kagan 2001, p. 107-108) For example, in the United States, lawyers adhere to a set of
exclusionary rules, Rules of Evidence, to prevent juror bias or error of fact. (U .S. Fed. R.
Evidence, 2004)

Under the inquisitorial system, these procedural requirements do not exist because
a panel of professional judges and laymen determine the defendant’s culpability.

(Langbein 1979, p. 206-208) In theory, the panel can determine and disregard prejudicial

40

evidence during deliberations. (Langbein 1979, p. 206-208) Exclusionary rules are not
required to preserve impartiality. This system attests that credibility is preserved by
requiring the panel to draft a document on how the panel compiled their decision.
(Langbein 1979, p. 206-208) These written findings can be reviewed by an appeals
board. (Langbein 1979, p. 206-208)

The trial length can be ascertained by determining how the evidence is presented
to the court. (Horowitz 1977, pp. 23-68) In the adversarial system, the Prosecutor
possesses the burden of proof beyond reasonable doubt. (Safferling 2001, pp. 256-260)
The trial may be longer because the Prosecution must present sufficient inculpatory18
evidence to establish all the legal elements of the crime. (May & Wierda 2002, p. 18;
Kagan 2001, pp. 107-108)

Alternatively, in the inquisitorial system, the panel must be satisfied that the trial
proceeding reveals the truth. (Langbein 1985, pp. 826-828) As previously stated, the
court determines the defendant’s culpability via the dossier, which includes both
exculpator'y'9 and inculpatory evidence. (Kagan 2001, pp. 87-88) The trial is not
consumed by the Prosecution establishing every contestable point. (Kagan 2001, pp. 107-
108)

In the international jurisdiction, the court must balance the two legal philosophies
in an effective and time-efficient manner, which can be a disconcerting issue. (May &
Wierda 2002, pp. 17-19) The rest of this chapter will discuss international jurisdiction in

more detail as well as the issues concerning an efficient and effective trial system.

 

'8 Evidence that intents to incriminate (Black 1990, p. 768)
’9 Evidence that intents to tends to clear an individual from alleged fault or guilt (Black 1990, p. 566)

41

IntemzLional Criminal Procedure

In a criminal trial, the accused has the right to any orderly proceeding that
includes an array of procedural due process rights.20 These procedural due process rights
can include the right to be heard and the right to confront every material fact in question.
(Black 1990, pp. 500-501) Maintaining these due process rights is one of the signposts
for a fair trial. (Black 1990, p. 596; DeFrancia 2001, pp. 1437-143 8)

A fair trial is “a proceeding which the judgment is rendered only after a trial
consideration of the evidence and facts as a whole.” (Black 1990, p. 596) Although each
legal system maintains a different threshold standard of a “fair trial,” the several national
and international documents incorporate this concept.21 (Cogan 2002, pp. 116-119) A
government or an institution must develop a reasoned body of procedure to protect the
defendant’s due process rights to ensure that the accused receives a fair trial. (Jorda 1999,
pp. 1 80-1 81)

The ICTY has developed a version of the Rules of Evidence and Procedure to
preserve the trial process’s integrity and credibility. (Safferling 2001, pp. 291-293;
DeFrancia 2001, pp. 143 7-1439) This document encompasses approximately one-
hundred and twenty-seven rules to guarantee a balance between an effective
investigation, efficient trial process, and the defendant’s due process rights. (ICTY Rules

of Procedure and Evidence, 2004; Jorda 1999, p. 180-181) This document actually

 

2° Due Process rights are “all rights which are of such a firndamental importance as to require compliance
with due process standards of fairness and justice.”(Black 1990, pp. 501-502)

2' Magna Carta (1215), French Declaration of Rights of Man and the Citizen (1789); United States
Constitution, Article 1, Article 3 (1791); United States Bill of Rights, 5th Amendment, 6'” Amendment, 7‘h
Amendment (1791), 14th Amendment (1868); American Declaration of Rights and Duties (1948), Article
26, Universal Declaration of Human Rights (1948), Articles 10 and 11; European Convention of Human
Rights (1950), Articles 6 and 7; American Convention on Human Rights (1969), Article 8; lntemational
Covenant on Civil and Political Rights (1976), Articles 14 and 15; Afiican Charter on Human and People’s
Rights (1981), Article 7; ICTY Statute (1993), Article 21

42

articulates seven minimum due process rights. (ICTY Rules of Procedure and Evidence,
2004) However, due to space, this chapter will only discuss two of the guarantees: “the
right to be tried without undue delay” and “the right to examine the witness against him.”

Speedy Trial

A speedy trial protects all parties, especially the accused, against excessive
procedural delay. (Safferling 2001, pp. 250-256) This necessary protection limits the
amount of time the accused remains uncertain of his fate. (Safferling 2001, pp. 250-256)
This certainty is extremely important because the accused is presumed innocent.
(Safferling 2001, p. 250-256) A speedy trial also maintains the public’s confidence in the
justice system because the undue delay damages the system’s credibility. (Fairlie 2003, p.
62-63)

Although the ICTY grants the right to speedy trial, neither the Statute nor the
Rules of Evidence and Procedure articulate a specific time frame to assure this
inalienable right. (ICTY Statute, Article 21; ICTY Rules, 2004) This disparity could be
inconspicuous; however, the ICTY trials have a tendency to be extremely long trials.

(Wald 2001, pp. 535-536) For example, ICTY trials can be prolonged over two hundred
and fifty hearing days. (Brdam'n, Trial Judgment, Sept. 1, 2004 at 1 1180) This vast

number of hearing days can endure over two-year time frame. (Wald 2001, pp. 535-536)
Moreover, the trial phase does not include either the pre-trial or appeal phase.

The accused is usually detained in the Netherlands during this process. (Wald 2001, pp.

97-98) These proceedings could unduly extend an individual’s incarceration. (Wald 2001,

pp. 97-100)

43

Cross-examination

Cross-examination is a fundamental tool in discovering the truth in the adversarial
legal system. (Safferling 2001, pp. 283-288; May & Wierda 2002, p. 17; Langbein 1985,
pp. 833-834; Rutledge 2003/2004, pp. 176-178) The absence of cross-examination
denies the accused the opportunity to confront the witness. (Safferling 2001, pp. 283-288;
May & Wierda 2002, p. 17; Langbein 1985, pp. 833-834; Rutledge 2003/2004, pp. 176-
178) Cross-examination also allows the fact-finder the opportunity to observe the
witness’s demeanor. (Wald 2001, pp. 112-113) This visual inspection can impact the
juror opinion regarding the witness’s credibility.

The judges incorporated the defendant’s right to cross-examine the witness via
Rule 90(h) in an effort to balance the adversarial and inquisitorial system at the ICTY.
(ICTY Rule 90) Similar to the adversarial system, the parties or counsel has the right to
cross-examine the witness on “subject-matter of the evidence-in-chief and matters
affecting the credibility of the witness.” (ICTY Rule 90) The judges have also reserved
the right for the Trial Chamber to cross-examine a witness, similar to the inquisitorial
system. (ICTY Rule 90)

Currently, the ICTY is struggling to balance these two inalienable rights in its
inherent aspiration to achieve a “fair trial.” (May & Wierda 2002, pp. 327-328) Since
1999, the judges have amended the Rules of Evidence and Procedure in an effort to
expedite the trial process while maintaining the integrity of the defendant’s due process
rights. (May & Wierda 2002, pp. 327-328) One of the judicial trends is to rely on

documentary evidence rather than solely upon witness testimony to balance these

44

competing rights. (May & Wierda 2002, pp. 343-346; Wald 2001, pp. 540-542; Fairlie
2003, pp. 63-83)
Current Trends in ICTY’s Criminal Procedure

Historically, International Criminal Tribunals have relied on documentary
evidence rather than live witness testimony. In the Nuremberg Trials, Robert Jackson,
the Chief Prosecutor, intended for prosecution to rely mostly on paper. (Fairlie 2003, pp.
52-53; Rutledge 2003/2004, pp. 184-185; Wald 2001, pp.537-539) The prosecution
relied on affidavits because of “the negative ramifications that exclusion would have
upon the expediency of the proceeding, noting that the Tribunal’s acceptances of the
sworn statements were indispensable if we are going to make progress in this case.”
(Fairlie 2003, pp. 52-5 3) The prosecution utilized over 300,000 affidavits gathered fi'om
the German government and only 113 live witnesses to established war crimes and
crimes against humanityzz. (Rutledge 2003/2004, pp. 184-185)

The contemporary ad hoc tribunals oppose this paper strategy. At the inception of
the ICTY and ICTR’s, both courts preferred live testimony to establish a crime. (ICTR
Rule 90(A); ICTY Rule 90(A); Wald 2001, pp. 539-540; Fairlie 2003, pp. 54-55) Rule
90(A) states that “witnesses shall, in principle, be heard directly by the Chamber.” (ICTR
Rule 90(A); ICTY Rule 90(A); May & Wierda 2002, pp. 163-165) The Appeals Chamber
interpreted this Rule to be “the witnesses shall, as a general rule, be heard directly by the

Judges of the Trial Chamber.” (May & Wierda 2002, pp. 163-165;A1eksovski, Appeals

Chamber Decision on Admissibility of Evidence, February 16, 1999 1 10) The Appeal

 

22 The circumstances surrounding this strategy decision are rare. Since the Allies were the “unconditional
victor” of the World War II, the countries had access to all the documents. The Allies seized at least six
freight cars of documents related to the crimes. A massive paper trail was left behind because the Nazi
High Command documented every death in the concentration camps. (Fairlie 2003, pp. 52-53; Rutledge
2003/2004, pp. 184-185)

45

Chambers reasoned that live witness testimony protects the defendant’s due process
rights because the defendant has the opportunity to “obtain the attendance and
examination of the witness on his behalf”. (May & Wierda 2002, pp. 163-165;
Aleksovski, Appeals Chamber Decision on Admissibility of Evidence, February 16, 1999
at 1 10)

Live witness testimony allows the judges, the independent fact-finders, to

evaluate the witness’s credibility. (May & Wierda 2002, pp. 163-164; Kupreskic et al.,

Appeals Chamber, Decision on Appeal by Dragon Papic against Ruling to proceeding by
Deposition, July 15, 1999 at 1 18) Judge Patricia M. Wald, a former ICTY’s judge,

stresses that live testimony is critical in international prosecution to maintain the
Tribunal’s credibility because she has

seen too many instances in which witnesses on the stand have changed, reneged,

or even repudiated earlier statements which though closer in time to the events,

had not been tested in any way and were unswom. . .There is little doubt that it
would be infinitely more efficient for witnesses merely to affirm prior statements
than to give their testimony live and be cross examined on it. But the excruciating
process of facing one’s torturer, reliving awful time, and defending one’s account
on cross-examination may sometimes be indispensable to the integrity of the

Tribunal’s final product. (Wald 2001, p. 112)

Although the concept of solely relying on live witness testimony is commendable,
live testimony can overburden the court. (Fairlie 2003, pp. 59-61) The United Nations
started to notice that the ICTY trials were extremely long. (Fairlie 2003, pp. 59-61) The
General Assembly asked the Secretary-General to evaluate the efficiency of the ICTY’s
operations and functions. (Fairlie 2003, pp. 59-61) As the product of these pressures, the
ICTY judges determined that their goal was to develop a “flexible solution to enable the

judges to work with their increasing caseload and the expectations of the accused, the

victims, and the international community” by 2000. (Fairlie 2003, pp. 59-61)

46

The judges amended the Rules of Evidence and Procedure to diminish the
explicit preference for oral evidence.23 On December 2000, the judges deleted Rule
90(A). Rule 89(F) replaced Rule 90(A). (Wald 2001, pp. 548-549) Rule 89(F) states that
“a Chamber may receive the evidence of a witness orally or, where the interest of justice
allows, in written form.” (May & Wierda 2002, pp. 343) According to the case law, live
evidence should be obtained in more critical issues, such as superior or individual
responsibility. (May & Wierda 2002, pp. 343-346)

The judges have also altered the language of other procedural rules to expedite
the trial process. (Wald 2001, pp. 539-541) Rule 71 authorizes the Trial Chamber to
receive testimony via deposition or video-conference link in lieu of live testimony. (Wald
2001, pp. 539-541) When this Trial Chamber originally drafted this rule, the judges
could rely only on this rule in “exceptional circumstances.” (Wald 2001, pp. 539-541)
Exceptional circumstances could range from witness’s illness to the length of the pre-trial
stage. (Wald 2001, pp. 539-541) In 2000, during the plenary session, the judges removed
the “exceptional circumstances” requirement because the new wording would allow the
Trial Chambers to admit more depositions and video-conference testimony in lieu of
witness testimony. (Wald 2001, pp. 545-546)

In December 1998, the judges incorporated 94ter into the Rules of Evidence and
Procedure. (Wald 2001, pp. 540-542; Fairlie 2003, pp. 64-66) 94ter permitted affidavits
in lieu of witness testimony. (Wald 2001, pp. 540-542; Fairlie 2003, pp. 64-66) Although
the judges’ intent was to expedite the trial process via this new rule, applying 94ter

became extremely difficult because of the procedural restrictions. (Wald 2001, pp. 540-

 

” Under ICTY’s statute Article 15, the judges have the power to draft the Rules of Evidence and
Procedure.

47

542; Fairlie 2003, pp. 64-66) After one failed interlocutory appeal, the trial judges deleted
this rule in December 2000. (Wald 2001, pp. 540-542; Fairlie 2003, pp. 70-72)

Rule 92bis provides a vehicle for either the prosecution or the defense to establish
facts either via written statements or transcripts from previous ICTY’s proceedings.
(Wald 2001, pp. 547-548; Fairlie 2003, pp. 72-83; Rutledge 2003/2004, pp. 183-186;
May & Wierda 2002, pp. 344-346) Rule 92bis is applicable only if the parties are using
testimony not directly related to the defendant’s behavior. (Wald 2001, pp. 547-548;
Fairlie 2003, p. 72-83; Rutledge 2003/2004, p. 183-186; May & Wierda 2002, pp. 344-
346) In theory, 92bis seems to expedite the trial process. (Wald 2001, pp. 547-548;
Fairlie 2003, pp. 72-83; Rutledge 2003/2004, pp. 183-186; May & Wierda 2002, pp. 344-
346) However, restrictions do exist to maintain the defendant’s rights. (Wald 2001, pp.
547-548; Fairlie 2003, pp. 72-83; Rutledge 2003/2004, pp. 183-186; May & Wierda
2002, pp. 344-346) For example, the Trial Chamber admits the witness statement on the
condition that the witness can be available for cross-examination. (Wald 2001, pp. 547-
548; Fairlie 2003, pp. 72-83; Rutledge 2003/2004, pp. 183-186; May & Wierda 2002, pp.
344-346)

ICTY’s Rules of Evidence

Proof of death evidence may be admitted through various means. Witness
statements can be admitted through at least four avenues. (ICTY Rule 90; ICTY Rule
89(F); ICTY Rule 92bis; ICTY Rule 94bis) Live witness testimony is usually admitted
via Rule 90 because this rule explains the exact procedure in presenting an oral witness.

(ICTY Rule 90; See Appendix A)

48

The Trial Chamber also admits witness statements through written formats.
(ICTY Rule 89(f); ICTY Rule 92bis; ICTY Rule 94bis) Rule 89 (F) allows the Trial
Chamber to admit evidence in a written format in the interest of justice. (ICTY Rule
89(f); See Appendix A) The Trial Chamber admits confidential and lay witness
testimony under 92bis in lieu of the witness’s oral testimony. (ICTY Rule 92bis; See
Appendix A) However, in this format, the witness testimony becomes an exhibit rather
than typical oral testimony.

The witness’s testimony must discuss events not directly related to the
defendant’s behavior. (ICTY Rule 92bis; See Appendix A) Proof of death evidence
describes a victim’s death. Proof of death evidence does not discuss if the accused
actually killed the victim. The former information must be presented orally because of the
defendant’s due process rights to cross exam as well as the defendant’s right to confront
his accuser. (May & Wierda 2002, pp. 219-223, 284-288) This oral testimony is
necessary because the accuser’s testimony is directly related to the defendant’s actions.
(May & Wierda 2002, pp. 219-288, 284-288)

The Trial Chamber can admit expert testimony via 94bis. (ICTY Rule 94bis; See

Appendix A) The Trial Chamber can admit forensic expert testimony via this avenue.
(ICTY Rule 94bis; Naletilic and Martinovic, Trial Judgment, March 31, 2003 at 1' 476)
This type of testimony can discuss exhumations and autopsy reports to establish a
victim’s death. Natletilic and Martinovic, Trial Judgment, March 31, 2003 at 11 476-
480)

In proof of death evidence, the Trial Chamber can admit the exhibits via 89(c)

because this rule allows the chamber to admit any relevant evidence which deems to have

49

probative value. (Rule 89(c); See Appendix A) Under 89(c), the Trial Chamber usually
admits autopsy reports, forensic reports, and other forms of proof of death exhibits while
the witness authenticates each exhibit during trial proceeding. (Krstic, Trial Transcript,
May 26, 2000; Brdanin, Trial Transcript, Oct. 8, 2002) From 1997-2004, the Trial
Chamber has admitted most of proof of death exhibits via 89(c).
Sammy

The chapter presents an overall view of the ICTY’s struggle to incorporate two
different legal systems via their procedural rules. The ICTY is altering its rules to
incorporate more documentary evidence in order to protect the defendant’s due process
rights. The Trial Chamber has admitted proof of death evidence via Rules 89, 90, 92bis

and 94bis in order to incorporate these new procedures in their trial proceedings.

50

CHAPTER IV: METHODOLOGY
Introduction

This chapter discusses the type of research used in this project. First, this
discussion includes a theoretical background on unobstructive research and its
applicability to case studies in the legal arena. Second, this chapter introduces the study’s
intentions. In this section, the research subject, hypothesis, and research questions are
presented. Finally, this chapter describes research procedures executed in this study,
which includes case selection, data collection, and analytical procedures performed by
the researcher.

Unobstructive Research

Unobstructive measures are “nonreactive methods of gathering data.” (Hagan
1989, p. 174) The subjects are unaware that the investigator is recording them. (Hagan
1989, pp. 144-174; Kellehear 1993, pp. 3-5; Binder & Geis 1983, p. 138; Fitzgerald &
Cox 1994, p. 103; Bouchard 1976, pp. 267-270) The subjects are unaware of the study
because the investigator is removed from the actual events. (Hagan 1989, pp. 144-174;
Kellehear 1993, pp. 3-5) This manner of data collection can often produce more accurate
results because the subject’s reaction to the study will not threaten the findings’ validity.
(Hagan 1989, pp. 174-175; Kellehear 1993, pp. 3-5)

Archival data is an example of unobtrusive research. (Hagan 1989, pp. 144-174;
Kellehear 1993, pp. 3-5; Binder & Geis 1983, p. 138; Fitzgerald & Cox 1994, p. 103;
Bouchard 1976, pp. 267-270; Dane 1990, pp. 168-169) Researching existing public
records and documents can provide “rich sources” of information. (Jones 1996, p. 103)

In the criminal justice community, national organizations encourage the use of previously

51

recorded data. (Hagan 1989, pp. 177-178) For example, the National Advisory
Committee Criminal Justice Standards and Goals (“NACCJSG”) asserted that collecting
new data should be financed only after the investigator justifies that the previously
recorded sources cannot assist the investigator in researching a new criminal justice issue.
(Hagan 1989, p. 177)

Archival research presents numerous benefits to the investigator. First, archival
research is usually easily accessible. (Kellehear 1993, pp. 5-7; Hagan 1989, pp. 199-
2000) Second, archival research is relatively inexpensive. (Kellehear 1993, pp. 5-7;
Hagan 1989, pp. 199-200) Third, archival research permits the researcher to study a
phenomenon over time. (Kellehear 1993, pp. 5-7; Hagan 1989, pp. 199-200) Finally,
archival research promotes reliable and valid studies because independent investigators
can re-evaluate the same data to confirm the original findings. (Kellehear 1993, pp. 5-7;
Hagan 1989, pp. 199—200)

As with any research method, archival research has disadvantages. Investigators
can use archived data only in specific studies because the recorded information must
correlate with the investigator’s research design. (Dane 1990, p. 185) The archived data
may be distorted to either hide information or to create an illusion of something different.
(Jones 1996, p. 116; Kellehear 1993 pp. 5-8) Furthermore, the archived information may
also be incomplete because the original recorder did not document all the information
relative to the study. (Jones 1996, p. 116)

The criminal justice community routinely analyzes groups of legal cases with
similar characteristics to discover, study, or explain a judicial trend. (Bedau & Radelet

1987, pp. 21-90; Liebman, Fagan, & West 2000, pp. 1-126; Drizin & Leo 2004, pp. 894-

52

1007; F itzgerd & Cox 1994, pp. 103-105) Investigators utilize various types of
documents, such as trial transcripts, published judicial decisions, and pre-trial hearing
transcripts, to research and record trends. (Bedau & Radelet 1987, pp. 21-90; Liebman,
Fagan, & West 2000, pp. 1—126; Drizin & Leo 2004, pp. 894-1007)

Bedau and Radelet (1987) investigated the frequency of erroneous convictions in
capital cases from 1900 to 1985. The researchers systematically examined three-hundred
and fifty cases across fifty-three American jurisdictions. (Bedau & Radel 1987, pp. 27-
40) The investigators used various document forms, such as published judicial decisions,
trial transcripts, and news articles. (Bedau & Radel 1987, pp. 27-40) The researchers
documented numerous trends through this data: the number of erroneously convicted
individuals in each jurisdiction, the number of years a wrongfully convicted person was
incarcerated, and the number of individuals erroneously executed. (Bedau & Radel 1987,
pp. 27-40)

The Liebman et al (2000) study began as a research project to calculate the
frequency of relief in capital habeas corpus cases. (Liebman et a1 2000, p. 27) In 1995,
the researchers significantly expanded the study’s scope to attempt to explain the reasons
relief was granted in particular capital cases. (Liebman et al 2000, p. 27) Overall, their
data incorporated around 772 federal-and 4,600 state-overtumed capital cases from 1973
to 1999. (Leibman et al 2000, pp. 27-32) The research teams extracted over 1300
variables from each case in an attempt to explain the motivations for overturning death
sentences. (Liebman et a1 2000, pp. 27-32)

Drizin and Leo (2004) identified and studied one-hundred and twenty-five post-

Miranda false confession cases. (Drizin & Leo 2004, pp. 924-932) The researchers

53

analyzed the consequences of false confessions on the defendant. (Drizin & Leo 2004,
pp. 924-932) This study concentrated upon the likelihood that false confessions lead to
wrongfirl arrest, prosecution, conviction, and incarceration due to policemen, prosecutors,
and jurors’ bias regarding the false confessions. (Drizin & Leo 2004, pp. 924-932)
Unlike the Liebman et a] study, Drizin and Leo incorporated other archival documents in
their analysis, such as police reports, trial transcripts, pre-trial hearing transcripts, and
depositions to track the defendant’s progress through the judicial system. (Drizin & Leo
2004, pp. 924-932)
Research Subiect

This study’s purpose is to analyze the methods the Trial Chambers cited to
establish a victim’s death. According to the ICTY’s jurisprudence, proof of death
evidence encompasses various types of evidence, which includes witness statements,
autopsy reports, photographs, or forensic reports. (Stakic, Trial Judgment, July 31, 2003
at 11 210-211, 263-274, 545-553, 588-601, 632, 653,776—779;_Kv0cka et al., Trial
Judgment, Nov. 2, 2001 at 11 19, 90; Jelisic, Trial Judgment, Dec. 14, 1999 at 1 90;
Kupreskic et al., Trial Judgment, Jan. 14, 2000 at 11 184-198, 229, 242, 277, 395;
Krnojelac, Trial Judgment, March 15, 2002 at 11 49, 337; Naletilic and Martinovic, Trial
Judgment, March 31, 2003 at 11 470-508; Vasiljevr'c, Trial Judgment, Nov. 29, 2002 at 1
52; Krstic, Trial Judgment, Aug. 2, 2001 at 11 4, 71-93, 100-102, 164-171, 222-232, 245-
251, 257-260; Blaskic, Trial Judgment, March 3, 2000 at 11 416-417, 507; Kordic and
Cerkez, Trial Judgment, Feb. 26, 2001 at 11 565-576, 625-638, 644-649, 665, 670-672,
722-729, 739, 744-746; Brdanin, Trial Judgment, Sept. 1, 2004 11 397-465; Annex C)

This type of evidence is considered crime-based evidence because this information

54

relates to the actual crime rather than the perpetrator’s participation in the crime. (Fairlie
2003, pp. 61-66)

Since January 2001, the ICTY’s current judicial trend is to shorten trial lengths by
altering the Rules of Procedure and Evidence. (May & Wierda 2002, pp. 343-346; Fairlie
2003, pp. 61-66) Judges have amended the Rules of Procedure and Evidence to alleviate
procedural restraints in admitting crime-based evidence. (May & Wierda 2002, pp. 343-
346; Fairlie 2003, pp. 61-66) The researcher is attempting to determine if the amended
Rules of Procedure and Evidence actually affect the methods the Trial Chambers cite to
establish a victim’s death. By documenting the frequency of the Trial Chambers’
citations, the researcher can attempt to determine if procedural rule changes actually
affect the methods the Trial Chambers used to establish a victim’s death.

Hypgthesis '

Between 1997 and 2004, the number of Trial Chambers’ citations to forensic
evidence in establishing a victim’s death has decreased in relation to the total number of
citations. In 2001, the judges in the Trial Chambers amended the ICTY’s Rules of
Procedure and Evidence to incorporate Rule 92bis, which provided a vehicle for the Trial
Chambers to establish facts either via written statements or transcripts from previous
ICTY’s proceedings to shorten the trial process. This decrease in the number of forensic
evidence citations could be a result of Rule 92bis, which allowed the Trial Chambers to
admit confidential and lay witness testimony via written statements or transcripts from

previous proceeding to establish a victim’s death.

55

Research Questions

This investigator explored this hypothesis via two main research questions. The
researcher analyzed the changes in the number of Trial Chambers’ witness citations
statements prior to and after 2001. The witness statement category was further divided
into three sub-categories: confidential witnesses, expert witnesses, and lay witness
citations. The researcher analyzed the fluctuations in frequency of Trial Chambers’
citations prior to and after 2001 in each of these sub-categories. These four categories
were formulated into null hypotheses for statistical analysis.
The researcher also investigated the fluctuations in frequency of Trial Chambers’
exhibit citations prior to and after 2001. The exhibit statement category was further
divided into three sub-categories: confidential exhibits, forensic exhibits, and non-
forensic exhibits. Moreover, in order to analyze the crux of the main hypothesis, the
researcher compared the fluctuations in the number of confidential Rule 92bis statements
and Rule 92bis statements in pre-and post-Rule 92bis judgments. Each of these five
categories was formulated into null hypotheses. Overall, nine null hypotheses were
drafted for statistical analysis.
Protection of the Participarltg

Prior to conducting this study, the researcher acquired approval from University
Committee on Research Involving Human Subjects (“UCRIHS”) at Michigan State
University’s Office of Research, Ethics, and Standards. An anticipated risk did not exist

because this study used data from public judicial records from the ICTY’s Court and

Record Management Section (“CMSS”) rather than extracting data from human subjects.

56

Research Procedures

In this study, the researcher analyzed thirteen adjudicated ICTY cases from 1997
to 2004. Adjudicated cases were studied because the data regarding these cases were
public information. The researcher applied a careful screening process to determine each
case’s eligibility for this study. After inspecting all of the ICTY cases via the Tribunal’s
website, the researcher compiled a list of adjudicated cases. The researcher read the
indictments for each of these cases to determine if the OTP charged the defendant(s) on a
honricide theory, which included willful killing, murder (Article 3 and Article 5),
extermination, persecution, or genocide. Only the cases which the defendant(s) were
charged with a homicide theory were retained. After compiling a list of adjudicated
homicide cases, the exact homicide theory was recorded.

After this initial selection, the researcher read every case from the compiled list.
If the defendant(s) pled guilty to a homicide charge, the case was discarded because the
judgments did not cite either the witness testimony or the exhibits regarding proof of
death. Of the remaining homicide cases, the defendant’s guilt or innocence was recorded.

The researcher divided the compiled adjudicated homicide case list into two
sections: “cases that utilize forensic science” and “cases that did not utilize forensic
science.” The researcher accumulated a list of exhibits and witness statements that the
Trial Chamber cited in the trial judgments to establish death from these sections. The
researcher presented these lists to the ICTY’s CMMS.

The researcher returned to the ICTY in December 2004. The CMSS granted the
researcher access to their intranet and a few interoffice databases under supervision. The

researcher obtained exact date which the witness testified or the exact date the exhibit

57

was submitted to the court through these databases. The public exhibits’ substantive titles
were also obtained in this process.

After returning from the ICTY, the researcher searched the ICTY’s trial
transcripts via the Internet to determine by which Rule of Evidence the witness or exhibit
evidence was submitted. The researcher extracted four variables for each piece of
evidence: the date of the admittance, the case name, the evidence rule, and evidence title.

After inputting this information into the database, the researcher divided the
witness evidence into three categories: confidential witnesses, expert witnesses, and lay
witnesses. The expert witnesses were then divided into seven categories: investigators,
forensic anthropologists, forensic archeologists, forensic pathologist, military experts,
demographic experts, and lawyers. The researcher counted and recorded the number of
times the Trial Chambers cited each category.

The researcher also divided the exhibits into three categories: confidential
exhibits, forensic exhibits, non-forensic exhibits. The forensic exhibits were then divided
into seven categories: forensic reports, death certificates, records of bodies, ICTY’s
investigator reports, photographs related to bodies, video related to bodies, and 94bis
statements. Furthermore, the non-forensic exhibits were then divided into two categories:
92bis statements and miscellaneous exhibits. The researcher counted and recorded the
number of times the Trial Chambers cited each category.

Analys's

Two types of mathematical analysis were used in this study. In regards to the

relative frequency analysis, the researcher calculated the percentage of citations for the

six types of evidence, confidential witnesses, expert witnesses, lay witnesses, confidential

58

exhibits, forensic exhibits, and non-forensic exhibits, in relation to the total number of
citations for each year. (Bennett, Briggs & Triola 2001, pp. 97-150) These percentages
were compared to determine the exact increase or decrease of the Trial Chambers’
citations by year.

The researcher also calculated the percentage of citations in three distinct time
periods for each type of evidence. These percentages were compared to determine the
exact increase or decrease of the Trial Chambers’ citations within three distinct time
periods: 1997-2000, 2001, and 2002-2004. (Bennett, Briggs & Triola 2001, pp. 97-150)
These three time categories represented pre-Rule 92bis, a transition year, and post-Rule
92bis opinions. These classifications were critical because it re-evaluates the data in
relation to the ICTY’s Rules of Procedure and Evidence amendment. This perspective
determined if a fluctuation occurred in the Trial Chambers’ citations before and after
Rule 92bis.

The researcher also performed nonparametric statistical analysis because the
small sample size. The Mann-Whitney U test was performed because this statistical test
compares two independent samples. (Bachman & Paternoster 1997, pp. 535-540) In this
study, the Mann-Whitney U test was applicable because the researcher compared the
number of Trial Chambers’ citations before and after the amendment to the ICTY’s Rules
of Procedure and Evidence to incorporate Rule 92bis.

Summm

The criminal justice community has used archival data to study trends within a

court system. These relatively inexpensive studies promote reliable and valid studies

because independent investigators can re-evaluate the same data to confirm the original

59

findings. In this study, the researcher studied judicial opinions and trial transcripts to
analyze the methods the ICTY’s Trial Chambers cited to establish a victim’s death in
thirteen homicide cases between 1997 and 2004. Specifically, relative frequency analysis
and Mann-Whitney U test were performed to determine if a shift in frequency regarding

Trial Chambers’ citations to six types of evidence occurred after 2001.

60

CHAPTER V: RESULTS
Introduction

This study analyzes thirteen judgments between 1997 and 2004, an eight-year
time span. The Trial Chambers tried twenty-seven different defendants in these thirteen
judgments. (See Table 5.1) These judgments depict event in nine different geographic
regions across the former Yugoslavia: Bruko, Celebici Camp, Foca, Lasva Valley,
Mostar, Omarska and Kerterm Camps, Prijedor, Srebrenica, and Visegard. (See Table
5.1)

In this study, the Trial Chambers tried a significant number of defendants
regarding events in the Lasva Valley because three of the thirteen judgments (22%)
involved this area. The Trial Chambers also tried a significant number of defendants
regarding events in the Prijedor area because three of the thirteen cases (22%) involved

this area. The Trial Chambers tried one case each (8%) in all the other regions.

 

 

 

 

 

 

 

 

 

 

Bruko Celebici Foca Lasva Mostar Omarska Prijedor Srebrencia Visegard
Camp Valley and
Kerterm
Camp
Jelisic Delalic Kmojelac Kupreski Naletilic Kvocka Tadic Krstic Vasiflevic
Blaskic Stakic
Kordic Brdanin

 

 

 

 

 

Table 5.1- Defendants Separated by Geographical Area

The researcher originally collected a list of three-hundred seventy-five witness
statements and two-hundred forty-six exhibits that the Trial Chambers cited to establish a
victim’s death. These citations were collected from ICTY judicial opinions from three
different Trial Chambers. However, the researcher had to discard five witness statements
(1%) because the researcher could not verify if the Trial Chambers admitted the

testimony viva voce. Similarly, the researcher disregarded twenty-two exhibits (8%)

61

because the researcher was able to verify if the Trial Chambers admitted the exhibits via
Rule 89(c), Rule 92bis, or Rule 94bis. The disregarded exhibits should not affect the
results because the researcher only disregarded seven exhibits (2%) between 2002 and
2004.

This study analyzed five hundred nine-four pieces of evidence, which included
either witness statements or exhibits. (See Table 5.2) Data included three hundred
seventy witness statements, which was roughly sixty-three percent of the study. (See
Table 5.2) The researcher analyzed three different types of witness statements:
confidential witnesses, expert witnesses, and lay witnesses. (See Table 5.2) Data also
included two hundred twenty-four exhibits. Thirty-seven percent of the study discussed
three distinct types of exhibits: confidential exhibits, forensic exhibits, and non-forensic

exhibits. (See Table 5.2)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case Year Confidential Expert Lay Confidential Forensic Non- Total
Name Witnesses Witnesses Witnesses Exhibits Exhibits forensic
Exhibits
Tadic 1997 0 0 6 0 0 0 6
Delalic 1998 7 0 19 0 l 0 27
Jelisic 1999 0 3 1 O 2 1 7
Kupreski 2000 28 9 3 4 38 2 84
Blaskic 2000 I 1 l 5 l4 0 0 3 43
Kordic 2001 20 7 10 12 26 6 81
Krstic 2001 18 14 4 O 17 12 65
Kvocka 2001 13 2 14 0 1 l 3 1
Kmojelac 2002 32 2 8 0 3 4 49
Vasiljevic 2002 l 1 2 5 l 7 5 3|
Stakic 2003 14 1 l3 7 I 1 10 56
Naletilic 2003 7 0 1 O 3 1 12
Brdanin 2004 28 l 27 13 12 21 102
Total 189 56 125 37 121 66 594

 

 

 

 

 

 

 

 

 

Table 5.2- Witness Statements and Exhibits Separated by Category and Year
The researcher analyzed each type of witness statement or exhibit via two

avenues. The researcher plotted the number of witness statements or exhibits across an

62

 

eight-year timeline. This analysis presented a general overview of the number of Trial
Chambers’ citations to a particular category per year.

The researcher also divided each category into three time periods: 1997-2000,
2001, and 2002-2004. These three time categories represented pre-Rule 92bis, a
transition year, and post-Rule 92bis opinions. These classifications were critical because
it re-evaluates the data in relation to the ICTY’s Rules of Procedure and Evidence
amendment. This perspective may determine if a fluctuation occurred in the Trial
Chambers’ citations before and after Rule 92bis. All images in this thesis are presented
in color regarding these two types of analysis.
Aggregated Analysis

The Trial Chambers preferred to cite witness testimony rather than exhibits to
establish a victim’s death. Between 1997 and 2000, sixty-nine percent of the citations
referenced witness testimony while thirty-one percent of the citations mentioned exhibits.
(See Table 5.3; Figure 5.2) In 2001, fifty-seven percent of the citations referenced
witness testimony while forty-three percent of the citations referenced exhibits. (See
Table 5.3; Figure 5.2) Sixty-two percent of the Trial Chambers citations discussed
witness statements while thirty-eight percent of the citations discussed exhibits between
the 2002 and 2004 time period. (See Table 5.3; Figure 5.2) Rule 92bis did not affect the
number of witness citations because only a ten-percent decrease in the number of witness
citations existed between the 1997 and 2000 time period and between the 2002 and 2004

time period. (See Table 5.3; Figure 5.2)

63

1.. ,I,” I

{,1 ,

1
I D
e

’.l .1 I’ll-"1 / '-' ..
"."I’I’XI/ 1'"

8

‘... ‘ r " l ‘
.«:11cvc,+:t—.¢»€W</---w’ - /

A

.2 .I. . '
.-’/,’I//.—'/

Number of Exhibits or Witnesses
b)
O

 

 

20 r
i * ’ l
'f f I
10
l
0
1997 1998 1999 2000 2001 2002 2003 2004
Years
+ Confidential Witnesses —l— Expert Witnesses Lay Witnesses
—><— Confidential Exhibits + Forensic Exhibits —e— Non-Forensic Exhibits

 

Figure 5.1 Witness and Exhibit Timeline

 

  
 

Number of 150 ~
Exhibits or

- :- my;
Witnesses 100 » )1 l . .l.;.’.‘

I 4 .

. gin-.4; . trap. I
fizz/#2::
,Iqrc'; ”41';

 

1997-2000 2001 2002-2004
Years
I Confidential Witnesses I Expert Witnesses [3 Lay Witnesses
UConf'idential Exhibits I Forensic Exhibits I Non-Forensic Exhibits

 

 

Figure 5.2 Aggregated Witnesses and Exhibits in Relation to Rule 92bis

 

 

 

 

 

Time Periods Percentages of Witness Percentages of Exhibits
1 997-2000 69% 3 l 0/0
2001 57% 43%
2002-2004 62% 38%

 

 

 

 

Table 5.3- Percentage of Witness and Exhibits Citations during each Time Period

The Trial Chambers continuously cited exhibit secondary to witness in
establishing a victim’s death. (See Table 5.3; Figure 5.2) During each time period, the
number of exhibit citations ranged from forty-three percent to thirty-one percent of the
total number of citations. (See Table 5.3; Figure 5.2) Since Rule 92bis, the Trial
Chambers weighed exhibits more heavily because the Trial Chambers increased the
number of exhibit citations by twenty-three percent between the 1997 and 2000 time
period and between the 2002 and 2004 time period. (See Table 5.3; Figure 5.2)
Witness Statements

The witness statement collection comprised confidential, expert, and lay witness
statements. The researcher compiled a list of one-hundred eighty-nine confidential
witnesses. This collection also included fifty-six expert witness statements and one-

hundred twenty-five lay witness statements. (See Table 5.2)

 

 

 

 

 

 

Time Periods Confidential Expert Witnesses Lay Witnesses Total
Witnesses

1 997-2000 27% 1 6% 26% 69%

2001 28% 13% 16% 57%

2002-2004 37% 3% 22% 62%

 

 

 

 

 

Table 5.4-Percentage of Confidential, Expert, and Lay Witnesses Citations during each Time Period

The percentage of citations regarding the three different types of witness
testimony varied during each time period. Within the witness category, confidential
witness testimony was the most popular form of evidence because the Trial Chambers
cited confidential witnesses the most frequently during all three time periods. (See Table

5.3; Table 5.4; Figure 5.2) Between 1997 and 2000, twenty-seven percent of the total

65

number of exhibits referenced confidential witnesses. (See Table 5.3; Table 5.4; Figure
5.2) In 2001, twenty-eight percent of the total number of exhibits discussed confidential
witness statements. (See Table 5.3; Table 5.4; Figure 5.2) Between 2002 and 2004, thirty-
seven percent of the total number of Trial Chambers’ citations mentioned confidential
witnesses. (See Table 5.3; Table 5.4; Figure 5.2) The Trial Chambers increased the
confidential witness citations by thirty-seven percent in pre-and post-Rule 92bis
judgments. (See Table 5.3; Table 5.4; Figure 5.2)

The Trial Chambers’ citations to expert witnesses constantly decreased thorough
the three time periods. Sixteen percent of the total number of Trial Chambers’ citations
referenced expert witnesses between the 1997 and 2000 time period. (See Table 5.3;
Table 5.4; Figure 5.2) In 2001, thirteen percent of the total number of citations discussed
expert witnesses. (See Table 5.3; Table 5.4; Figure 5.2) Between the 2002 and 2004 time
period, only three percent of the total number of citations mentioned expert witnesses.
(See Table 5.3; Table 5.4; Figure 5.2)

Rule 92bis has affected the frequency of expert witness citations. Between 2002
and 2004, expert witness citations was the least cited type of evidence. (See Table 5.3;
Table 5.4; Table 5.11; Figure 5.2) The number of expert witness citations represented
only three percent of the total number of citations. (See Table 5.3; Table 5.4; Table 5.1 1;
Figure 5.2) This status was concerning because expert witness citations ranked fourth in
pre-Rule 92bis judgments. (See Table 5.3; Table 5.4; Table 5.11; Figure 5.2) This drop
in status was a result of an eighty-one percent decrease in the number of expert witness
citations between pre-and post-Rule 92bis judgments. (See Table 5.3; Table 5.4; Figure

5.2)

66

Lay witness testimony was the second most popular type of evidence cited by the
Trial Chambers in two time periods. (See Table 5.3; Table 5.4; Figure 5.2) Between
1997 and 2000, twenty-six percent of the total number of Trial Chambers’ citations
referenced lay witness testimony. (See Table 5.3; Table 5.4; Figure 5.2) In 2001, sixteen
percent of the total number of citations referenced lay witnesses. (See Table 5.3; Table
5.4; Figure 5.2) Between 2002 and 2004, twenty-two percent of the total number of
citations mentioned lay witnesses. (See Table 5.3; Table 5.4; Figure 5.2) Rule 92bis did
not affect the number of lay witness citations because a fifteen-percent decrease existed
between the 1997 and 2000 time period and between the 2002 and 2004 time period. (See
Table 5.3; Table 5.4; Figure 5.2)

Confidential Witnesses

The researcher could not examine the confidential witness statements due to
ICTY’s confidentiality agreements. The researcher could only confirm that the Trial
Chambers cited a particular number of confidential witnesses per case.

Throughout the eight years, the Trial Chambers cited between zero to fifty-one
confidential witnesses to establish a victim’s death per year. (See Table 5.2; Figure 5.3)
In 1997 and 1999, the Trial Chambers cited zero confidential witnesses. (See Table 5.2;
Figure 5.3) In contrast, the Trial Chambers’ citations to confidential witnesses peaked
when the Trial Chambers cited fifty-one confidential witnesses in 2001. (See Table 5.2;
Figure 5.3) Between 2002 and 2003, the frequency of the Trial Chambers’ citations to
confidential witnesses decreased with only forty-three and twenty-one citations,
respectively. (See Table 5.2; Figure 5.3) In 2004, the frequency of the Trial Chambers’

citations to confidential witnesses rebounded slightly. (See Table 5.2; Figure 5.3)

67

338

Number of Witnesses
N u
e :

 

1997 I998 1999 2000 2001 2002 2003 2004

Years

 

1+ Confidental Witnesses

 

Figure 5.3 Confidential Witness Timeline

 

 

   
  

 

Number of 60
Witnesses 40

20

0
1997-2000 2001 2002-2004

Years

 

I Confidential Witnesses]

 

Figure 5.4 Confidential Witnesses in Relation to Rule 92bis

The data presented an alternative view in relation to Rule 92bis. The frequency of
the Trial Chambers’ citations to confidential witnesses continuously increased throughout

these three time periods. (See Table 5.2; Table 5.5; Figure 5.4) Between 1997 and 2000,

68

the Trial Chambers cited forty-six confidential witnesses. (See Table 5.2; Figure 5.4)
These citations represented twenty-four percent of the total number of confidential
witness statements. (See Table 5.5; Figure 5.4) In 2001, the frequency of Trial
Chambers’ citations increased to fifty-one citations. (See Table 5.2; Figure 5.4) These
fifty-one citations represented twenty-seven percent of the total number of confidential
witness citations. (See Table 5.5; Figure 5.4) A dramatic increase occurred when the Trial
Chambers cited ninety-two confidential witnesses between 2002 and 2004, which
represented forty-nine percent of the entire confidential witness citations. (See Table 5.2;
Table 5.5; Figure 5.4) The number of confidential witness citations increased one-

hundred and four percent between pre-and post-Rule 92bis judgments. (See Table 5.5;

 

 

 

 

 

Figure 5.4)
Time Periods Percentagg of Confidential Witnesses
1997-2000 24%
2001 27%
2002-2004 49%

 

 

 

Table 5.5- Percentage of the Total Number of Confidential Witness Citations during each Time Period

Expert Witnesses

The researcher was able to examine the expert witness statements via the ICTY
transcripts on the World Wide Web. Throughout the eight years, the Trial Chambers cited
between zero and twenty-four expert witnesses to establish a victim’s death per year. (See
Table 5.2; Figure 5.5) In 1999, the Trial Chambers began citing expert witnesses in the
Jelisic judgment. (See Table 5.2; Figure 5.5)

In 2000 and 2001, the Trial Chambers significantly increased the frequency of
expert witness citations. (See Table 5.2; Figure 5.5) In 2000, the Trial Chambers cited
twenty-four experts. (See Table 5.2; Figure 5.5) Similarly, in 2001, the Trial Chambers

cited twenty-three experts. (See Table 5.2; Figure 5.5)

69

 

be
6

 

N N
O M

 

 

 

-
6

Number of Witnesses
5.“
\
/

/ \
/ \—«

A
V I V I I I r I I

1997 1998 1999 2000 2001 2002 2003 2004

Years

 

ill

 

 

 

6

 

 

 

+ Expert Witness

 

Figure 5.5 Expert Witness Timeline

The Trial Chambers did not maintain this high frequency of expert witness
citations for an extended period of time. (See Table 5.2; Figure 5.5) In 2002, a
significant decrease occurred when the Trial Chambers cited only four different expert
witnesses. (See Table 5.2; Figure 5.5) The Trial Chambers’ citations continued to
decrease when the Trial Chambers cited only one expert witness per year between 2003
and 2004. (See Table 5.2; Figure 5.5)

In contrast to confidential witnesses, the Trial Chambers’ citations to expert
witnesses dramatically decreased throughout the three time periods. (See Table 5.2;
Figure 5.6) Between 1997 and 2000, the Trial Chambers cited twenty-seven expert
witnesses to establish a victim’s death. (See Table 5.2; Figure 5.6) These twenty-seven
citations represented forty-eight percent of the total number of expert witness citations.
(See Table 5.6; Figure 5.6) In 2001, the Trial Chambers’ citations to expert witnesses

slightly decreased because the Trial Chambers cited only twenty-four expert witnesses.

70

(See Table 5.2; Figure 5.6) The Trial Chambers’ citations exhibited forty-one percent of
the total number of expert witness citations in 2001. (See Table 5.6; Figure 5.6) The
frequency of Trial Chambers’ citations to expert witnesses dramatically decreased
because the Trial Chambers cited only six expert witnesses throughout five judgments
between 2002 and 2004. (See Table 5.2; Figure 5.6) These six citations represented

eleven percent of the total number of expert witness citations. (See Table 5.6; Figure 5.6)

 

 

0
1997-2000 2001 2002-2004

Years

I Expert Witnesses

Figure 5.6 Expert Witnesses in Relation to Rule 92bis

 

The Trial Chambers consistently cited fewer expert witness citations in pre-and

post-Rule 92bis judgments. (See Table 5.6; Figure 5.6) The Trial Chambers’ referenced
eighty-nine percent of the total expert witness citations between the 1997 and 2000 time

period and 2001. (See Table 5.6; Figure 5.6) The Trial Chambers citations to expert

71

witnesses decreased seventy-seven percent between pre-and post-Rule 92bis judgments.

(See Table 5.6; Figure 5.6)

The researcher further categorized the expert witnesses into seven groups:

investigators, forensic anthropologists, forensic archeologists, forensic pathologists,

military personnel, demographic experts, and lawyers. (See Table 5.7)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case Year Investigator F. F. F. M D L Total
Name Anthropologists Archeologists Pathologists

Tadic 1997 0 0 0 0 0 0 0 0
Delalic 1998 0 0 0 0 0 0 O 0
Jelisic 1999 0 0 1 l l 0 O 3
Kupreski 2000 l 0 0 0 7 0 1 9
Blaskic 2000 0 0 0 0 l4 0 l 15
Kordic 2001 0 0 0 0 7 0 O 7
Krstic 2001 2 2 1 l 7 l 0 14
Kvocka 2001 1 O O 0 1 0 0 2
Kmojelac 2002 1 0 0 0 O O 1 2
Vasiljevic 2002 0 0 l 0 0 0 l 2
Stakic 2003 l 0 0 0 0 0 0 1
Naletilic 2003 0 0 0 0 0 0 0 0
Brdanin 2004 l O 0 0 0 0 0 1
Total 7 2 3 2 37 1 4 56

 

 

 

 

 

 

 

 

 

 

D= Demographic Expert; M=Mi|itary Personnel; L=Lawyer
Table 5.7- Expert Witness Statement Separated by Category

 

  

 

   

= _. I = _ _
999 2000 2001 2002 2003 2004

Years

1997 I998 l

 

I Investigator I F. Anthropologist El F. Archeologist
Cl F. Pathologist I Military ll Demographics
I Lawyer

 

 

 

Figure 5.7 Aggregated Expert Witnesses

 

Table of Expert Witnesses Cited each Year

Similar to the previous discussion, the Trial Chambers cited a significant number
of expert witnesses in 2000 and 2001. (See Table 5.7; Figure 5.7) Surprisingly, the Trial
Chambers relied on military personnel the most frequently in establishing a victim’s
death. (See Table 5.7; Figure 5.7) The Trial Chambers referenced thirty-seven citations
regarding military personnel throughout the thirteen judgments. (See Table 5.7; Figure
5.7)

The frequency of Trial Chambers’ citations to military personnel is quite erratic.

(See Table 5.7; Figure 5.7) The Trial Chambers cited only military personnel between

73

1999 and 2001. (See Table 5.7; Figure 5.7) The Trial Chambers referenced one military
personnel in 1999. (See Table 5.8; Figure 5.7) This citation to military personnel
represented thirty-three percent of the total number of cited experts in 1999. (See Table
5.8: Figure 5.7)

The frequency of citations to military personnel increased when the Trial
Chambers cited twenty-one military personnel in 2000. (See Table 5.7; Figure 5.7) These
citations comprised eighty-eight percent of the total number of experts in 2000. (See
Table 5.8; Figure 5.7) In 2001, citations to military experts represented fifteen citations.
(See Table 5.7; Figure 5.7) These fifteen citations represented sixty-eight percent of the
total number of cited experts in 2001. (See Table 5.8; Figure 5.7) The Trial Chambers
abruptly stopped citing military personal in 2002. (See Table 5.7; Figure 5.7) This

sudden interruption was surprising because four of the six defendants tried after 2001

participated in military action. (Krnojelac, Trial Judgment, March 15, 2002 at 11 1-4,
Vasiljevic, Trial Judgment, Nov. 29, 2002 at 11 1-4; Stakic, Trial Judgment, July 31,
2003 at 11 1-9; Naletilic and Martinovic, Trial Judgment, March 31, 2003 at 11 2-3;

Brdanin, Trial Judgment, Sept. 1, 2004 at 11 1-13)

After 2002, the Trial Chambers shifted their attention to lawyers’ and
investigators’ testimony to establish a victim’s death. (See Table 5.7; Figure 5.7) In
2002, the Trial Chambers cited two different lawyers in the Krnajelac and Vasiljevic
judgments. (See Table 5.7; Figure 5.7) The citations to lawyers represented fifty percent
of the total number of experts in 2002. (See Table 5.8; Figure 5.7)

In 2003, the Trial Chambers continuously narrowed their focus because the Trial

Chambers cited only investigators. (See Table 5.7; Figure 5.7) Between 2003 and 2004,

74

the Trial Chambers continued this trend because the Trial Chambers cited only
investigators to establish a victim’s death. (See Table 5.7; Table 5.8; Figure 5.7)

Surprisingly, the Trial Chambers sporadically cited forensic experts to establish a
victim’s death throughout these eight years. The Trial Chambers cited forensic experts in
1999, 2001, and 2002. (See Table 5.7; Figure 5.7) The Trial Chambers cited only one
archeologist in 1999 and 2002. (See Table 5.7; Figure 5.7) In 2001, the frequency of Trial
Chambers citations to forensic experts peaked when the Trial Chambers cited one
pathologist, one archeologist, and two anthropologists. (See Table 5.7; Figure 5.7)

The percentages of citations to forensic specialists shifted each year. In 1999, the
citations to forensic specialists represented sixty-six percent of the total number of expert
witnesses. (See Table 5.8; Figure 5.7) The citations to forensic specialists comprised only
twelve percent of the total number of experts in 2001. (See Table 5.8; Figure 5.7) In
2002, the percentages of citations to forensic specialists increased to twenty-five percent
of the total number of expert witnesses. (See Table 5.8; Figure 5.7)

The Trial Chambers integrated demographic experts throughout each of the
judgments. However, the Trial Chambers did not cite demographic experts very often to
establish a victim’s death. (See Table 5.7; Figure 5.7) In this study, the Trial Chambers
cited only one demographic expert in the Krstic case. (See Table 5.7; Figure 5.7) This
citation represented four percent of the total number of expert witnesses for 2001. (See

Table 5.8; Figure 5.7)

75

 

 

 

 

 

 

1997-2000 2001 2002-2004

 

Years
I! Investigator I F. Anthropologist E] F. Archeologist
D F. Pathologist I Military in Demographics
I Lawyer

 

 

 

Figure 5.8 Aggregated Expert Witness in Relation to Rule 92bis

 

In relation to Rule 92bis, this data presented an alternative picture. Between 1997

and 2000, the Trial Chambers regularly cited military personnel to establish a victim’s
death. The Trial Chambers cited twenty-two citations referencing military experts
throughout these five cases. (See Table 5.7; Figure 5.8) These citations represented eight-
one percent of the total number of expert witness citations between the 1997 and 2000.
(See Table 5.7; Table 5.9; Figure 5.8)

Between 1997 and 2000, the Trial Chambers relied on other types of experts to
establish a victim’s death. The Trial Chambers cited four other experts during these three

years: a forensic pathologist, a forensic archeologist, an investigator and two lawyers.

76

(See Table 5.7; Figure 5.8) The one citation to a forensic pathologist, forensic
archeologist, and investigator represented twelve percent of the total number of expert
citations between 1997 and 2000. (See Table 5.9; Figure 5.8) The two citations to
lawyers represented seven percent of the total number of expert citations between the
1997 and 2000. (See Table 5.9; Figure 5.8)

In 2001, the Trial Chambers still heavily relied on military personnel to establish
a victim’s death. (See Table 5.7; Table 5.9; Figure 5.8) The Trial Chambers cited fifteen
citations referencing military personal. (See Table 5.7; Figure 5.8) These citations
represented sixty-five percent of the total number of citations to expert witnesses. (See
Table 5.9; Figure 5.8)

However, in 2001, the Trial Chambers cited other types of experts more
frequently. (See Table 5.7; Figure 5.8) The Trial Chambers cited three forensic experts:
two anthropologists and one archeologist. (See Table 5.3; Figure 5.8) These citations to
forensic specialists represented seventeen percent of the total number of expert witness
citations during in 2001. (See Table 5.9; Figure 5.8)

The Trial Chambers also cited a demographic expert in the Krstic judgment. (See
Table 5.7; Figure 5.8) This citation represented four percent of the total number of expert
witnesses’ citations in 2001. (See Table 5.9; Figure 5.8) Furthermore, the Trial
Chambers’ increased the frequency of investigator citations to three citations throughout
the Krstic and Kvocka judgments. (See Table 5.7; Figure 5.8) These citations represented
thirteen percent of the total number of expert witnesses’ citations in 2001. (See Table 5.9;

Figure 5.8)

77

Between 2002 and 2004, the Trial Chambers altered its focus to other types of
experts to establish a victim’s death. Between 1997 and 2000, the Trial Chambers relied
on an array of experts, which included investigators, forensic specialists, military
personnel, demographic experts, and lawyers. (See Table 5.9; Figure 5.8) Since 2001,
Trial Chambers stopped citing four types of experts: military personnel, forensic
anthropologists, forensic pathologists, and demographic experts. (See Table 5.9; Figure
5.8) This decrease in citations represented a one-hundred percent decrease in citations
regarding these types of experts in post-Rule 92bis judgments. (See Table 5.9; Figure 5.8)

Trial Chambers cited only three types of experts, lawyers, forensic archeologists,
and investigators, in post-Rule 92bis judgments. (See Table 5.9; Figure 5.8) The
frequency of Trial Chambers’ citations to investigators increased throughout the three
time periods. (See Table 5.7; Table 5.9; Figure 5.8) Between 1997 and 2000, the expert
witness citations to investigators represented four percent of the total number of expert
witness citations. (See Table 5.9; Figure 5.8) The investigator citations represented fifty
percent of the total number of expert witness citations in post-Rule 92bis judgments. (See
Table 5.7; Table 5.9; Figure 5.8) The frequency of citations to investigators increased
one-thousand fifty-percent between the 1997 and 2000 time period and between the 2002
and 2004 time period. (See Table 5.7; Table 5.9; Figure 5.8)

The Trial Chambers also cited two lawyers in post-Rule 92bis judgments. (See
Table 5.7; Figure 5.6) The citations to lawyers represented thirty-three percent of the
total number of expert witness citations between 2002 and 2004. (See Table 5.9; Figure
5.8) The frequency of citations to lawyers increased three-hundred seventy-one percent

between pre-and post-Rule 92bis judgments. (See Table 5.9; Figure 5.8)

78

The single citation to a forensic archeologist comprised seventeen percent of the
total number of expert witness citations between the 2002 and 2004. (See Table 5.7;
Table 5.9; Figure 5.8) The frequency of citations to forensic archeologist increased three-
hundred percent between pre-and post-Rule 92bis judgments. (See Table 5.7; Table 5.9;
Figure 5.8)

The variation in percentages regarding lawyers and forensic archeologists were
misrepresentations. The Trial Chambers referenced the same number of lawyers and
forensic archeologists between the 1997 and 2000 time period and the 2002 and 2004
time period. (See Table 5.7) The increase in percentage resulted from the Trial Chambers
decreasing the citations to other types of forensic experts. (See Table 5.7; Table 5.8;
Table 5.9)

Since Rule 92bis, the Trial Chambers increased the citations only to ICTY’s
investigators. (See Table 5.7; Table 5.9; Figure 5.8) Between 1997 and 2000, the Trial
Chambers only cited one investigator. (See Table 5.7; Table 5.9; Figure 5.8) The Trial
Chambers cited three investigators between 2002 and 2004. (See Table 5.7; Table 5.9;
Figure 5.8) Moreover, in 2002 and 2003, the expert witness citations only referenced
ICTY investigators. (See Table 5.7; Table 5 .9; Figure 5.8)

The Trial Chambers may be only interested in ICTY investigators as expert
witness. This implication is not impracticable. ICTY investigators save the Tribunal
time and money. These investigators are easy to summon because they usually live in
The Hague. Moreover, ICTY investigators expedite the trial process because they are

familiar with the Tribunal’s customs and policies.

79

Rule 92bis has also affected forensic specialists in an extremely interesting
manner. Between 1997 and 2000, forensic specialists’ citations comprised of eight
percent of the total number of expert witnesses. (See Table 5.9; Figure 5.8) In 2001, the
frequency of citations of forensic specialists rose to encompass seventeen percent of the
total number of expert witnesses. (See Table 5.9; Figure 5.8) The number of citations to
forensic specialists continued to represent seventeen percent of the total number of expert
witnesses between 2002 and 2004. (See Table 5.9; Figure 5.8)

The distribution of three sub-specialists changed through each time period.
Between 1997 and 2000, the Trial Chambers cited forensic archeologists and forensic
pathologists. (See Table 5.9; Figure 5.8) In 2001, the Trial Chambers cited forensic
anthropologists, forensic archeologists, and forensic pathologists, which incorporates all
three sub-specialties. (See Table 5.9; Figure 5.8) The Trial Chambers cited only forensic
archeologists between 2002 and 2004. (See Table 5.9; Figure 5.8)

In post-Rule 92bis judgments, the Trial Chambers may be solely interested in
archeologists regarding forensic specialists. Similar to ICTY investigators, archeologists
save the Tribunal time and money because of their dual capacity. First and foremost,
archeologists discuss archeological procedures. Archeologist can also discuss trauma on
human skeletons. The Tribunal is obtaining two different sets of information via one

single individual.

80

Lay Witnesses

30 1,..2.-_--.--- _-.-__-. -._..__ _- ___ ._ - _ _.__ _- __ _. .-____-. __ _._._._________
1

 

\
/
\

 

 

>
\
\
/
\

 

Number ofWrtnesses
52
/

 

(A

 

 

 

G
.1
.1
d
d

’\
/
<\

1997 1998 1999 2000 2001 2002 2003 2004

Years

 

 

 

-+— Lay witness

 

Figure 5.9 Lay Witness Timeline

Similar to confidential witnesses, the lay witness timeline is erratic. (See Table
5.2; Figure 5.3; Figure 5.9) Between 1997 and 1998, the frequency of the Trial
Chambers’ citations to lay witnesses increased from seven to nineteen citations. (See
Table 5.2; Figure 5.9) In 1999, the frequency of the Trial Chambers’ citations
dramatically deceased to only one citation. (See Table 5.2; Figure 5.9) Between 2000
and 2001, the frequency of Trial Chambers’ citations to lay witnesses continued to rise to
twenty-eight citations. (See Table 5.2; Figure 5.9) Similarly, in 2003, the Trial
Chambers’ citations fell to thirteen citations. (See Table 5.2; Figure 5.9) The frequency
of Trial Chambers citations continued to rise with twenty-seven citations in 2004. (See

Table 5.2; Figure 5.9)

81

Number of
Witnesses

 

1 997-2000 200 I 2002-2004

Years

I Lay Witnesses

Figure 5.10 Lay Witnesses in Relation to Rule 92bis

Contrary to the confidential and expert witnesses data, the frequency of Trial
Chambers’ citations did not continuously increase or decrease with respect to Rule 92bis.
(See Table 5.2; Figure 5.4; Figure 5.6; Figure 5.10) Between 1997 and 2000, the Trial
Chambers cited forty-three lay witnesses to establish a victim’s death. (See Table 5.2;
Figure 5.10) These forty-three citations represented thirty-five percent of the total number
of lay witness citations during this time-period. (See Table 5.10; Figure 5.10) The
frequency of citations fell when the Trial Chambers cited only twenty-eight lay witnesses
in 2001. (See Table 5.2; Figure 5.10) These citations comprised twenty-two percent of
the total number of lay witness citations. (See Table 5.10; Figure 5.10) Between 2002
and 2004, the frequency of Trial Chambers’ citations increased when the Trial Chambers
cited fifty-four lay witnesses. (See Table 5.2; Figure 5.10) These citations represented
forty-three percent of the total number of lay witness citations. (See Table 5.10; Figure
5.10) The Trial Chambers increased the lay witness citations by twenty-three percent

between pre-and post-Rule 92bis judgments. (See Table 5.10; Figure 5.10)

82

 

Time Periods Percentaggrf Lay Witnesses

 

 

 

 

 

1997-2000 35%
200 l 22%
2002-2004 43%

 

Table 5.10-Percentage of Lay Witness Citations during each Time Period

Exhibits
The researcher separated the exhibits into three categories: confidential exhibits,
forensic exhibits, and non-forensic exhibits. This exhibit section was comprised of thirty-

seven confidential exhibits, one-hundred twenty-one forensic exhibits, and sixty-six non-

forensic exhibits. (See Table 5.2)

 

 

 

 

 

 

Time Periods Confidential Forensic Exhibits Non-forensic Total
Exhibits exhibits

1997-2000 2% 25% 4% 3 1%

2001 7% 25% 1 1% 43%

2002-2004 8% 14% 16% 38%

 

 

 

 

 

 

Table 5.1 l-Percentage of Confidential, Forensic, and Non-forensic Exhibits Citations during each Time
Period

The percentage of citations regarding the three different types of exhibits changed
during each time period. Between 1997 and 2000, two percent of the total number of
citations composed of confidential exhibits. (See Table 5.3; Table 5.4; Table 5.11; Figure
5.2) In 2001, seven percent of the total number of citations referenced confidential
exhibits. (See Table 5.3; Table 5.4; Table 5.11; Figure 5.2) Between 2002 and 2004, eight
percent of the total number of Trial Chambers’ citations mentioned confidential exhibits.
(See Table 5.3; Table 5.4; Table 5.11; Figure 5.2) The Trial Chambers increased the
number of confidential exhibit three-hundred percent between pre-and post-Rule 92bis
judgments. (See Table 5.3; Table 5.4; Table 5.11; Figure 5.2) After 2001, the
confidential exhibits citations ranked as the fifth most popular type of evidence. (See

Table 5.3; Table 5.4; Table 5.11; Figure 5.2)

83

The Trial Chambers’ citations to forensic exhibits fell. Between the 1997 and
2000 time period and 2001, twenty-five percent of the total number of Trial Chambers’
citations referenced forensic exhibits. (See Table 5.3; Table 5.4; Table 5.11; Figure 5.2)
Between 2002 and 2004, fourteen percent of the total number of citations discussed
forensic exhibits. (See Table 5.3; Table 5.4; Table 5.11; Figure 5.3) The forensic exhibits
citations decreased forty-four percent between pre-and post-Rule 92bis judgments. (See
Table 5.3; Table 5.4; Table 5.11; Figure 5.2)

The Trial Chambers increased the non-forensic exhibits citations throughout the
three time periods. Between the 1997 and 2000 time period, only four percent of the total
number of Trial Chambers’ citations referenced non-forensic exhibits. (See Table 5.3;
Table 5.4; Table 5.11; Figure 5.2) In 2001, eleven percent of the total number of
citations referenced non-forensic exhibits. (See Table 5.3; Table 5.11) Between the 2002
and 2004, sixteen percent of the total number of citations discussed non-forensic exhibits.
(See Table 5.3; Table 5.4; Table 5.11; Figure 5.2) This represented a three-hundred
percent increase between pre-and post-Rule 92bis judgments. (See Table 5.3; Table 5.4;
Table 5.11; Figure 5.2)

Confidential Exhibits

Similar to the confidential witness statements, the researcher could not examine
the confidential exhibits due to the ICTY’s confidential agreements. The researcher
could only confirm that the Trial Chambers cited a particular number of exhibits.

Similar to the confidential and lay witness timeline, the confidential exhibit
timeline presents an unexplained pattern. (See Table 5.2; Figure 5.3; Figure 5.9; Figure

5.1 1) The Trial Chambers began citing confidential exhibits in 2000. (See Table 5.2;

84

Figure 5.11) The frequency of the Trial Chambers’ citations to confidential evidence
rose dramatically when the Trial Chambers cited twelve exhibits in the Kordic case. (See
Table 5.2; Figure 5.11) However, the frequency dropped significantly when the Trial
Chambers cited only one confidential exhibit in 2002. (See Table 5.2; Figure 5.11) The
frequency of Trial Chambers citations rebounded when the Trial Chambers cited seven
confidential exhibits in 2003. (See Table 5.2; Figure 5.11) The frequency of citations

continued to rise when the Trial Chambers cited thirteen confidential exhibits in 2004.

(See Table 5.2; Figure 5.11)

 

 

 

 

 

 

 

 

 

 

 

14 f

12
s... /\ /
g , / \ /
'2' ,* / \ /
g / \ /
= , / \ /

0 L ‘ A v

19;? T1938 ' 19'” ' 2000 l 2001 ' 2002 ' 2003 I 2004
Years
+ Confidential Exhibits

 

 

 

Figure 5.11 Confidential Exhibit Timeline

Similar to confidential witnesses, the frequency of Trial Chambers’ citations to
confidential exhibits continued to rise throughout these three time periods. (See Table
5.2; Figure 5.4; Figure 5.12) The Trial Chambers cited only four confidential exhibits
between 1997 and 2000. (See Table 5.2; Figure 5.12) These four citations represented

eleven percent of the total number of confidential exhibit citations. (See Table 5.12;

85

Figure 5.12) In 2001, the frequency of citations to confidential exhibits increased when
the Trial Chambers cited twelve confidential exhibits. (See Table 5.2; Figure 5.12) These
twelve citations comprised thirty-two percent of the total number of confidential exhibit
citations. (See Table 5.12; Figure 5.12) Between 2002 and 2004, the frequency of
citations almost doubled when the Trial Chambers cited twenty-one confidential exhibits.
(See Table 5.2; Figure 5.12) These twenty-one citations represented fifty-seven percent
of the total number of confidential exhibits citations. (See Table 5.12; Figure 5.12) The
Trial Chambers increased the confidential exhibit citations four-hundred eighteen-percent

between pre-and post-Rule 92bis judgments. (See Table 5.12; Figure 5.12)

 

 

 

 

 

Time Periods Percentage of Confidential Exhibits
1997-2000 1 1%
2001 32%
2002-2004 57%

 

 

 

Table 5.12-Percentage of the Total Number of Confidential Exhibits during each Time Period

86

Number of
Exhibits

 

1997-2000 2001 2002-2004

Years

I Confidential Exhibits

Figure 5.12 Confidential Exhibits in Relation to Rule 92bis

Forensic Exhibits

The researcher was able to examine the forensic exhibits more thoroughly via the
ICTY’s intranet, interoffice programs, and trial transcripts via the World Wide Web.
Similar to the expert witness timeline, the forensic exhibit timeline graphs peaked
between 2000 and 2001. (See Table 5.2; Figure 5.5; Figure 5.13) In 1998, the Trial
Chambers started to cite forensic exhibits when the Trial Chambers referenced one
forensic exhibit. (See Table 5.2; Figure 5.13) In 1999, the frequency of Trial Chambers’
citations slightly increased when the Trial Chambers referenced two forensic exhibits.
(See Table 5.2; Figure 5.13) The frequency of Trial Chambers’ citations dramatically
rose in 2000 when the Trial Chambers cited forty forensic exhibits. (See Table 5.2;
Figure 5.13) In 2001, the Trial Chambers’ citations to forensic exhibits peaked when the

Trial Chambers cited forty-four exhibits. (See Table 5.2; Figure 5.13)

87

 

Number of Exhibits

 

1997 1998 1999 2000 2001 2002 2003 2004
Years

 

+ Forensic Exhibits

 

 

 

Figure 5.13 Forensic Exhibit Timeline

However, in 2002, the frequency of Trial Chambers’ citations to forensic exhibits
abruptly plummeted. (See Table 5.2; Figure 5.13) The Trial Chambers cited only ten
forensic exhibits. (See Table 5.2; Figure 5.13) The frequency of Trial Chambers’
citations to forensic exhibits never rebounded. (See Table 5.2; Figure 5.13) In 2003, the
Trial Chambers cited fourteen exhibits. (See Table 5.2; Figure 5.13) The Trial
Chambers’ citations to forensic exhibits further decreased when the Trial Chambers cited
only twelve exhibits in 2004. (See Table 5.2; Figure 5.13)

In relation to Rule 92bis, the forensic exhibit data did not present a dramatic
fluctuation between time periods as the timeline graph analysis. (See Figure 5.13; Figure
5.14) Between 1997 and 2000, the Trial Chambers cited forty forensic exhibits. (See
Table 5.2; Figure 5.14) These forty citations represented thirty-four percent of the total
number of forensic exhibit citations. (See Table 5.13; Figure 5.13) In 2001, the frequency

of Trial Chambers’ citations slightly increased when the court cited forty-four forensic

88

exhibits. (See Table 5.2; Figure 5.14) These forty-four citations comprised thirty-six
percent of the total number of forensic exhibit citations. (See Table 5.13; Figure 5.14)
Between 2002 and 2004, the frequency of Trial Chambers’ citations slightly decreased
when the Trial Chambers cited thirty-six forensic exhibits. (See Table 5.2; Figure 5.14)
These citations represented thirty percent of the total number of forensic exhibit citations.
(See Table 5.13; Figure 5.14) A forty-four percent decrease occurred in forensic exhibit

citations from pre- to post-Rule 92bis judgments. (See Table 5.13; Figure 5.14)

 

 

 

 

 

Time Periods Percentafiof Forensic Exhibits
1997-2000 34%
2001 36%
2002-2004 30%

 

 

Table 5.13- Percentage of the Total Number of Forensic Exhibits Citations during each Time Period

This relatively consistent number of citations could signify that the Trial
Chambers has accepted to other types of evidence, such as confidential witnesses,
confidential exhibits, and non-forensic exhibits, as the norm to establish a victim’s death.
The Trial Chambers increased the total number of citations from pre-and post-Rule 92bis
judgments. (See Table 5.2; Figure 5.2) But, the Trial Chambers may have not increased
the number of forensic exhibit citations at a similar rate as the other forms of evidence.
This inconsistency may infer that the Trial Chambers were not weighing forensic exhibits

as heavily in post-Rule 92bis judgments than in pre-Rule 92bis judgments.

89

 

Number of
Exhibits

 

1997-2000 2001 2002-2004

Years

I Forensic Exhibits

Figure 5.14 Forensic Exhibits in Relation to Rule 92bis

The researcher fiuther separated forensic exhibits into seven categories: forensic
reports, death certificates, records of bodies, ICTY investigator reports, photographs of

bodies, videos of bodies, and 94bis statements.

Reports

 

: Photos=
Photographs related bodies; Video= Video Related to bodies
5.14 Forensic Exhibits Separated by Category

90

Number of
Exhilits

 

I997 I998 1999 2000 2001 2002 2003 2004

 

Years
I Forensic Reports I Death Certificates 13 Recent I ICTY Reports
I Photo I Vitbo I 9411's

 

Figure 5.15 Aggregated Forensic Exhibit Categories

 

to

investigator report; Photos= Photos related to bodies; Videos= Videos related to bodies
Table 5.15- Percentage of Forensic Exhibits Cited each Year

The Trial Chambers definitely preferred to cite particular types of forensic
evidence. Over the entire eight years, the Trial Chambers preferred to cite photographs
and forensic reports. (See Table 5.14; Table 5.15; Figure 5.15) However, the distribution
of the Trial Chambers’ citations to these two types of forensic exhibits was dramatically
different. (See Table 5.14; Table 5.15; Figure 5.15) Between 2000 and 2001, the
majority of Trial Chambers’ citations to forensic exhibits discussed photographs of the

deceased’s body. (See Table 5.14; Table 5.15; Figure 5.15) The Trial Chambers cited

91

thirty-four and twenty photographs in 2000 and 2001, respectively. (See Table 5.14;
Table 5.15; Figure 5.15)

In 2000, these citations represented ninety percent of the total number of forensic
exhibits. (See Table 5.15; Figure 5.15) F urtherrnore, in 2001, these citations comprised
forty-nine percent of the total number of forensic exhibits. (See Table 5.15; Figure 5.15)
In 2002, the Trial Chambers abruptly stopped citing photographs of the deceased’s body.
(See Table 5.14; Figure 5.15) This interruption was extremely dramatic because the
frequency of citations to photographs was an extremely high percentage of the forensic
exhibits cited in 2000 and 2001. (See Table 5.15; Figure 5.15) The frequency of Trial
Chambers’ citations to photographs of the deceased’s body never rebounded. The Trial
Chambers cited only one forensically related photograph in 2003. (See Table 5.14; Figure
5.15)

The Trial Chambers began citing forensic reports in 1999. (See Table 5.14; Figure
5.15) The frequency of Trial Chambers’ citations increased through 2001, when the Trial
Chambers cited two and nine forensic reports in 2000 and 2001, respectively. (See Table
5.14; Figure 5.15) The Trial Chambers have continuously cited from eight to nine
forensic reports each year between 2002 and 2004. (See Table 5.14; Figure 5.15)
Throughout these years, citations to forensic reports comprised five to seventy-five
percent of the total cited forensic exhibits per year. (See Table 5.15; Figure 5.15)

The Trial Chambers slowly increased their references to ICTY’s investigator
reports. (See Table 5.14; Figure 5.15) In 2001, the Trial Chambers cited three ICTY
investigator reports. (See Table 5.14; Figure 5.15) The Trial Chambers continued citing

ICTY investigator reports in 2003 and 2004 when the Trial Chambers cited the same

92

report in both the Stakic and Brdaninjudgment. (See Table 5.14; Figure 5.15) However,
ICTY’s investigator reports represented only seven to sixteen percent of the total cited
forensic exhibits per year. (See Table 5.15; Figure 5.15)

The Trial Chambers sporadically cited death certificates and records of bodies
throughout the eight years. (See Table 5.14; Figure 5.15) In 1998, the Trial Chambers
cited one exhibit related to death certificates. (See Table 5.14; Figure 5.15) This citation
was the only forensic exhibit cited during this year. (See Table 5.14; Figure 5.15) In
2001, the frequency of Trial Chambers citations jumped to twelve exhibits related to
death certificates. (See Table 5.14; Figure 5.15) Similar to photographs, in 2002, the
Trial Chambers abruptly stopped citing exhibits related to death certificates. (See Table
5.14; Figure 5.15) The Trial Chambers cited only one more exhibit related to death
certificates in 2003. (See Table 5.14; Figure 5.15)

The Trial Chambers also cited records related to bodies sporadically. In 1999, the
Trial Chambers began citing records related to bodies. (See Table 5.14; Figure 5.15) This
citation represented fifty percent of the total forensic exhibited cited in 1999. (See Table
5.15; Figure 5.15) The Trial Chambers cited these types of records in only two other
cases, the Krnojelac and Brdanin judgment. (See Table 5.14; Figure 5.15)

The Trial Chambers rarely referenced videos and 94bis statements. The Trial
Chambers referenced only two videos in the Kupreski case. (See Table 5.14; Figure 5.15)
These references represented five percent of the forensic exhibits cited in 2000. (See
Table 5.15; Figure 5.15) The Trial Chambers referenced only one 94bis statement in the
Naletilic case. (See Table 5.14; Figure 5.15) This citation represented seven percent of

the forensic exhibits cited in 2003. (See Table 5.15; Figure 5.15)

93

 

 

0
1997-2000 2001 2002-2004

Years

 

I Forensic Reports I Death Certificates E1 Records
I ICTY Reports I Photos I Video
94bis

 

 

 

Figure 5.16 Aggregated Forensic Exhibits in relation to Rule 92bis

    

to
investigator report; Photos= Photos related to bodies; Videos= Videos related to bodies
Table 516- Percentage of Each Type of Forensic Exhibit during each Time Period

In relation to Rule 92bis, the Trial Chambers shifted their reliance on written
documents rather than upon visual aids to establish an individual’s death. The Trial
Chambers have steadily increased their citations to forensic reports throughout the three
time periods. (See Table 5.14; Figure 5.16) Between 1997 and 2000, the Trial Chambers
cited only three forensic reports. (See Table 5.14; Figure 5.16) In 2001, frequency of
Trial Chambers’ citations increased to nine references. (See Table 5.14; Figure 5.16) The
number of citations tripled when the Trial Chambers referenced twenty-seven citations

between 2002 and 2004. (See Table 5.14; Figure 5.16)

94

The percentage of forensic reports to the total number of forensic exhibits
increased during each time period. Between 1997 and 2000, the forensic report citations
represented eight percent of the total number of forensic exhibits. (See Table 5.16; Figure
5.16) In 2001, the forensic report citations comprised twenty percent of the total number
of forensic exhibits. (See Table 5.16; Figure 5.16) Between 2002 and 2004, the forensic
report citations represented seventy-six percent of the total number of forensic exhibits.
(See Table 5.16; Figure 5.16) The citations to forensic reports increased eight-hundred
seventy-fifty percent between the 1997 and 2000 time period and the 2002 and 2004 time
period. (See Table 5.16; Figure 5.16)

The Trial Chambers consistently cited ICTY investigator reports throughout the
last two time periods: 2001, 2002-2004. (See Table 5.14; Figure 5.16) These reports
represented seven and eight percent of the total number of cited forensic exhibits for each
year, respectively. (See Table 5.16; Figure 5.16) The citations to ICTY investigator
reports increased eight percent from pre-to post-Rule 92bis judgments. (See Table 5.16;
Figure 5.16)

The Trial Chambers referenced similar authors in few cases. For example, in
2001, the Trial Chambers cited three different ICTY investigator reports. (See Table

5.14; Figure 5.16) However, the same ICTY investigator authored two of the three
reports. (Krstic, Trial Judgment, Aug. 2, 2001 at 1 71) Between 2002 and 2004, the

Trial Chambers referenced ICTY investigator reports in both the Stakic and Brdanin

judgments. (See Table 5.14; Figure 5.14) Similar to 2001, the same ICTY investigator
authored reports in both cases. (Stakic, Trial Judgment, July 31 , 2003 at 1213; Brdanin,

Trial Judgment, Sept. 1, 2004 at Annex C.)

95

The Trial Chambers continuously cited death certificates throughout the three
time periods. (See Table 5.14; Figure 5.16) Between 1997 and 2000, the Trial Chambers
referenced only one exhibit related to death certificates. (See Table 5.14; Figure 5.16)
This citation represented two percent of the total number of forensic exhibits. (See Table
5.16; Figure 5.16) In 2001, the frequency of Trial Chambers’ citations jumped to twelve
references. (See Table 5.14; Figure 5.16) These twelve references represented twenty-
seven percent of the total number of forensic exhibits in 2001. (See Table 5.16; Figure
5.16) The Trial Chambers continued to reference exhibits related to death certificates
when the Trial Chambers referenced one exhibit between 2002 and 2004. (See Table
5.14; Figure 5.16) This exhibit represented three percent of the total number of cited
forensic reports between 2002 and 2004. (See Table 5.16; Figure 5.16) The Trial
Chambers increased death certificate citations by fifty percent between pre-and post-Rule
92bis judgments. (See Table 5.16; Figure 5.16)

The Trial Chambers referenced records related to bodies in two of the three time
period categories. (See Table 5.14; Table 5.16; Figure 5.16) Between 1997 and 2000, the
Trial Chambers referenced one record related to bodies. (See Table 5.14; Figure 5.16)
This citation represented two percent of the total number of forensic exhibits between
1997 and 2000. (See Table 5.16; Figure 5.16) Furthermore, the Trial Chambers cited
three records related to bodies between 2002 and 2004. (See Table 5.14; Figure 5.16)
These three citations represented eight percent of the total number of forensic exhibits.
(See Table 5.16; Figure 5.16) The number of citations to records concerning bodies
increased three-hundred percent between the pre-and post-92bis time periods. (See Table

5.16; Figure 5.16)

96

The Trial Chambers began to cite other forms of written evidence to establish a
victim’s death. Between 2002 and 2004, the Trial Chambers cited one 94bis statement
regarding a pathologist’s testimony concerning an autopsy. (See Table 5.14; Figure 5.16)
This citation represented thee percent of the total number of forensic exhibits during this
time period. (See Table 5.16; Figure 5.16) The number of citations to 94bis statements
increased three-percent during these two time periods. (See Table 5.16; Figure 5.16)

The Trial Chambers decreased their references to visual forensic evidence
throughout these three time periods. (See Table 5.14; Table 5.16; Figure 5.16) Visual
forensic evidence could be incorporated into other types of forensic evidence, such as
forensic reports. However, the researcher did not fully research this possibility.

The frequency of the Trial Chambers’ citations to photographs of the deceased’s
body constantly decreased throughout the three time periods. (See Table 5.14; Figure
5.16) Between 1997 and 2000, thirty-four of the forty-one cited forensic exhibits were
photographs. (See Table 5.14; Figure 5.16) In 2001, twenty of the forty-four cited
forensic exhibits were photographs. (See Table 5.14; Figure 5.16) The Trial Chambers
cited only one photograph between 2002 and 2004, which represented three percent of
the forensic exhibits citations during this time period. (See Table 5.14; Table 5.16; Figure
5.16) The number of photograph citations decreased from eighty-three percent of the total
number of forensic exhibits in the pre-92bis judgments to three percent of the total
number of forensic exhibits in the post-92bis years. (Table 5.16; Figure 5.16) This
fluctuation represented a ninety-six percent decrease in photograph citations. (Table 5.16;

Figure 5.16)

97

The Trial Chambers did not heavily rely on videos of bodies in either of the three
time periods. (See Table 5.14; Table 5.16; Figure 5.16) The Trial Chambers referenced
two videos between 1997 and 2000. (See Table 5.14; Figure 5.16) These references
represented five percent of the total number of forensic exhibit citations during this time
period. (See Table 5.16; Figure 5.16) The Trial Chambers did not reference videos in
2001 or between 2002 and 2004. (See Table 5.14; Figure 5.16) Furthermore, number of
videos citations decreased from five percent of the total number of forensic exhibits in the
pre-92bis judgments to zero percent in the post-92bis judgments. (See Table 5.14; Figure
5.16) This fluctuation represented a one-hundred percent decrease in video citations.
(See Table 5.14; Figure 5.16)

Similar to expert witnesses, some of changes in percentages were
misrepresentations. The Trial Chambers cited the same number of death certificates from
pre-and post-92bis judgments. (See Table 5.14; Figure 5.16) The Trial Chambers cited
only two more records related to bodies between 1997 and 2000 time period and between
2002 and 2004 time period. (See Table 5.14; Figure 5.16) These variations in percentages
were misleading because the Trial Chambers decreased the number of visual forensic
exhibit citations.

Non-forensfixhibits

Compared to other timelines, the non-forensic exhibit timeline was the least
volatile. (See Table 5.2; Figure 5.17) The Trial Chambers began citing non-forensic
exhibits when the Trial Chambers referenced one exhibit in 1999. (See Table 5.2; Figure
5.17) The Trial Chambers gradually increased the frequency of citations to non-forensic

exhibits when the Trial Chambers cited five exhibits in 2000. (See Table 5.2; Figure

98

5.17) In 2001, the frequency of Trial Chambers’ citations to non-forensic exhibits
dramatically increased when the Trial Chambers cited nineteen different exhibits. (See
Table 5.2; Figure 5.17) The frequency of Trial Chambers’ citations dramatically
decreased when the Trial Chambers cited only nine different non-forensic exhibits in
2002. (See Table 5.2; Figure 5.17) Between 2003 and 2004, the frequency of Trial
Chambers’ citations gradually increased when the Trial Chambers cited eleven and
twenty-one non-forensic exhibits, respectively. (See Table 5.2; Figure 5.17)

Similar to confidential witness and confidential exhibits, citations to non-forensic
exhibits increased continuously through the three time periods. Between 1997 and 2000,
the Trial Chambers cited six non-forensic exhibits. (See Table 5.2; Figure 5.18) These six
citations comprised nine percent of the total number of non-forensic exhibit citations.
(See Table 5.2; Table 5 .17; Figure 5.18) In 2001, the Trial Chambers increased the
number of citations to nineteen different exhibits. (See Table 5.2; Figure 5.18) These
citations represented twenty-nine percent of the total number of non-forensic exhibits.
(See Table 5.2; Table 5.17; Figure 5.18) The frequency of Trial Chambers’ citations
increased dramatically when the Trial Chambers cited forty-one non-forensic exhibits
between 2002 and 2004. (See Table 5.2; Figure 5.18) These citations represented sixty-
two percent of the total number of non-forensic exhibit citations. (See Table 5.17; Figure
5.18) This fluctuation represented a five-hundred eighty-eight percent increase in non-
forensic exhibit citations from pre-to post-Rule 92bis judgments. (See Table 5.17; Figure

5.18)

99

 

”‘37:?! 1,0,? ‘ 104/1’, fail/W
”If _ aW/ W
.1. m ’“f‘,/W/
w . ,, WJ/fl/w/i/
”Wear/fl M5? I/IV/ {ii/7’3

1999 2000 2001 200
Years

   
   
 

"r

1 .

 

Number of exhibits
O

 

 

+ Non-forendc exhibitsJ

 

Figure 5.17 Non-forensic exhibit timeline

It’li'llfl/Iff'lli

30 (50‘ ’i'lfiilfill/fl {1

Number or 25 1,511,411; ”5:77: I“
Exhibits 20"1' ’1" [viii l i',

,5 [Hg/J! 1‘- n. '
m If?! ”an, . it ”if! ..
, fl. . III/Brim

5

,

I Non-Forensic Exhibits

Figure 5.18 Non-forensic Exhibits in Relation to Rule 92bis

 

The researcher separated the non-forensic exhibits into two categories: 92bis

statements and miscellaneous exhibits.

Number of
Exhibits

 

1997 1998 1999 2000 2001 2002 2003 2004

Years

I 92bis I Miscellaneous

Figure 5.19 Aggregated Non-Forensic Exhibits

101

 

 

 

 

 

 

 

 

 

 

Years 92bis statements Miscellaneous
1 997 0% 0%

1 998 0% 0%

l 999 0% l 00%

2000 0% 1 00%

200 1 5% 95%

2002 56% 44%

2003 36% 64%

2004 90% 1 0%

 

 

 

 

Table 519- Percentage of 92bis Statements and Miscellaneous Exhibits during each Year

From 1997 to 2004, the Trial Chambers dramatically altered the percentage of
92bis statements and miscellaneous exhibits cited in the judgments. (See Table 5.18;
Table 5.19; Figure 5.19) The Trial Chambers cited only miscellaneous exhibits because
92bis statements did not exist between 1999 and 2000. (See Table 5.18; Table 5.19;
Figure 5.19) In 2001, the Trial Chambers began referencing 92bis statements when the
Trial Chambers cited one 92bis statement in the Kordic judgment. (See Table 5.18; Table
5.19; Figure 5.19) During 2001, the ratio of non-forensic exhibits citations was five
percent 92bis statements to ninety-five percent miscellaneous exhibits. (See Table 5.19;
Figure 5.19)

This ratio between 92bis statements and miscellaneous exhibits did not change
between 2002 and 2003. (See Table 5.18; Table 5.19; Figure 5.19) The Trial Chambers
cited a similar number of 92bis statements and miscellaneous exhibits when the Trial
Chambers cited five 92bis statements and four miscellaneous exhibits in 2002. (See Table
5.18; Table 5.19; Figure 5.19) This ratio became slightly unbalanced when the Trial
Chambers cited four 92bis statements and seven miscellaneous exhibits in 2003. (See
Table 5.18; Table 5.19; Figure 5.19)

By 2004, the ratio of 92bis statements to miscellaneous exhibits was the antithesis

of the ratio established in 2001. (See Table 5.18; Table 5.19; Figure 5.19) The Trial

102

Chambers cited nineteen 92bis statements and only two miscellaneous exhibits. (See
Table 5.18; Figure 5.19) Of the twenty-one cited non-forensic exhibits, ninety percent of
the exhibits were 92bis statements while the remaining ten percent were miscellaneous

exhibits. (See Table 5.19; Figure 5.19)

Number of
Exhibits

 

1997-2000 2001 2002-2004

Years

I 92bis I Miscellaneous

Figure 5.20 Aggregated Non-Forensic Exhibits in Relation to Rule 92bis

A similar analysis can be illustrated via the three time periods. The Trial
Chambers solely cited miscellaneous exhibits because 92bis statements did not exist
between 1997 and 2000. (See Table 5.18; Table 5.20; Figure 5.20) In 2001, Trial
Chambers cited nineteen non-forensic exhibits; five percent of the exhibits were 92bis
statements while ninety-five percent of the exhibits were miscellaneous exhibits. (See
Table 5.18; Table 5.20; Figure 5.20) This Trial Chambers’ single citation to a 92bis
statement created this disproportionate ratio between 92bis statements and miscellaneous
exhibits. (See Table 5.18; Table 5.20; Figure 5.20)

The ratio between 92bis statements and miscellaneous exhibits in 2001 was the
antithesis of the ratio between 92bis statements and miscellaneous exhibits between 2002

and 2004. (See Table 5.18; Table 5.20; Figure 5.20) Between 2002 and 2004, the Trial

103

Chambers cited twenty-eight 92bis statements, which was sixty-eight percent of the non-

forensic exhibits. (See Table 5.18; Table 5.20; Figure 5.18) Altemately, the Trial

Chambers cited only twelve miscellaneous statements, which was thirty-two percent of

the non-forensic exhibits during this time period. (See Table 5.18; Table 5.20; Figure

 

 

 

 

 

5.20)

Time Periods 92bis statements Miscellaneous
1 997-2000 0% 100%

2001 5% 95%
2002-2004 68% 32%

 

 

 

 

Table 5.20-Percentage of 92bis Statements and Miscellaneous Exhibits Citations during each Time Period
The Trial Chambers significantly altered the number of non-forensic exhibit

citations from pre-and post-Rule 92bis judgments. The Trial Chambers decreased the
number of miscellaneous exhibits by sixty-eight percent in pre-and post-Rule 92bis
judgments. (See Table 5.18; Table 5.20; Figure 5.20) In a similar vein, the Trial
Chambers increased the number of non-forensic exhibits by three hundred percent in pre-
and post-Rule 92bis judgments. (See Table 5.18; Table 5.20; Figure 5.20)

F oren_sic Exhibits versus 92bis statements

The researcher compared the number of Trial Chambers’ citations to forensic
exhibits with the number of Trial Chambers’ citations to 92bis statements to emphasize
the importance of 92bis statements in establishing a victim’s death.

In this analysis, the researcher included both confidential 92bis statements and
92bis statements because both types of statements represent witness testimony.
Confidential 92bis statements are confidential witness statements admitted via Rule
92bis. 92bis statements are lay witness statements admitted via Rule 92bis. Both types of
statements are basically the same concept except that the witness’s identity is retracted

for protection purposes in confidential 92bis statements.

104

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year of Confidential 92bis Total

Judgment 92bis
Tadic 1997 0 0 0
Delalic 1998 0 0 0
Jelisic 1999 0 0 0
Kupreski 2000 0 0 0
Blaskic 2000 0 0 0
Kordic 200 l 12 1 13
Krstic 2001 0 0 0
Kvocka 2001 0 0 0
Kmojelac 2002 l 3 4
Vasiljevic 2002 0 2 2
Stakic 2003 7 4 1 l
Naletilic 2003 0 0 0
Brdanin 2004 2 19 2 1
Total ------- 22 29 5 l

 

 

 

 

 

 

Table 5.21- 92bis Statements Separated by Category

This analysis is comparable to the previous discussion concerning non-forensic
exhibits during the three specific time periods. (See Table 5.21; Figure 5.19; Figure 5.20;
Figure 5.21) Similar to previous graphs, the Trial Chambers cited only forensic exhibits
during the first time period because 92bis statements did not exist between 1997 and
2000. (See Table 5.21; Figure 5.19; Figure 5.20; Figure 5.21)

In 2001, the Trial Chambers still heavily relied on forensic exhibits to establish a
victim’s death. (See Table 5.2; Table 5.21; Figure 5.21) The Trial Chambers cited forty-
four forensic exhibits. (See Table 5.2; Table 5.21; Figure 5.21) The Trial Chambers’
citations increased because the Trial Chambers cited three more forensic exhibits in 2001
compare to the previous time period. (See Table 5.2; Table 5.21; Figure 5.21)
Furthermore, the Trial Chambers cited only thirteen 92bis statements, which included
both confidential and non-forensic 92bis statements. (See Table 5.6; Table 5.21; Figure

5.21)

105

Number of Exhibits

 

1997-2000 2001 2002-2004

Years

 

LI Forensic Exhibits I 92bis and Confidential92bis Exhibits I

 

5.21 Forensic Exhibits versus 92bis and Confidential 92bis Exhibits in Relation to Rule 92bis

The Trial Chambers’ reliance shifted to 92bis statements to justify a victim’s
death between 2002 and 2004. (See Table 5.2; Table 5.21; Figure 5.21) The Trial
Chambers were actually citing more 92bis statements than forensic exhibits. (See Table
5.2; Table 5.21; Figure 5.21) The Trial Chamber cited thirty-eight 92bis statements while
citing only thirty-six forensic exhibits. (See Table 5.2; Table 5.21; Figure 5.21)

Although the difference between the two categories was minimal, the rate of the
Trial Chambers’ increasing reliance on 92bis statements was remarkable.(See Table 5.2;
Table 5.21; Figure 5.21) The Trial Chambers cited twenty-five more 92bis statements
within a two year time period. (See Table 5.2; Table 5.21; Figure 5.21) Furthermore. the
Trial Chambers were definitely decreasing the number of citations to forensic exhibits
because the Trial Chambers cited eight fewer exhibits between 2002 and 2004 than 2001.

(See Table 5.2; Table 5.21; Figure 5.21)

106

Statistical Analysis

This study analyzes two major and seven secondary hypotheses to determine if
the changes in frequencies of the Trial Chambers citations before and after the
amendments to the ICTY’s Rules of Procedure and Evidence to incorporate Rule 92bis
were statistically significant. These nine hypotheses described nine different scenarios
described in Chapter IV. (See Table 5.22)

The researcher performed the Mann-Whitney U test. The researcher calculated the
U and U1 for every hypothesis and compared the result to the critical value of U. The
critical value of U was four for three reasons: First, these hypotheses were all two-tailed
tests. Second, the first sample’s number of observations (“m”) was five. Finally, the

second’s sample’s numbers of observations (“n2”) was five. The researcher rejected the
null hypothesis if U or U15 U (a). The researcher did not calculate 2 because the small

size was too small.

1. Hm: There is no significant difference between the Trial Chambers’ citations
to witnesses in establishing a victim’s death prior to and after 2001.
Hal: There is a significant difference between the Trial Chambers’ citations to

witnesses in establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more witnesses in five judgments (M= 30.4, SD=
19.04) after the amendment to the ICTY’s Rules of Procedure and Evidence to
incorporate Rule 92bis than in the five judgments (M=23.2, SD= 17.58) decided before

the amendment to incorporate Rule 92bis. (See Table 6.13) The data was subject to a

107

Mann-Whitney U test, which yielded a non-significant result 17 or 8 2 4, ms. (See Table

6.13) This result suggests that the amendment to incorporate Rule 92bis did not have an

effect on the frequency of witness citations.

 

Category Group Mean Standard N. N» U
’ Deviation

U1

(1:.05

Asterisk if
statistical
significant

 

Witness 1 23.2 17.58 5 n/a 17

n/a

 

Witness 2 30.4 19.04 n/a 5 n/a

A

 

Confidential 1 9.2 l 1.51 5 n/a 19.5
Witness

n/a

 

Confidential 2 18.4 10.97 n/a 5 n/a
Witness

5.5

 

Expert 1 5.4 6.50 5 n/a 9
Witness

n/a

 

Expert 2 1 .2 .836 n/a 5 n/a
Witness

 

Lay l 8.6 7.635 5 n/a 13.5
Witness

n/a

 

Lay 2 10.8 10.059 n/a 5 n/a
Witness

11.5

 

Exhibit 1 10.2 .816 5 n/a 21

n/a

 

Exhibit 2 19.6 .816 n/a 5 n/a

 

Confidential 1 .8 1.78 5 n/a 18
Exhibits

n/a

 

Confidential 2 4.2 5.718 n/a 5 n/a
Exhibits

 

Forensic 1 8.2 16.67 5 n/a 20
Exhibits

 

Forensic 2 7.2 4.26 n/a 5 n/a
Exhibits

 

Non- l 1.2 1.30 5 n/a 22.5
forensic
Exhibits

n/a

 

Non- 2 8.2 7.85 n/a 5 n/a
forensic
Exhibits

2.5

 

Sum of 1 0 0 5 n/a 22.5
Confidential
92bis
statements
and 92bis
statements

n/a

 

 

Sum of 2 7.6 8.56 n/a 5 n/a
Confidential
92bis
statements
and 92bis
statements

 

 

 

 

 

 

 

2.5

 

 

 

Table 5.22- Statistical Calculations for Nine Hypotheses

108

 

 

2. H011: There is no significant difference between the Trial Chambers’ citations
to confidential witnesses in establishing a victim’s death prior to and after 2001.
Ha“: There is significant difference between the Trial Chambers’ citations to

confidential witnesses in establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more confidential witnesses in five judgments (M=
18.4, SD=10.97) after the amendment to the ICTY’s Rules of Procedure and Evidence to
incorporate Rule 92bis than in the five judgments (M= 9.2, SD= 11.52) decided before
the amendment to incorporate Rule 92bis. (See Table 6.13) The data was subject to a

Mann-Whitney U test, which yielded a non-significant result 19.5 or 5.5 2 4, n.s. (See

Table 6.13) This result suggests that the amendment to incorporate Rule 92bis did not

have an effect on the frequency of confidential witness citations.

3. H01 2: There is no significant difference between the Trial Chambers’ citations
to expert witnesses in establishing a victim’s death prior to and after 2001.
H312: There is a significant difference between the Trial Chambers’ citations

to expert witnesses in establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more expert witnesses in five judgments (M= 5.4, SD=
6.50) before the amendment to the ICTY’s Rules of Procedure and Evidence to
incorporate Rule 92bis than in the five judgments (M=1.2, SD=.837) decided after the

amendment to incorporate Rule 92bis. (See Table 6.13) The data was subject to a Mann-

Whitney U test, which yielded a non-significant result 9 or 16 2 4, n.s. (See Table 6.13)

109

This result suggests that the amendment to incorporate Rule 92bis did not have an effect

on the frequency of expert witness citations.

4. H013: There is no significant difference between the Trial Chambers’ citations
to lay witnesses in establishing a victim’s death prior to and after 2001.
H313: There is a significant difference between the Trial Chambers’ citation to

lay witnesses in establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more lay witnesses in five judgments (M= 10.8, SD=
10.059) after the amendment to the ICTY’s Rules of Procedure and Evidence to
incorporate Rule 92bis than in the five judgments (M=8.6, SD= 7.635) decided before the
amendment to incorporate Rule 92bis. (See Table 6.13) The data was subject to a Mann-

Whitney U, which yielded a non-significant result 13.5 or 11.5 2 4, n.s. (See Table 6.13)

This result suggests that the amendment to incorporate Rule 92bis did not have an effect

on the frequency of lay witness citations.

5. H02: There is no significant difference between the Trial Chambers’ citations
to exhibits in establishing a victim’s death prior to and after 2001.
H32: There is a significant difference between the Trial Chambers’ citation to

exhibits in establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more exhibits in five judgments (M= 19.6, SD= 17.415)

after the amendment to the ICTY’s Rules of Procedure and Evidence to incorporate Rule

110

 

92bis than in the five judgments (M=10.2, SD=18.939) decided before the amendment to

incorporate Rule 92bis. (See Table 6.13) The data was subject to a Mann-Whitney U test,
which yielded a significant result 21 or 4 S 4 (See Table 6.13) This result suggests that

the amendment to incorporate Rule 92bis did have an effect on the frequency of exhibit

citations.

6. H021: There is no significant difference between the Trial Chambers’ citations
to confidential exhibits in establishing a victim’s death prior to and after 2001.
Ha; 12 There is a significant difference between the Trial Chambers’ citation to

confidential exhibits in establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more confidential exhibits in five judgments (M= 4.2,
SD= 5.718) after the amendment to the ICTY’s Rules of Procedure and Evidence to
incorporate Rule 92bis than in the five judgments (M=.80, SD=1.788) decided before the
amendment to incorporate Rule 92bis. (See Table 6.13) The data was subject to a Mann-

Whitney U test, which yielded a non-significant result 18 or 7 2 4 n.s. (See Table 6.13)

This result suggests that the amendment to incorporate Rule 92bis did not have an effect

on the frequency of confidential exhibit citations.

7. H022: There is no significant difference between the Trial Charnbers’ citations
to forensic exhibits in establishing a victim’s death prior to and after 2001.
Han: There is a significant difference between the Trial Chambers’ citation to

forensic exhibits in establishing a victim’s death prior to and after 2001.

111

 

The Trial Chambers cited more forensic exhibits in five judgments (M= 8.2, SD=
16.67) before the amendment to the ICTY’s Rules of Procedure and Evidence to
incorporate Rule 92bis than five in the judgments (M=—7.2, SD=4.266) decided after the

amendment to incorporate Rule 92bis. (See Table 6.13) The data was subject to a Mann-
Whitney U test, which yielded a non—significant result 20 or 5 2 4 n.s. (See Table 6.13)

This result suggests that the amendment to incorporate Rule 92bis did not have an effect

on the frequency of forensic exhibit citations.

8. H033: There is no significant difference between the Trial Chambers’ citations
to non-forensic exhibits in establishing a victim’s death prior to and after 2001.
H2123: There is a significant difference between the Trial Chambers’ citation to

non-forensic exhibits in establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more non-forensic exhibits in five judgments (M= 8.2,
SD= 7.854) after the amendment to the ICTY’s Rules of Procedure and Evidence to
incorporate Rule 92bis than in the five judgments (M=1.2, SD=1.30) decided before the
amendment to incorporate Rule 921715. (See Table 6.13) The data was subject to a Mann-
Whitney U, which yielded a significant result 2.5 or 22.5 S 4 (See Table 6.13) This result
suggests that the amendment to incorporate Rule 92bis did have an effect on the

frequency of non-forensic exhibit citations.

112

9. H034: There is no significant difference between the Trial Chambers’ citations
to the sum of confidential 92bis statements and regular 92bis statements in
establishing a victim’s death prior to and after 2001.

Ha“: There is a significant difference between the Trial Chambers’ citation to
the sum of confidential 92bis statements and regular 92bis statements in

establishing a victim’s death prior to and after 2001.

The Trial Chambers cited more confidential 92bis statements and 92bis
statements in five judgments (M= 7.6, SD= 8.561) after the amendment to the ICTY’s
Rules of Procedure and Evidence to incorporate Rule 92bis than in the five judgments
(M=0, SD=0) decided before the amendment to incorporate Rule 92bis. (See Table 6.13)

The data was subject to a Mann-Whitney U, which yielded a significant result 2.5 or 22.5
S 4 (See Table 6.13) This result suggests that the amendment to incorporate Rule 92bis

did have an effect on the frequency of confidential 92bis statements and 92bis statement
citations.
Summary

The Trial Chambers favored witness testimony to establish a victim’s death
through these eight years. During the three time periods, the Trial Chambers’ citation to
witness testimony ranged from either fifty-seven percent to sixty-nine percent of the total
number of citations. Rule 92bis did not affect the number of witness citations because
only a ten-percent decrease in the number of witness citations existed between the 1997
and 2000 time period and between the 2002 and 2004 period. On an analytical level, this

ten-percent decrease was not statistically significant; however, this result conformed to

113

 

the researcher’s expectations because the researcher realized that the Trial Chambers
primarily relied upon witness testimony to establish a victim’s death throughout each of
the cases.

The Trial Chambers preferred particular types of witnesses in post-Rule 92bis
judgments. Within the witness category, the Trial Chambers cited confidential exhibits
the most frequently. The Trial Chambers increased the number of citations to
confidential witnesses by thirty-seven percent since Rule 92bis. Similar to the witness
category, the increase in confidential witness citations was not statistically significant.
This result conformed to the researcher’s expectations because the fluctuation in the Trial
Chambers citations regarding the overall witness category was not statistically
significant.

Lay witness testimony was the second most popular type of evidence cited by the
Trial Chambers between the 1997 and 2000 time period and between the 2002 and 2004
time period. Rule 92bis did not affect the number of lay witness citations because only a
fifteen-percent decrease existed between the 1997 and 2000 time period and the 2002 and
2004 time period. Again, similar to confidential witnesses, the decrease in Trial
Chambers citations was not statistically significant. This result conformed to the
researcher’s expectations because the fluctuation in the Trial Chambers citations
regarding the overall witness category was not statistically significant.

Since Rule 92bis, the Trial Chambers decreased the number of expert witness
citations. Between 1997 and 2000, expert witness citations were ranked the fourth most
popular type of evidence cited by the Trial Chambers. Expert witness citations slipped to

the least cited type of evidence in post-Rule 92bis judgments. The Trial Chambers

114

decreased the number of expert witness citations by eighty-one percent in post-Rule 92bis
judgments. This fluctuation was not statistically significant; however, this result
conformed to the researcher’s expectations because the fluctuation in the Trial Chambers
citations regarding the overall witness category was not statistically significant.

The Trial Chambers referenced different types of expert witness in pre-and post-
Rule 92bis judgments. Between 1997 and 2001, the Trial Chambers relied on an array of
experts, which included investigators, forensic anthropologists, forensic archeologists,
forensic pathologists, military personnel, and lawyers. In post-Rule 92bis judgments. the
Trial Chambers only referenced investigators, lawyers, and archeologists.

Since Rule 92bis, the Trial Chambers has changed their attitudes on exhibits.
First, the Trial Chambers definitely favored exhibits because they significantly increased
the number of citations to exhibits from pre-and post-Rule 92bis judgments. The Trial
Chambers increased the frequency of exhibit citations by twenty-three percent from pre-
and post-Rule 92bis judgments. Specifically, the Trial Chambers relied on non-forensic
exhibits because they have significant increased number of citations to non-forensic
exhibits from pre-and post-Rule 92bis judgments. The fluctuation in non-forensic
exhibits resulted in a five-hundred eighty-eight percent increased between 1997 and 2000
time period and 2002 and 2004 time period.

Second, the Trial Chambers decreased the number of citations to forensic
exhibits. The Trial Chambers decreased the number of forensic exhibit citations by forty-
four percent from pre-and post-Rule 92bis judgments. This fluctuation was not
statistically significant. Although the Trial Chambers increased the total number of

citations from pre-and post-Rule 92bis judgments, the Trial Chambers consistently cited

115

similar number of citations during three time periods. The Trial Chambers may not have
increased the number of forensic exhibit citations at a similar rate as the other forms of
evidence. This inconsistency may infer that the Trial Chambers were not relying on
forensic exhibits as heavily in post-Rule 92bis judgments as in pre-Rule 92bis judgments.
Third, similar to expert witnesses, the Trial Chambers referenced different types
of forensic exhibits in pre-and post-Rule 92bis judgments. Between 1997 and 2001, the
Trial Chambers relied on both written and visual forensic exhibits to establish a victim’s
death. In post-Rule 92bis judgments, the Trial Chambers usually referenced written
documents, which included forensic reports, death certificates, records regarding bodies,
ICTY investigator reports, and 94bis statements, rather than visual forensic exhibits.
Fourth, the Trial Chambers has dramatically increased the number of 92bis
statements citations since 2001. This rule represented an alternative route for the Trial
Chambers to admit individual testimony to establish a victim’s death. The Trial
Chambers can admit eyewitness testimony to establish death though two avenues:
directly via witness testimony and indirectly through 92bis statements. The Trial
Chambers approved of this rule and trend because the number of 92bis statement
citations increased by sixty-eight percent from pre-and post-Rule 92bis judgments.
Finally, the Trial Chambers cited more confidential 92bis statements and 92bis
statements than forensic exhibits to establish death in post-92bis judgments. The Trial
Chamber cited thirty-eight 92bis statements while citing only thirty-six forensic exhibits
between 2002 and 2004. Although the difference between the two categories was
minimal, the increasing rate of the Trial Chambers’ reliance on 92bis statements was

remarkable. The Trial Chambers cited twenty-five more 92bis statements within a two

116

year time period. Furthermore, the Trial Chambers were definitely decreasing the
number of citations to forensic exhibits because the Trial Chambers cited eight fewer
exhibits between 2002 and 2004 than 2001. This trend could signify that the Trial
Chambers were placing more weight on non-forensic exhibits rather than forensic
exhibits to establish death. This observation is corroborated by the fact that the
composite increase in confidential 92bis statements and 92bis statements were
statistically significant between pre-and post-Rule 92bis judgments. In the future, the
Trial Chambers could decrease the number of citations to forensic exhibits rather than

maintaining a consistent number of citations.

117

 

CHAPTER VI: DISCUSSION
Introduction

The policy justifications for the ICTY incorporate a variety of reasons. First, the
ICTY creates an historical record of events occurring in the former Yugoslavia between
1991 and roughly 2000. This historical record is necessary to understand the events
leading to and occurring during the war. Hopefully, this knowledge will prevent future
similar situations. (McCelland 2002, pp. 2-5) Second, this tribunal can dispense justice
in the “eyes of the victim, defendants, and the world community.” (McCelland 2002, pp.
2-5) One way of enforcing humanitarian law is to identify and prosecute individuals for
their criminal actions. (McCelland 2002, pp. 2-5) Prosecution encourages public trust and
respect for the criminal justice system because it makes individuals accountable for their
actions. Finally, since these types of tribunals are relatively rare, ICTY presents a vehicle
to develop international humanitarian jurisprudence. (McCelland 2002, pp. 2-5)

Without accurate information, these justifications will deteriorate. For example,
the historical record will be incorrect. Various experts and lay individuals will not
understand the events leading to and occurring in the former Yugoslavia during this
specific time period. (McCelland 2002, pp. 2-5)

On a smaller scale, the victims and/or the defendants will not achieve justice via
the court system. With inaccurate information, doubt will cloud the Trial Chambers’
proceedings. (McCelland 2002, pp. 2-5) The defendant(s) may not receive a fair trial
because incorrect information may lead to a false conviction or release a guilty
individual. (McCelland 2002, pp. 2-5) If a false conviction is the result of this inaccurate

information, the defendant(s) suffer because a wrongfully convicted individual rarely

118

obtains compensation or release from their sentence. (Judges 2000, pp. 231-240)
Furthermore, if the incorrect information leads to release of a guilty individual, society
suffers because the objectives of retribution and deterrence are not advanced. (Judges
2000, pp. 231-232) As a result, the ICTY’s reputation will slowly deteriorate.

Besides theoretical policy issues, the developments in international humanitarian
jurisprudence will stop. With inaccurate information, any legal precedent set by the
ICTY will be flawed. These defects will continuously perpetrate inferior legal precedent.
(McCelland 2002, pp. 2-5)

As previously discussed in Chapter III, the ICTY’ Rules of Procedure and
Evidence represent a blend of two legal traditions, the adversarial and inquisitorial
system. The policies regarding the evidentiary rules signify the underlying concept of the
truth each system is attempting to achieve. Obviously, the evidentiary rules in the
adversarial system are exclusionary to prevent particular types of evidence to be
admitted. (McCelland 2002, pp. 10-13; Weigend 2003, pp. 159-161; May & Wierda
2002, pp. 18-19; Kagan 2002, pp. 11-14) As a consequence, procedural truth is the only
tangible form of truth. Alternatively, inquisitorial systems’ rules of evidence are
inclusive because “all relevant and best evidence” should be admissible to ascertain the
substantive truth. (McCelland 2002, pp. 10-13; Weigend 2003, pp. 159-172; Langbein
1979, pp. 206-208)

Witness Testimony

To establish either standard of truth, the courts admit various types of evidence.

In most domestic and international courts, the courts favor eyewitness testimony to

portray and depict events. (Judges 2000, pp. 231-234; May & Wierda 2002, pp. 163-169)

119

Eyewitness testimony can present first-hand accounts of the events. At the ICTY,

eyewitness testimony could discuss the crime site, the events of a murder, and the

identification of the perpetrator. (Jelisic, Trial Judgment, Dec. 14, 1999 at 11' 88-95;

Vasiljevic, Trial Judgment, Nov. 29, 2002 at 11 95-115) According to Tadic, the Trial
Chambers may solely rely on eyewitness testimony to depict these events as well as
identify the perpetrator. (Tadic, Opinion and Judgment, May 7, 1997 at 1 240.) The Trial

Chambers hopes that procedural safeguards, such as cross-examination and judicial fact-
finders, articulated in the Rules of Procedure and Evidence will prevent incorrect
information to be incorporated into the trial transcript and judicial opinions. (May &
Wierda 2002, pp. 24-25, 284-288) The Trial Chambers also considers ‘Vvhether a
statement was made contemporaneously to the events described, whether it was made
under oath and whether the evidence is corroborated” to determine the witness’s
creditability. (May & Wierda 2002, pp. 285)

Eyewitness testimony can introduce inaccurate information into the trial transcript
even with these safeguards. First, an assortment of factors can affect witness testimony.
For example, the time lapse between the actual incident and time of testimony can
influence the accuracy of the witness’s testimony. Moreover, the seriousness of the
crime and the presence of a weapon can alter the witness’s ability to recall the event or
identify the perpetrator. (Judges 2000, pp. 231-234)

These types of factors are relatively common at the ICTY. Many of these trials
depicted events that occurred between five to fourteen years ago. Furthermore, all of the
events tried at the ICTY are considered “serious acts against humanity.” (May & Wierda

2002, pp. 166-168) By the definition, most of the crimes discussed in the ICTY

120

courtroom are extraordinary violent crimes. (May & Wierda 2002, pp. 166-168) Many of
these cases portray events during military actions, concentration camps, violent

interrogations, and annihilation of a population within short periods of time. (T adic,
Opinion and Judgment, May 7, 1997 at 11 195-294; Krstic, Trial Judgment, Aug. 2,
2001 at 11 37-70; Kordic and Cerkez, Trial Judgment, Feb. 26, 2001 at 11 557-576;

Stakic, Trial Judgment, July 31, 2003 at 11 197-200)

Second, investigators can also contaminate witness statements. The “post-event
information contamination effect” reveals that witnesses will response to investigators’
suggestions or leading questions to appease authority figures rather than recall events
from their own independent recollection. (Judges 2000, pp. 264-270) This contamination
can occur regarding the accuracy of the witness’ recollection as well as the witness’s
subjective assessment of the statement’s accuracy. (Judges 2000, pp. 264-270) However,
the researcher cannot and will not comment on the ICTY investigators’ techniques in
securing a witness statement.

Finally, a witness’s confidence level can also influence the accuracy of the court
proceedings. Although an attorney has impeached a witness through cross-examination,
incorrect eyewitness testimony will be believed because the legal system “places so much
weight on witness confidence as an indicator of witness creditability”. (Judges 2000, pp.
248-251; Doyle 1998, pp. 12-14) However, the ICTY Trial Chambers has tried to combat
this issue by realizing that “confident demeanor is a personality trait and not necessarily a

reliable indicator of truthfulness or accuracy.” (Kupreskic et al. , Appeals Chamber

Judgment, Oct. 23, 2001 at 1 138; May & Wierda 2002, p. 169)

121

F orenrsic Evidencgnd Expert Witness Testimony

The goal of forensic science is to provide “the best context, the fairest context,
and the optimal context” to discover the truth. (Kiely 2000, pp. 404-406) Forensic
scientists are required to use well documented procedures in the recognizing, collecting,
and protecting physical evidence. (Kiely 2000, pp. 404-406) By following these
procedures, the information discovered at the crime sites maintains its integrity. (Kiely
2000, pp. 404-406) Creditable information can lead to accurate reenactment of events.

In the judicial process, forensic evidence can be “used to reconstruct the historical
events that encompass the crime being prosecuted” through potentially two avenues.
(Kiely 2000, pp. 415—416) Forensic evidence can corroborate eyewitness testimony in an
objective manner. For example, in the Krstic case, evidence discovered in mass grave
exhumations corroborated eyewitness testimony regarding the event in the Srebrenica
massacres. (Krstic, Trial Judgment, Aug. 2, 2001 at 1 71) The human remains and
religious symbols excavated from these graves supported the survivors’ testimony from
Srebrenica. (Krstic, Trial Judgment, Aug. 2, 2001 at 11' 72-79) This physical evidence
corroborated the witness’ testimony, which amplified the witness’s creditability. Under
these circumstances, the judges assumed that the information was accurate.

Forensic evidence can also provide a factual account of a victim’s fate when
eyewitness testimony is insufficient. (Avery 2004, pp. 23 5-253) For example, in
Argentina, many individuals were kidnapped, tortured, and killed during the military
regime in the late 19705. (Avery 2004, pp. 239-240) By 1976, the regime was

kidnapping thirty individuals per day. The victim’s fate was rarely known; “only 1

122

percent of the victims whereabouts [were] verified—the other 99 percent. . .had to be
given up for dead.” (Avery 2004, pp. 239-240)

In this chaos, the military regime was abducting pregnant women. These women
were sent to concentration camps and forced to give birth. (Avery 2004, pp. 250-253)
The biological mothers were killed while the newborn babies were given to “politically
acceptable parents.” (Avery 2004, pp. 214-242) All documentation regarding this practice
was destroyed. (Avery 2004, pp. 250-251)

Forensic science provided factual information regarding both victims many years
after the event. A forensic anthropologist testified that the identified female body was
pregnant before death. (Avery 2004, pp. 250—254) Furthermore, forensic anthropologist
testified that the identified female body delivered her child before death and she was
killed in execution style. (Avery 2004, pp. 250-254) The children of these women are
now being identified through DNA. (Avery 2004, pp. 252-254) Through the court
system, the children are being returned to their biological families.

Forensic evidence used to clarify a victim’s fate can be found in the ICTY case

law. In the Stakic case, the Trial Chambers stated that forty-four people were removed
from a concentration camp and put on a bus. (Stakic, Trial Judgment, July 31, 2003 at 1

210) These forty-four individuals were never seen again. The Trial Chambers reported

that “during the exhumation in Jama Lisac, 56 bodies were found. Most of them died
from gunshot injuries.” (Stakic, Trial Judgment, July 31, 2003 at 1 210) The DNA
analysis aided the ICTY investigator in identifying the bodies. (Stakic, Trial Judgment,

July 31, 2003 at 1 210)

123

Forensic evidence is usually presented via expert witness testimony. An expert is
a “witness who has requisite knowledge and experience to make inferences based upon
technical matters.” (Siegel 1997, pp. 170-171) For example, a forensic anthropologist
can discuss the manner which an individual died based upon trauma on the human
skeleton. In theory, expert testimony can provide an objective scientific opinion about a
particular subject.

However, similar to eyewitness testimony, expert witness testimony can be
tainted. The theory regarding forensic evidence assumes that the scientist completes his
analysis in an ethnical manner. Without this professional integrity, this type of evidence
will be undependable and possible lead to inaccurate information. (Brown, Williamson &
Barkacs 2002, pp. 85-87)

As previously discussed in Chapter 111, one of the procedures in protecting the
evidence’s reliability is to question the expert’s objectivity. In the inquisitorial system,
an expert testimony is inherently objective because the investigative judge hired the
expert. (Kagan 2001, p. 107; Langbein 1985, pp. 835-836) Neither the judge nor the
expert has a professional interest in the lawsuit. In contrast, in the adversarial system, the
argument arises that the expert testimony may be tainted because the expert is hired by
either the prosecutor or the defense to describe the evidence in the “best possible light”
for their side. (Kagan 2001, p. 105; May & Weirda 2002, p.17-18; Pizza 1998, p. 844-
845) The ICTY’s trial procedures are similar to the adversarial process regarding this
aspect because the OTP and defense hires its own experts. (McCelland 2002, pp. 32-34;

Table 5.2; Table 5.8; Table 5.9; Figure 5.7; Figure 5.8)

124

Another procedure in protecting the forensic evidence’s and expert witness’s
creditability is to scrutinize the reliability of scientific process. In the United States, the
federal court system requires the expert witness testimony to be a “product of reliable
principles and methods” and “wimess has applied the principles and methods reliability
to the facts of the case.” (FED.R.EVID 702; Daubert v. Merrell Dow Pharmaceuticals,
Inc, 509 US. 579 (1993)) The ICTY Trial Chambers may not be using this safeguard
because the judge’s gate-keeping task is unnecessary at this Tribunal. (Broeders 2003, p.
8)

Imbalance

Eyewitness testimony and forensic evidence have their positive attributes as well
as their downfalls. Within the criminal justice system, both types of evidence
compliment each other. Forensic evidence corroborates eyewitness testimony in order to
improve the witness’s creditability. Although this type of evidence is expensive and
unnecessary, forensic evidence can also provide answers when eyewitness testimony may
inadequate. However, forensic evidence can never replace eyewitness testimony because
expert witnesses or forensic evidence could never fully describe the events during the
trial proceedings. A balance between eyewitness testimony and forensic evidence will
proved the courts with the most accurate information.

The ICTY Trial Chambers definitely favored eyewitness testimony. (See Table
5.2; Table 5.4; Table 5.11; Figure 5.2) This bias attitude was apparent in the analysis
regarding the total number of citations. (See Table 5.2; Table 5.4; Table 5.11; Figure 5.2)
Between 1997 and 2000, confidential witnesses and lay witness comprised fifty-three

percent of the total number of citations. (See Table 5.2; Table 5 .4; Table 5.11; Figure 5.2)

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Expert testimony and forensic evidence composed of forty-one percent of the total
number of citations. (See Table 5.2; Table 5.4; Table 5.11; Figure 5.2) During this time
period, the total number of citations was relatively balanced between eyewitness
testimony, expert witness testimony, and forensic exhibits. (See Table 5.2; Table 5.4;
Table 5.11; Figure 5.2)

In post-Rule 92bis judgments, an entirely different trend existed. Confidential
witnesses and lay witness citations composed fifty-nine percent of the total number of
citations. (See Table 5.2; Table 5.4; Table 5.11; Figure 5.2) This increase was a result of
the Trial Chambers increasing the number of confidential witnesses during each time
period. (See Table 5.5; Figure 5.4) Furthermore, the number of lay witness citations
increased because the Trial Chambers cited forty-three percent of these citations between
2002 and 2004. (See Table 5.10; Figure 5.10) In contrast, expert witness and forensic
exhibit citations comprised sixteen percent of the total number of citations. (See Table
5.2; Table 5.4; Table 5.11; Figure 5.2)

This comparison did not incorporate the non-forensic exhibits, which represented
sixteen percent of the total number of citations. (See Table 5.4; Table 5.11) Sixty-eight
percent of these citations are 92bis statements. (See Table 5.18; Table 5.19; Table 5.20)
This type of statement represented an alternative avenue for the Trial Chambers to admit
lay witness testimony. The 92bis statement citations should be included in this
comparison.

The Trial Chambers curbed their reliance on expert witnesses and forensic
evidence. In post-Rule 92bis judgments, the Trial Chambers decreased the number of

expert witnesses by eighty-one percent. (See Table 5.2; Table 5.4; Table 5.11) This

126

dramatic drop was a result of the Trial Chambers referencing only eleven percent of the
expert witness citations between 2002 and 2004. (See Table 5.6; Figure 5.6)

This decrease in the number of citations affected the status of expert witnesses.
(See Table 5.2; Table 5.4; Table 5.11) In pre-Rule 92bis judgments, expert witness
citations were the fourth most popular type of evidence cited by the Trial Chambers. (See
Table 5.2; Table 5.4; Table 5.11) Between 2002 and 2004, expert witness citations were
the least popular type of evidence. (See Table 5.2; Table 5.4; Table 5.11)

Within the expert witness category, the Trial Chambers relied on impartial
experts. In post-Rule 92bis judgments, ICTY investigators represented fifty percent of
the expert witness citations. (See Table 5.7; Table 5.9; Figure 5.8) These individuals
definitely have a professional interest in the proceedings because they were employees of
the Tribunal. The remaining type of experts, an archeologist and lawyers, also have a
professional interest because they were hired by the OTP to articulate their opinion. (See
Table 5.7; Table 5.9; Figure 5.8)

Moreover, forensic exhibit citations dwindled by forty-four percent in post-Rule
92bis judgments. (See Table 5.2; Table 5.13; Figure 5.14) Although the Trial Chambers
consistently cited similar number of citations during the three time periods, the Trial
Chambers increased the total number of citations from pre-and post-Rule 92bis
judgments. (See Table 5.2; Figure 5.13; Figure 5.2) The Trial Chambers did not increase
the number of forensic exhibit citations at a similar rate as the other forms of evidence.
This inconsistency may infer that the Trial Chambers were not relying on forensic

exhibits as heavily in post-Rule 92bis judgments.

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The Trial Chambers also increased the number of eyewitness citations via non-
forensic exhibits. In post-Rule 92bis judgments, the Trial Chambers increased the
number of non-forensic exhibits by five-hundred eighty-eight percent, which was
statistically significant. (See Table 5.2; Table 5.11; Table 5.22) This increase was a
result of the Trial Chambers referencing sixty-two percent of the non-forensic citations
between 2002 and 2004. (See Table 5.17; Figure 5.18) Specifically, the Trial Chambers
increased the number of 92bis statement by sixty-eight percent in post-Rule 92bis
judgments. (See Table 5.18; Table 5.19; Table 5.20; Figure 5.20)

Furthermore, the Trial Chambers favored 92bis statements more than forensic
exhibits to establish a victim’s death in post-Rule 92bis judgments. (See Table 5.2; Table
5.11; Table 5.21; Figure 5.21) Although the Trial Chamber cited only two more 92bis
statements between 2002 and 2004 than forensic exhibits, the increasing rate of the Trial
Chambers reliance on 92bis statements was remarkable. (See Table 5.2; Table 5.11;
Table 5.21; Figure 5.21) This observation was corroborated by the fact that the composite
increase in confidential 92bis statements and 92bis statements were statistically
significant between pre-and post-Rule 92bis judgments. (See Table 5.22)

The scales of justice regarding the types of evidence to establish a victim’s death
are out of balance. Although 92bis statements may accelerate the trial process, the ICTY
may be sacrificing accurate information. This sacrifice may be extremely significant
because it may affect the Tribunal’s integrity. Eventually, this imbalance could taint the

policy justifications for this court.

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CHAPTER VII: CONCLUSION

Introduction

 

This chapter discusses the researcher’s conclusions regarding this study. This
researcher recaps the research questions, methods, results, implications, and limitations.
Furthermore, the investigator recommends future research concerning the ICTY’s
policies regarding forensic science.

Questions

After researching the ICTY’s policies, the researcher detected that the ICTY’s
judges amended the ICTY’s Rules of Procedure and Evidence to incorporate Rules 92bis
in December 2000. Rule 92bis provided a vehicle for either the prosecution or the
defense to establish facts either via written statements or transcripts from previous
ICTY’s proceedings to expedite the trial process. Specifically, Rule 92bis allowed the
Trial Chambers to admit written statements in lieu of oral testimony regarding the events
of a homicide. The Trial Chambers have relied on written statements regarding an
individual’s death because the witness’s testimony explains the crime’s events.

This researcher noticed that the number of forensic exhibits citations declined
compared to the total number of exhibits after 2001. This data corresponded with the
amendment to incorporate Rule 92bis. The study investigated if a correlation existed
between the amendment to the ICTY’s Rules of Procedure and Evidence to incorporate
Rule 92bis and the decline of forensic exhibits citations compared to the total number of
citations. During this investigation, the researcher expanded the study to include the
variations in both witness statements and exhibits citations in establishing a victim’s

death in pre-and post-Rule 92bis judgments.

129

This issue was explored via two main research questions. The researcher
analyzed the changes in the number of Trial Chambers’ witness citations statements prior
to and after 2001. The witness statement category was further divided into three sub-
categories: confidential witnesses, expert witrresses, and lay witness citations. The
researcher analyzed the fluctuations in frequency of Trial Chambers’ citations prior to
and after 2001 in each of these sub-categories. These four categories were formulated
into null hypotheses for statistical analysis.

The researcher also investigated the fluctuations in frequency of Trial Chambers’
exhibit citations prior to and after 2001. The exhibit statement category was further
divided into three sub-categories: confidential exhibits, forensic exhibits, and non-
forensic exhibits. Moreover, in order to analyze the crux of the main hypothesis, the
researcher compared the fluctuations in the number of confidential Rule 92bis statements
and Rule 92bis statements in pre-and post-Rule 92bis judgments. Each of these five
categories was formulated into null hypotheses. Overall, nine null hypotheses were
drafted for statistical analysis.

Methods

The researcher analyzed thirteen cases related to homicide between 1997 and
2004. After reading the cases, the researcher recorded the methods the ICTY Trial
Chambers used to establish a victim’s death. After this process, the researcher tallied
number of citations and analyzed each type of witness statements or exhibit via two
avenues.

Two types of mathematical analysis were used in this study. In regards to the

relative frequency analysis, the researcher calculated the percentage of citations for the

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six types of evidence, confidential witnesses, expert witnesses, lay witnesses, confidential
exhibits, forensic exhibits, and non-forensic exhibits, in relation to the total number of
citations for each year. (Bennett, Briggs & Triola 2001, pp. 97-150) These percentages
were compared to determine the exact increase or decrease of the Trial Chambers’
citations by year.

The researcher also calculated the percentage of citations in three distinct time
periods for each type of evidence. These percentages were compared to determine the
exact increase or decrease of the Trial Chambers’ citations within three distinct time
periods: 1997-2000, 2001, and 2002-2004. (Bennett, Briggs & Triola 2001, pp. 97-150)
These three time categories represented pre-Rule 92bis, a transition year, and post-Rule
92bis opinions. These classifications were critical because it re-evaluates the data in
relation to the ICTY’s Rules of Procedure and Evidence amendment. This perspective
determined if a fluctuation occurred in the Trial Chambers’ citations before and after
Rule 92bis.

The researcher also performed nonparametric statistical analysis because the
small sample size. The Mann-Whitney U test was performed because this statistical test
compares two independent samples. (Bachman & Paternoster 1997, pp. 535-540) In this
study, the Mann-Whitney U test was applicable because the researcher compared the
number of Trial Chambers’ citations before and after the amendment to the ICTY’s Rules
of Procedure and Evidence to incorporate Rule 92bis.

Results
The Trial Chambers favored witness testimony to establish a victim’s death

through these eight years. During the three time periods, the Trial Chambers’ citation to

witness testimony ranged from either fifty-seven percent to sixty-nine percent of the total

131

number of citations. Rule 92bis did not affect the number of witness citations because
only a ten-percent decrease in the number of witness citations existed between the 1997
and 2000 time period and between the 2002 and 2004 period. On an analytical level, this
ten-percent decrease was not statistically significant; however, this result conformed to
the researcher’s expectations because the researcher realized that the Trial Chambers
primarily relied upon witness testimony to establish a victim’s death throughout each of
the cases.

The Trial Chambers preferred particular types of witnesses in post-Rule 92bis
judgments. Within the witness category, the Trial Chambers cited confidential exhibits
the most frequently. The Trial Chambers increased the number of citations to
confidential witnesses by thirty-seven percent since Rule 92bis. Similar to the witness
category, the increase in confidential witness citations was not statistically significant.
This result conformed to the researcher’s expectations because the fluctuation in the Trial
Chambers citations regarding the overall witness category was not statistically
significant.

Lay witness testimony was the second most popular type of evidence cited by the
Trial Chambers between the 1997 and 2000 time period and between the 2002 and 2004
time period. Rule 92bis did not affect the number of lay witness citations because only a
fifteen-percent decrease existed between the 1997 and 2000 time period and the 2002 and
2004 time period. Again, similar to confidential witnesses, the decrease in Trial
Chambers citations was not statistically significant. This result conformed to the
researcher’s expectations because the fluctuation in the Trial Chambers citations

regarding the overall witness category was not statistically significant.

132

Since Rule 92bis, the Trial Chambers decreased the number of expert witness
citations. Between 1997 and 2000, expert witness citations were ranked the fourth most
popular type of evidence cited by the Trial Chambers. Expert witness citations slipped to
the least cited type of evidence in post-Rule 92bis judgments. The Trial Chambers
decreased the number of expert witness citations by eighty-one percent in post-Rule 92bis
judgments. This fluctuation was not statistically significant; however, this result
conformed to the researcher’s expectations because the fluctuation in the Trial Chambers
citations regarding the overall witness category was not statistically significant.

The Trial Chambers referenced different types of expert witness in pre-and post-
Rule 92bis judgments. Between 1997 and 2001, the Trial Chambers relied on an array of
experts, which included investigators, forensic anthropologists, forensic archeologists,
forensic pathologists, military personnel, and lawyers. In post-Rule 92bis judgments, the
Trial Chambers only referenced investigators, lawyers, and archeologists.

Since Rule 92bis, the Trial Chambers has changed their attitudes on exhibits.
First, the Trial Chambers definitely favored exhibits because they significantly increased
the number of citations to exhibits from pre-and post-Rule 9261‘s judgments. The Trial
Chambers increased the frequency of exhibit citations by twenty-three percent from pre-
and post-Rule 92bis judgments. Specifically, the Trial Chambers relied on non-forensic
exhibits because they have significant increased number of citations to non-forensic
exhibits from pre-and post-Rule 92bis judgments. The fluctuation in non-forensic
exhibits resulted in a five-hundred eighty-eight percent increased between 1997 and 2000

time period and 2002 and 2004 time period.

133

Second, the Trial Chambers decreased the number of citations to forensic
exhibits. The Trial Chambers decreased the number of forensic exhibit citations by forty-
four percent from pre-and post-Rule 92bis judgments. This fluctuation was not
statistically significant. Although the Trial Chambers increased the total number of
citations from pre-and post-Rule 92bis judgments, the Trial Chambers consistently cited
similar number of citations during three time periods. The Trial Chambers may not have
increased the number of forensic exhibit citations at a similar rate as the other forms of
evidence. This inconsistency may infer that the Trial Chambers were not relying on
forensic exhibits as heavily in post-Rule 92bis judgments as in pre-Rule 92bis judgments.

Third, similar to expert witnesses, the Trial Chambers referenced different types
of forensic exhibits in pre-and post-Rule 92bis judgments. Between 1997 and 2001, the
Trial Chambers relied on both written and visual forensic exhibits to establish a victim’s
death. In post-Rule 92bis judgments, the Trial Chambers usually referenced written
documents, which included forensic reports, death certificates, records regarding bodies,
ICTY investigator reports, and 94bis statements, rather than visual forensic exhibits.

Fourth, the Trial Chambers has dramatically increased the number of 92bis
statements citations since 2001. This rule represented an alternative route for the Trial
Chambers to admit individual testimony to establish a victim’s death. The Trial
Chambers can admit eyewitness testimony to establish death though two avenues:
directly via witness testimony and indirectly through 92bis statements. The Trial
Chambers approved of this rule and trend because the number of 92bis statement

citations increased by sixty-eight percent from pre-and post-Rule 92bis judgments.

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Finally, the Trial Chambers cited more confidential 92bis statements and 92bis
statements than forensic exhibits to establish death in post-92bis judgments. The Trial
Chamber cited thirty-eight 92bis statements while citing only thirty-six forensic exhibits
between 2002 and 2004. Although the difference between the two categories was
minimal, the increasing rate of the Trial Chambers’ reliance on 92bis statements was
remarkable. The Trial Chambers cited twenty-five more 92bis statements within a two
year time period. Furthermore, the Trial Chambers were definitely decreasing the
number of citations to forensic exhibits because the Trial Chambers cited eight fewer
exhibits between 2002 and 2004 than 2001. This trend could signify that the Trial
Chambers were placing more weight on non-forensic exhibits rather than forensic
exhibits to establish death. This observation is corroborated by the fact that the
composite increase in confidential 92bis statements and 92bis statements were
statistically significant between pre-and post-Rule 92bis judgments. In the future, the
Trial Chambers could decrease the number of citations to forensic exhibits rather than
maintaining a consistent number of citations.

Implications

Eyewitness testimony and forensic evidence have their positive attributes as well
as their downfalls. Within the justice system, both types of evidence compliment each
other. Forensic evidence corroborates eyewitness testimony in order to improve the
witness’s creditability. Although this type of evidence is expensive and unnecessary,
forensic evidence can also provide answers when eyewitness testimony may be lacking.
However, forensic evidence can never replace eyewitness testimony because expert

witnesses or forensic evidence could never fully describe the events during the trial

135

proceedings. A balance between eyewitness testimony and forensic evidence will proved
the courts with the most accurate information.

The Trial Chambers preferred eyewitness testimony either in viva voce or written
statements format from individuals involved in the conflict rather than experts or forensic
evidence to establish a victim’s death. In post-Rule 92bis judgments, Trial Chambers
citations to expert witnesses and forensic exhibits represent a small portion of the total
number of citations. The decline in Trial Chambers citations to expert witnesses and
forensic exhibits signifies an imbalance between eyewitness testimony, forensic exhibits,
and expert witnesses.

The scales of justice regarding the types of evidence to establish a victim’s death
are out of balance. Although 92bis statements may accelerate the trial process, the ICTY
may be sacrificing accurate information. This sacrifice may be extremely significant
because it may affect the Tribunal’s integrity. Eventually, this imbalance could taint the
policy justifications for this court.

Limitations

1. An ideal study would incorporate data from the ICTR and the ICTY because
the OTP in both ad hoc tribunals utilized forensic evidence in their strategies.
On the other hand, the ICTR’s current jurisprudence does not represent a
transition towards documentary evidence because the Trial Chamber is trying
to maintain oral trials.

2. In an ideal setting, this research study would be performed after the ICTY
closes. At this time period, the researcher may have the luxury of analyzing

all cases.

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The judges amended the Rules of Evidence and Procedure to promote this
new policy in December 2000; only four years have passed since this
transition. To document this trend thoroughly, a study should expand over a

longer time frame.

Recommendations for Future Research

Many opportunities arise for future research in this area. Here are a few possible

recommendations:

1.

A researcher could compile a frequency study of the types of evidence the OTP
submits in establishing a victim’s death. This study could determine the methods
the OTP favors in establishing a victim’s death.

A researcher could determine the exact differences between the Trial Chambers
citations and what type of evidence the OTP submits. This type of study could
determine exactly the type of evidence the Trial Chambers favors in justifying a
victim’s death.

A researcher could poll the various judges at the ICTY with questioners to
determine the reasons why the judges favored a particular type of evidence in
justifying a victim’s death. This study could also determine why the judges
disfavored particular types of evidence in justifying a victim’s death.

Since judges are appointed from various countries around the world, a researcher
could study if a correlation exists between the judge’s background and the type of
evidence cited in the trial judgment. This study could be extremely interesting if
a researcher could prove a correlation between the judge’s background and the

use of forensic evidence in the trial judgment.

137

APPENDICES

138

APPENDIX A

Applicable ICTY Rules of Procedure and Evidence

139

M
General Provisions
(Adopted 11 Feb 1994)

(A) A Chamber shall apply the rules of evidence set forth in this Section, and shall not be
bound by national rules of evidence. (Amended 1 Dec 2000 and 13 Dec 2000)

(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of
evidence which will best favour a fair determination of the matter before it and are
consonant with the spirit of the Statute and the general principles of law.

(C) A Chamber may admit any relevant evidence which it deems to have probative value.

(D) A Chamber may exclude evidence if its probative value is substantially outweighed
by the need to ensure a fair trial.

(E) A Chamber may request verification of the authenticity of evidence obtained out of
court.

(F) A Chamber may receive the evidence of a witness orally or, where the interests of
justice allow, in written form. (Amended 1 Dec 2000 and 13 Dec 2000)

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Rule 90
Testimony of Witnesses
(Adopted 11 Feb 1994, revised 30 Jan 1995, amended 25 July 1997, amended 17 Nov
1999, amended 1 Dec 2000 and 13 Dec 2000)

(A) Every witness shall, before giving evidence, make the following solemn declaration:
"I solemnly declare that I will speak the truth, the whole truth and nothing but the truth".

(B) A child who, in the opinion of the Chamber, does not understand the nature of a
solemn declaration, may be permitted to testify without that formality, if the Chamber is
of the opinion that the child is sufficiently mature to be able to report the facts of which
the child had knowledge and understands the duty to tell the truth. A judgment, however,
cannot be based on such testimony alone. (Revised 30 Jan 1995)

(C) A witness, other than an expert, who has not yet testified shall not be present when
the testimony of another witness is given. However, a witness who has heard the
testimony of another witness shall not for that reason alone be disqualified from
testifying.

(D) Notwithstanding paragraph (C), upon order of the Chamber, an investigator in charge
of a party’s investigation shall not be precluded from being called as a witness on the
ground that he or she has been present in the courtroom during the proceedings.
(Amended 25 July 1997, amended 1 Dec 2000 and 13 Dec 2000)

(E) A witness may object to making any statement which might tend to incriminate the
witness. The Chamber may, however, compel the witness to answer the question.
Testimony compelled in this way shall not be used as evidence in a subsequent
prosecution against the witness for any offence other than false testimony. (Revised 30
Jan 1995, amended 1 Dec 2000 and 13 Dec 2000)

(F) The Trial Chamber shall exercise control over the mode and order of interrogating
witnesses and presenting evidence so as to

(i) make the interrogation and presentation effective for the ascertainment of the truth;
and

(ii) avoid needless consumption of time.

(Amended 10 July 1998)

(G) The Trial Chamber may refuse to hear a witness whose name does not appear on the
list of witnesses compiled pursuant to Rules 73 bis (C) and 73 ter (C). (Amended 12 Apr
2001)

(H) (i) Cross-examination shall be limited to the subject-matter of the evidence-in-chief
and matters affecting the credibility of the witness and, where the witness is able to give

141

evidence relevant to the case for the cross-examining party, to the subj ect-matter of that
case.

(ii) In the cross-examination of a witness who is able to give evidence relevant to the case
for the cross-examining party, counsel shall put to that witness the nature of the case of
the party for whom that counsel appears which is in contradiction of the evidence given
by the witness.

(iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into
additional matters.

(Amended 10 July 1998, amended 17 Nov 1999)

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Rule 92 bis
Proof of Facts other than by Oral Evidence
(Adopted 1 Dec 2000 and 13 Dec 2000)
(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the
form of a written statement in lieu of oral testimony which goes to proof of a matter other
than the acts and conduct of the accused as charged in the indictment.

(i) Factors in favour of admitting evidence in the form of a written statement include but
are not limited to circumstances in which the evidence in question:

(a) is of a cumulative nature, in that other witnesses will give or have given oral
testimony of similar facts;

(b) relates to relevant historical, political or military background;

(c) consists of a general or statistical analysis of the ethnic composition of the population
in the places to which the indictment relates;

((1) concerns the impact of crimes upon victims;

(e) relates to issues of the character of the accused; or

(f) relates to factors to be taken into account in determining sentence.

(ii) Factors against admitting evidence in the form of a written statement include whether:

(a) there is an overriding public interest in the evidence in question being presented
orally;

(b) a party objecting can demonstrate that its nature and source renders it unreliable, or
that its prejudicial effect outweighs its probative value; or

(c) there are any other factors which make it appropriate for the witness to attend for
cross-examination.

(B) A written statement under this Rule shall be admissible if it attaches a declaration by
the person making the written statement that the contents of the statement are true and
correct to the best of that person’s knowledge and belief and

(i) the declaration is witnessed by:

(a) a person authorised to witness such a declaration in accordance with the law and
procedure of a State; or

(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

143

(ii) the person witnessing the declaration verifies in writing:
(a) that the person making the statement is the person identified in the said statement;

(b) that the person making the statement stated that the contents of the written statement
are, to the best of that person’s knowledge and belief, true and correct;

(c) that the person making the statement was informed that if the content of the written
statement is not true then he or she may be subject to proceedings for giving false
testimony; and

(d) the date and place of the declaration.
The declaration shall be attached to the written statement presented to the Trial Chamber.

(C) A written statement not in the form prescribed by paragraph (B) may nevertheless be
admissible if made by a person who has subsequently died, or by a person who can no
longer with reasonable diligence be traced, or by a person who is by reason of bodily or
mental condition unable to testify orally, if the Trial Chamber:

(i) is so satisfied on a balance of probabilities; and

(ii) finds from the circumstances in which the statement was made and recorded that there
are satisfactory indicia of its reliability.

(D) A Chamber may admit a transcript of evidence given by a witness in proceedings
before the Tribunal which goes to proof of a matter other than the acts and conduct of the
accused.

(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written
statement or transcript shall give fourteen days notice to the opposing party, who may
within seven days object. The Trial Chamber shall decide, after hearing the parties,
whether to admit the statement or transcript in whole or in part and whether to require the
witness to appear for cross-examination.

144

Rule 94 bis
Testimony of Expert Witnesses
(Adopted 10 July 1998)
(A) The full statement of any expert witness to be called by a party shall be disclosed
within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge.
(Amended 14 July 2000, amended 1 Dec 2000 and 13 Dec 2000, amended 13 Dec 2001)
(B) Within thirty days of disclosure of the statement of the expert witness, or such other
time prescribed by the Trial Chamber or pre-trial Judge, the opposing party shall file a
notice indicating whether:
(i) it accepts the expert witness statement; or

(ii) it wishes to cross-examine the expert witness; and

(iii) it challenges the qualifications of the witness as an expert or the relevance of all or
parts of the report and, if so, which parts

(Amended 12 Dec 2002)
(Amended 13 Dec 2001)
(C) If the opposing party accepts the statement of the expert witness, the statement may

be admitted into evidence by the Trial Chamber without calling the witness to testify in
person.

145

BIBLIOGRAPHY

146

BIBLIOGRAPHY

Table of Cases

Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 US. 579 (1993)

People v. Bolinski, 260 Cal. App. 2d 705, 67 Cal. Rptr. 347 (1968).

People v. Lipsky, 57 N.Y.2d 560, 443 N.E.2d 925, 457 N.Y.S.2d 451 (1982)
Prosecutor v. Aleksovski, ICTY Case No. IT-95-l4/1 (June 25, 1999)

Prosecutor v. Aleksovski, ICTY Case No. IT-95-14/1, Appeals Chamber Decision on
Admissibility of Evidence (February 16, 1999)

Prosecutor v. Akayesu, ICTR Case No. IT-96-4 (September 2, 1998)
Prosecutor v. Banovic, ICTY Case No. IT-02-65/1 (October 28, 2003)
Prosecutor v. Blaskic, ICTY Case No. IT-95-14 (March 3,2000).
Prosecutor v. Brdanin, ICTY Case No. IT-99-3 6-T (September 1, 2004)
Prosecutor v. Delalic et al, ICTY Case No. IT-96-21 (November 16, 2001)
Prosecutor v. Delalic et al, ICTY Case No. IT-96-21-A (February 20, 2001)
Prosecutor v. Erdemovic, ICTY Case No. IT-96-22 (November 29, 1996)
Prosecutor v. F urundzija, ICTY Case No. IT-95-1 7/1 (December 10, 1998)
Prosecutor v. Galic, ICTY Case No. IT-98-29 (December 5, 2003)
Prosecutor v. Jelisic, ICTY Case No. IT-95-10 (December 14, 1999)
Prosecutor v. Jelisic, ICTY Case No. IT-95-10-A (April 19, 2004)
Prosecutor v. Kordic and Cerkez, ICTY Case No. IT-95-14/2 (February 26, 2001)
Prosecutor v. Kmojelac, ICTY Case No. IT-97-25 (March 15, 2002)
Prosecutor v. Kmojelac, ICTY Case No. IT-97-25-A (September 17, 2003)

Prosecutor v. Krstic, ICTY Case No. IT-98-33 (August 2, 2001)

147

Prosecutor v. Krstic, ICTY Case No. IT-98-33-A (April 19, 2004)

Prosecutor v. Kunarac et al., ICTY Case No. IT-96-23 and IT-69-23/1 (February 22,
2001)

Prosecutor v. Kupreskic et al., ICTY Case No. IT-95-16 (January 14, 2000)
Prosecutor v. Kupreskic et al., ICTY Case No. IT-95-l 6-A (October 23, 2001)
Prosecutor v. Kupreskic et al., ICTY Case No. IT-95-16, Decision on Appeal by Dragon
Papic against Rulings to proceeding by Deposition (July 15, 1999)

Prosecutor v. Kvocka, ICTY Case No. IT-98-30/1 (November 2, 2001)

Prosecutor v. Musema, ICTR Case No. 96-13 (January 27, 2000)

Prosecutor v. Naletilic and Martinovic, ICTY Case No. IT-98-34 (March 31, 2003)
Prosecutor v. Nikolic, ICTY Case No. IT-94-2 (December 18, 2003)

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