THE HAGUE AGAINST JUSTICE

KOSTA CAVOSKI

Center for Serbian studies, Belgrade, Sep 1996.

International Criminal Tribunal Fiasco in the Case of Tribunal Prosecutor vs. Gen. Djordje Djukic

It is usual to say that a good beginning is essential for every important job. If things begin well there is a good chance that they will also end well. The start of the first important case that was presented to the International Criminal Tribunal was a complete fiasco. The case in question was that of the Tribunal Prosecutor versus Djordje Djukic. It ended disgracefully, leaving behind a sad example of serious violation of the guarantees and institutions of criminal law which are applied and respected in all civilized countries.

Illegitimate Arrest

The arrest of a person is an exceptionally serous and dangerous act with regard to elementary human rights and should therefore be carried out with utmost caution. In civilized countries it is undertaken in accordance with procedural guarantees involving an arrest warrant when there exists reasonable doubt that a crime has been carried out, or as apprehension in the line of duty during the actual perpetration of a serious crime. General Djordje Djukic was arrested by the Muslim authorities on a road that was under the protection of the Implementation Force (IFOR). Neither the court in Muslim Sarajevo nor The Hague International Criminal Tribunal (i.e. the Prosecutor) had accused, let alone suspected him of any criminal act. What is more, considering that arrest implies a legal process. He was not even arrested, but simply kidnapped in a form of highway robbery before the eyes of the IFOR.

This took place on 30 January 1996 on a road secured by IFOR. General Lieutenant Colonel Djordje Djukic, assistant Chief of Staff of Logistics of the Republika Srpska Army in the rear, Aleksa Krsmanovic, Deputy Commander of the Sarajevo-Romanija Rear Corps, and driver Radenko Todorovic, were driving along this road in mufti in a car with civilian registration plates, having first informed IFOR of their route. In view of this, the arrest of General Djordje Djukic, Colonel Aleksa Krsmanovic and Radenko Todorovic was an arbitrary act and in violation of the well-known legal institution of habeas corpus - the guarantee against arbitrary arrest. At the moment of arrest none of these persons were breaking the law, neither did there exist a valid warrant for their arrest.

Following their arrest General Djukic and Colonel Krsmanovic were illegally detained for a full six days (from 30 January to 4 February 1996) in police custody, even though the current law on criminal procedure in Muslim Sarajevo states that police custody can only last 72 hours. It was only on 6 February that they were handed a ruling on custody when the Sarajevo High Court instituted proceedings (court ruling no. Ki - 57/96) against General Djordje Djukic on the grounds of suspected war crimes against civilians. Until then General Djordje Djukic was subjected to eight days of torture and mental distress as a result of interminable interrogation, sometimes lasting for 20 hours a day. All this was done in spite of Djukic's timely warning that he was seriously ill and that he needed medical care and medication.

The Prosecutor's Gullibility and Rashness

However heinous and unforgivable this illegal and arbitrary behavior on the part of the Muslim authorities, it didn't surprise anyone. In civil and religious wars mutual hatred has provoked many worse and more dangerous crimes, particularly since the international actors in Bosnia were biased towards one side if not indifferent.

What was surprising, however, was the tendency of the International Criminal Tribunal in the Hague, and especially its prosecutor Richard Goldstone, to incorrectly apply and breach the very rules that it had instituted. From November 1993 when eleven judges were appointed and the Tribunal began to work, up to 30 January 1996 (two years and two months later), the Prosecutor's office carefully collected all available data related to war crimes on the territory of former Yugoslavia, in particular in Bosnia and Herzegovina. During this time absolutely no one marked General Djordje Djukic and Colonel Aleksa Krsmanovic as suspected war criminals, even though all sides, including the Muslim authorities in Sarajevo assisted in the collection of data and the compilation of a lists of suspects. This fact should have prescribed at the very least restraint and great caution on the part of Prosecutor Richard Goldstone when he heard that high ranking Serbian officers had been kidnapped as suspected war criminals by Muslim authorities on a road supervised by IFOR. Instead of this, the ambitious Richard Goldstone decided on 7 February to instigate proceedings against General Djordje Djukic and Colonel Aleksa Krsmanovic, thereby validating the lawlessness of the Muslims and their alleged suspicion of the two for being war criminals. He then sent his experts to Sarajevo to investigate this long awaited case. Even during talks with CSCE representatives in Vienna, Goldstone clearly stated that proof against Djukic and Krsmanovic "was serious enough to call for an investigation"(1). Hence Christian Chartier, spokesman of The Hague Tribunal was able to announce that Goldstone "had concluded that there were adequate grounds to take the Bosnian charges seriously and carry out an investigation into the possible guilt of the suspects for acts under the jurisdiction of the International Tribunal"(2).

On 12 February 1996, at the request of Prosecutor Richard Goldstone, General Djordje Djukic and Colonel Aleksa Krsmanovic were transferred to the International Tribunal prison in The Hague as suspects. This implied that in accordance with Rule 2 of the Tribunal "the Prosecutor possesses reliable information which tends to show that they may have committed a crime over which the Tribunal has jurisdiction". It is hardly necessary to say that the most important component of this sentence is the reliability of the information regarding alleged crimes committed by the suspects.

((1) Nasa Borba, 9 February 1996 according to FoNet report of 8 February 1996)

((2)Nasa Borba 8 February 1996 according to a report by Mirko Klarin, correspondent in Brussels)

The Prosecutor's Violation of the Rules of Procedure and Evidence

To his great regret, Richard Goldstone very quickly realized that the information he had received from Sarajevo was not at all reliable, and that the thirty or so officials sent to The Hague by the US Ministry of Justice at its own expense had not discovered anything of importance in the meantime. Only then did he realize that at the very beginning of the case he had made an unforgivable mistake and seriously violated the Tribunal Rules of Procedure and Evidence.

According to article 8 of the Statute of the International Tribunal of 25 May 1993, the Tribunal has concurrent jurisdiction with national courts in the pursuit of people who have seriously violated international humanitarian laws on the territory of former Yugoslavia since 1 January 1991. At the same time the primacy of the International Tribunal over national courts is stipulated. However, the practical application of such primacy occurs only if at any stage in the procedure the International Tribunal demands of the national court that it defer its competence in accordance with the Statute and its Rules of Procedure and Evidence.

Since the High Court in Sarajevo had already instituted criminal proceedings against General Djordje Djukic and Colonel Aleksa Krsmanovic under its ruling no. Ki-57/96, in order to initiate his own investigation, Prosecutor Richard Goldstone should have fist proposed to the Trial Chamber that it submit a formal demand for deferral of competence of the national court to that of the Tribunal. The Trial Chamber would then have had to adopt his proposal so that the International Tribunal could submit a formal demand to the state in question for its court to defer competence. Only then the national court deferred competence to the International Tribunal could the Prosecutor initiate an investigation and seek the transferal of the suspects to The Hague. Richard Goldstone, however, did both - he initiated investigations and transferred the suspects - without having first proposed to the Trial Chamber that a formal demand for competence deferral be made, and waited for the decision of the Chamber. This would have been followed by submission of the demand and its formal acceptance. He therefore broke Rules 9 and 10, which to him should have been inviolable.

Blackmail and Extortion of Proof

If Richard Goldstone had possessed reliable and incriminating evidence against Djukic and Krsmanovic, the disturbing realization that he had broken the Rules of the Tribunal would not have bothered him much. Since, however, there was no such proof or the hope that it would be found, Goldstone was forced to twist, distort and falsify the facts in an attempt to extract himself. In this he was generously assisted by the president of the First Trial Chamber, French judge Claude Jorda. The first step was to change the legal status of Djordje Djukic and Aleksa Krsmanovic. To do this Richard Goldstone and the responsible judges off-handedly forgot that on 13 February 1996 The Hague Tribunal spokesman, Christian Chartier, publicly announced that investigations into two high ranking officers had begun, that as suspects they had been informed that they had the right not to answer questions, the right to choose a lawyer and that they would have at their disposal a court translator. The very next day, 14 February 1996, Goldstone himself announced that Djukic and Krsmanovic had been transferred to The Hague "under suspicion that during the conflict in former Yugoslavia they had committed serious breaches of international humanitarian laws'. However, instead of this qualification, on 28 February Goldstone suddenly changed the status of the prisoners to potential witnesses, to the shock of defense lawyers, Toma Fila and Milan Vujin, who immediately stated that this was "the first time" they had heard their clients were witnesses and not suspects. (3)

((3) Nasa Borba 28 February 1996 according to a report by Mirko Klarin, correspondent in Brussels)

The real reason behind the change in the prisoners' status was due to the fact that in order to summon witnesses to The Hague it was not necessary to have either a formal demand for competence deferral by the Trial Chamber or a formal decision by the Sarajevo High Court deferring its competence to the International Tribunal According to Rule 90 bis which was subsequently added, the International Tribunal can demand, in the interest of a testimony, temporary access to detained persons Thus it turns out that Djukic and Krsmanovic were kidnapped and formally placed under criminal investigation in Sarajevo so that, handcuffed, they could be transferred to The Hague prison in order to supposedly testify. In this way the Prosecutor and the judges 'enriched' the international practice of criminal law by instituting the preventive arrest of witnesses - something unknown to any civilized criminal legislation. A witness can only be forcefully brought to court if he or she does not respond to a subpoena or excuse their absence.

If at first glance this looked like clumsy and naive sophistry, in essence and by its consequences it was diabolical subterfuge. By changing the status of the prisoners from suspects to witnesses, the Prosecutor practically "offered" General Djukic and Colonel Krsmanovic the opportunity to testify against other people in return for their own release from the charges and trial. Clearly this was a form of blackmail and extortion. The Prosecutor must have known that such "testimony" is of doubtful credibility since it is hard to believe someone who would implicate someone else in order to be absolved. What is worse is that the blackmail was substantiated by a dangerous threat: either you "sing" here in The Hague or we'll hand you back to your torturers in Muslim Sarajevo. That this was blackmail and threat was clear to the president of the Trial Chamber, Claude Jorda, who almost incredulously asked General Djukic and his lawyer - Milan Vujin and Toma Fila - a number of times whether they were aware that if Djukic did not "voluntarily" testify at The Hague he would be returned to Muslim Sarajevo where his only hope was the death sentence for alleged participation in genocide (4) to say nothing of abuse and torture in prison, something the Muslim police are accustomed and partial to.

In face of the firm refusal of General Djordje Djukic and Colonel Aleksa Krsmanovic to "cooperate" with the Prosecutor, at the beginning of May 1996 Richard Goldstone pulled another debacle move: he decided to separate the fates of the two Hague prisoners by indicting General Djukic and returning Colonel Krsmanovic to the mercy of the Muslim police and Sarajevo judiciary. This separation was difficult because both were rear officers - Djukic was assistant Chief of Staff of Logistics of the Republika Srpska army, and Krsmanovic deputy commander of the Sarajevo-Romanija rear corps. If General Djukic was charged with taking part in the bombing and destruction of Sarajevo because he supplied with food and ammunition the Sarajevo-Romanija corps that had surrounded Muslim Sarajevo, why should Colonel

((4) Nasa Borba, 1 March 1996 according to a report by Mirko Klarin, correspondent in Brussels.)

Krsmanovic, who sent thee supplies he received from Djukic to the artillery batteries on the heights around Sarajevo, not answer for the same crime? However, what was impossible from the point of view of legal logic and principles, was permissible and possible from a practical point of view, and this is the only thing that seemed to govern Richard Goldstone.

And what was this practical purpose? When the Prosecutor offered Djukic and Krsmanovic the opportunity to "cooperate" by implicating their seniors (5), their refusal would have had to be so severely punished that in the future any other person forcefully brought to "testify" at The Hague would have had in mind their example and been aware there was no choice but to cooperate. This is why Krsmanovic was immediately returned to Sarajevo, even though the Prosecutor and judges knew very well the danger their untried witness, against whom they could bring absolutely no charges, no matter how great their desire to do so, would be exposed to. Richard Goldstone issued a bill of indictment against General Djordje Djukic with the intention of punishing him in a likewise manner for refusing to "cooperate". Thus he offered the Tribunal its first big opportunity to bring to trial a high ranking officer of the Serbian army. Perhaps he hoped that this indictment along with the serious state of Djukic's health would force Djukic to give in and "sing". Goldstone was not at all worried by the cruel abuse of Djukic's serious state of health since all means are allowed in the carrying out of international justice.

((5)In a conversation with Tribunal President Antonio Cassese. one of the attorneys asked if President Radovan Karadzic and General Ratko Mladic were who they had in mind. Cassese answered that they needed to go much-higher as if he were sure who was above Karadzic and Mladic.)

Illegal Indictment

The act of issuing a bill of indictment against General Djordje Djukic in itself was a new and serious violation of the Rules of Procedure and Evidence. In the surprising change of Djukic's and Krsmanovic's status from suspects to witnesses, Richard Goldstone tacitly admitted that the Rules had been seriously violated since there had been no previous institution of competence deferral procedures. Therefore, it could be assumed that the same mistake would not be made again. It has already been sad that investigations against General Djordje Djukic and his detention in prison had been set in motion by ruling no. Ki-57/96 by the High Court in Sarajevo of 6 February. This meant that criminal proceedings before the court of the Muslim-Croat Federation had been instigated. Under such circumstances, especially as he did not possess any proof, the Tribunal Prosecutor was not in the position to directly press charges against Djukic To do this he first had to propose to the Trial Chamber that it submit a formal demand for deferral of competence. Only when the High Court in Sarajevo delivered its decision to defer its competence to the jurisdiction of the International Tribunal would Richard Goldstone have had the authority to issue a bill of indictment.

However, he once again broke Rules 9 and 10 of the Tribunal and did just this without the Sarajevo High Court deferring competence to the International Tribunal, or indeed the International Tribunal taking over jurisdiction of this case. To make matters worse, Goldstone was supported by Justice Adolphus Godwin Karibi-Whyte, who accepted the bill of indictment and signed the arrest warrant fully aware that formal take-over of jurisdiction had not taken place. Once again it was made clear that neither the Prosecutor nor certain of the judges afforded minimum respect to the Rules that should have been-the backbone of their work.

Aside from formal default the indictment against Djukic had inadmissible material shortcomings - Djukic's responsibility was neither specified nor backed by any reliable evidence. It was stated that General Djordje Djukic, in his capacity as assistant Chief of Staff of Logistics, was responsible for the following duties: rear area supplies to all units of the Bosnian Serb army; recommendations for all cadre appointments; issuance of orders related to the delivery of supplies for the Bosnian Serb army units, regulation of rear area transfers; decisions on the procurement and use of materials and technical equipment from the Bosnian Serb army warehouses. Furthermore,"Djordje Djukic, in agreement with others, planned, prepared or aided the actions and operations of the Bosnian Serb army and its allies", which included the bombing of civilian buildings. This bombing lasted from May 1992 until December 1995. During this time "the Bosnian Serb armed forces in Sarajevo deliberately, arbitrarily and on a widespread and systematic basis, bombed civilian targets that were of no military importance in order to kill, wound, terrorize and demoralize the civilian population of Sarajevo".

Hence, by supplying the entire Republika Srpska army, Djukic was directly responsible for the, war crimes committed. This indictment however, did not provide sufficient evidence on the basis of which a causal relationship could have been established between the deeds of the accused and their consequences that were qualified as war crimes. Instead of this there was an attempt to "prove" that General Djordje Djukic, as assistant Chief of Staff of Logistics was directly responsible for all operations on the front surrounding Sarajevo.

Special attention should be paid to the fact that the Prosecutor did not submit the exact dates of the shelling during the given period. This would have lent support to the presumed causal relationship between Djordje Djukic's acts and their consequences - the wounding, killing, and terrorizing of the civilian population. The Prosecutor did not do this knowing that throughout the period in question, Djordje Djukic's poor state of health had resulted in his extended absence from work for treatment in the Military Medical Academy hospital in Belgrade. In fact, had the exact dates of the bombing been specified Djukic would have had the perfect alibi - reliable proof that on the days in question he was undergoing serious medical treatment instead of planning and preparing the crimes he was allegedly responsible for.

Such incomplete and inexact charges could be used as an indictment against thousands of other Serbian soldiers simply by introducing their personal information and stressing their strict liability for actions in any area of the front. This, of course, could only happen if strict liability were an accepted concept within the criminal law of the International Tribunal in The Hague. However, this is something long discarded in civilized countries.

The evidence collected by the prosecutor was the weakest aspect in the indictment against General Djordje Djukic. It was based on an overview of the organizational structure of the civil and military authority in Republika Srpska and the internal organization of certain political parties, including that of Arkan (Zeljko Raznjatovic). It consisted of information related only to General Djukic, in particular the way in which he assumed his position in the Republika Srpska army and his official duties and obligations. Especially surprising is the fact that this indictment included data on Radovan Karadzic. President of Republika Srpska, and General Ratko Mladic, Commander of the Republika Srpska army, and their alleged activities (despite the fact that Richard Goldstone had already charged the two separately). In all likelihood this was an attempt on the part of Richard Goldstone to implicate General Djordje Djukic merely because he belonged to the same military organization as Radovan Karadzic and Ratko Mladic. A tabular schedule of the alleged bombing of civilian targets and population was provided with no reference to who drew up this schedule (it could have been done by a journalist on the basis of newspaper reports), or how reliable the data were.

On the basis of such unconvincing and totally undetermined evidence, Richard Goldstone detained and indicted Djordje Djukic of alleged actions that could have resulted in life imprisonment He thereby made it clear that the Bosnian Serbs came under a special legal category subject to the rule of the Queen of Hearts from Alice in Wonderland: "Sentence first - verdict afterwards".

Professional Defeat Portrayed As "Victory of Humanism"

The Prosecutor knew very well that the offered "facts" were no sort of proof of Djukic's individual responsibility, but he hoped that by the time the case (which was constantly postponed) came to court either something convincing would be found,or the accused, in his poor state of health would agree to "cooperate" with the Tribunal as a witness thereby more or less validating his presence at The Hague. However, when it became clear that this last hope would come to nothing, Richard Goldstone summoned the strength to make one more desperate move: he proposed the dropping of charges. Instead of publicly admitting that he had not succeeded in collecting reliable and convincing evidence, he tried to promote his own magnanimity and humanity. Despite the fact that he knew of Djukic's incurable illness from the very beginning, Goldstone only now found it necessary to inform the Tribunal that according to the in- dependent opinion of Danish doctors, Djukic was suffering from terminal cancer that had already metastased to other organs, including the spine. To save face, he ended with hoping that "the withdrawal of the indictment will not be against his right to indict the accused at some time in the future for these same offenses should the medical condition of the accused change".

Had the Prosecutor been truly prepared to face up to his own professional and human conscience, he would have had to ask himself whether the kidnapping of Djordje Djukic, his long and debnitating "interrogation" and torture in the prison in Muslim Sarajevo, as well as his indictment did not exacerbate an accelerated worsening of his already fatal state of health. Would Djordje Djukic not have lived longer had he not been exposed to such maltreatment, loss of freedom and unfounded accusation? Instead of this Richard Goldstone coldly noted that the accused probably would not survived his trial and even if he did, the progressive worsening of his health would make him almost incapable or meaningfully participating in his own defense. Under such conditions his trial would be inherently unfair.

Djukic's defense lawyers, Milan Vujin and Toma Fila, immediately opposed Richard Goldstone's proposal and his attempt to wash his hands, under the guise of humanity, of his numerous mistakes and the great harm he had done Djordje Djukic. With good reason, the defense lawyers claimed that the Prosecutor had not backed his indictment with any form of evidence of the alleged guilt of Djordje Djukic. They demanded of the Tribunal that it unconditionally free Djukic due to lack of evidence. They also warned that any other resolution would leave the shadow of suspicion of Djukic's guilt as a war criminal thereby damaging his reputation and honor

The Trial Chamber presided over by French Justice Claude Jorda immediately perceived that Richard Goldstone's proposal was not in accordance with Rule 51, which states:"The Prosecutor may withdraw an indictment without leave, at any time before its confirmation, but thereafter only with leave of thee Judge who confirmed it or, if at trial only with leave of the Trial Chamber". As no conditions are specified for the withdrawal of an indictment as for example in the case of ill health of the accused, it can be assumed that this can only be done if the grounds for indictment disappear. This implies that there was no longer any suspicion, let alone evidence, that war crimes had been committed by General Djukic. Thus the withdrawal of the indictment as proposed bp he Prosecutor, meant that it should never have been made. To indict again for the same offenses could not be done as a result of Djukic's improvement of health since conditional withdrawal of an indictment does not exist.He could only be indicted again on the basis of new, collected evidence.

Confronted by this state of affairs, the Trial Chamber tried to find a solution which would, at least temporarily, save the face of the Tribunal and its Prosecutor. Citing Rule 65 on provisional release, it decided to free Djukic from detention due to his poor state of health and the lack of proper medical care in the prison, leaving the indictment in force. However, this was a breach of the Rules of Procedure and Evidence that were passed by the Tribunal itself. Paragraph (B) of Rule 65 states that a detained person can be temporarily released "only in exceptional circumstances, after hearing the representatives of the host country", i.e. Holland, and possibly of the Yugoslav Federal Republic where Djukic traveled to on his release. In a feverish rush to find a way out of this worrying and humiliating position, thee Trial Chamber conveniently forgot this important stipulation, and gave no hearing to either Dutch or Yugoslav government representatives. Thereby Djukic's case ended as it began - by flagrant and shameful breach of the rules that are laid down in civilized criminal procedures. There only remained for the Appeals Chamber to rule on the Prosecutor's appeal and the complaint lodged by the defense lawyers who persistently demanded that the case be closed with a meritorious, and not procedural, verdict - meaning that Djordje Djukic be freed on lack of evidence which would preserve his reputation. Despite their professional and moral defeat, the Prosecutor and judges at The Hague at least had the satisfaction of knowing that they had shortened the life (6) of General Djordje Djukic by speeding up his death - like the riders of the Apocalypse. Djukic's death came very fast. Already on 18 May 1996, General Djordje Djukic silently passed away.

((6) "Doctor Slobodan Ivkovic, who looked after Djordje Djukic during his last days, said that 'inadequate treatment and therapy during his time in prison and hospital brought on a sudden deterioration in the General's health' and added that General Djukic received salted, greasy food which 'third and fourth year medicail students know that patients operated on for cancer of the pancreas must not eat'." Nasa Borba, 9 February 1996.)

The Scandalous Treatment of Col. Aleksa Krsmanovic

No less disgraceful was the performance of The Hague Tribunal in the case of Colonel Aleksa Krsmanovic. When Richard Goldstone officially sought the extradition of this high ranking Serbian officer, he explicitly stated that evidence against him "had enough substance to initiate investigation" (7). On Krsmanovic's transfer to The Hague on 14 February 1996, he once again stated that Krsmanovic was "suspected of having committed serious violations of international humanitarian law during the conflict in former Yugoslavia".

Not even two weeks had passed before Richard Goldstone changed the status of Krsmanovic from suspect to witness in the hope of persuading him to "testify" against his superiors. To this aim he used blackmail, informing Krsmanovic that if he refused to "cooperate" he could be returned to the Muslim prison in Sarajevo. Sure of his own innocence, Krsmanovic did not give in thereby facing Richard Goldstone and the members of the Trial Chamber with a difficult choice: to let him go free, thus admitting their own defeat, or to disregard their own rules in order to carry out their threat of handing Krsmanovic over to Muslim Sarajevo. The fact that they

((7) Nasa Borba, 9 February 1996.)

held no evidence of his guilt, in spite of their tireless efforts to find some, required them to free Krsmanovic unconditionally, thus confirming his innocence. This is set out by the well-known legal principle non-bis-in-idem which does not allow the same act to be brought to trial twice. Article 10 or the International Tribunal Statute of 26 May 1993 clearly states that "no person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal". Since Krsmanovic was brought to The Hague as a suspect as soon as criminal proceedings were begun by the International Tribunal withdrawal of the charges meant that the case was closed. It also meant that Krsmanovic could not be tried for the same crime by any national court, including the High Court of Muslim Sarajevo. In short following Richard Goldstone's decision to withdraw the charges, Colonel Krsmanovic should have been set free.

Instead of this, The Hague Tribunal broke the inviolable principle of non-bis-in-idem, and returned Colonel Aleksa Krsmanovic by leased aircraft to preventive detention in Muslim Sarajevo. Encouraged by this act on the part of The Hague Tribunal Muslim Judge Izet Bazdarevic immediately announced that investigations against Krsmanovic would be continued in order to prove "whether the Colonel was guilty of crimes". (8) In answer to the objection that the proceedings had been carried out and finalized by The Hague

((8) Nasa Borba, 5 April 1996, according to a Beta/AFP report)

Tribunal, Judge Bazdarevic confidently added: "We have our laws, and The Hague its own".(9) The investigations against Colonel Krsmanovic were even ex- tended on the grounds that he had participated in crimes against prisoners of war in the area of his birthplace, Sokolac.

Had the Tribunal acted in accordance with its own Rules of Procedure and Evidence (Rule 13) it would have had to immediately send a reasoned order to the authorities of the Muslim-Croat Federation and High Court in Sarajevo requesting the court to permanently discontinue its proceedings against Colonel Aleksa Krsmanovic. Nevertheless, it remained silent. In this manner it tacitly validated the lawlessness in Muslim Sarajevo. As a result the case ended in the same disgraceful way it began. On 21 April 1996 Colonel Aleksa Krsmanovic was exchanged as a prisoner of war for Muslim prisoners of war captured by the Republika Srpska army. Thus it would seem that Colonel Krsmanovic was kidnapped after the official end of the war as a civilian in order to serve as a hostage thereby forcing the release of several Muslim soldiers that were captured during the war, all under the guise of an exchange of prisoners of war. By breaking its own Rules, whether it wanted to or not, The Hague Tribunal participated in a war crime,i.e. in covering up the taking of hostages.

The Legal Basis for the Establishment of the International Tribunal at The Hague

If the start or the case of the Prosecutor vs. Djordje Djukic disgraced the International Criminal Tribunal at The Hague, a more serious examination of the manner in which the Tribunal was founded and its working Rules of Procedure and Evidence would also convince us that the failure was not in the least accidental. Moreover, it could have been expected when the Security Council Resolution 808 of 22 February 1993 was issued. In spite of the fact that the Resolution expressed the intention to found an international tribunal for the prosecution of persons responsible for committing serious violations of international humanitarian law on the territory of the former Yugoslavia since 1991, the Security Council did not feel the need to provide a legal basis for its establishment.(10) The reason for this omission is simple: the existing legal system of the UN does not provide a legal basis for it, nor can there ever be one. Half a century has passed since the founding of the UN, and its main political and executive body, the Security Council, has never assumed the right to found a tribunal since court jurisdiction rests on international treaties as a result of the absence of a universal legislative organ. This was clearly stated by the UN Secretary General in his report no. S/25704 (section 18) of 3 May 1993 when he said: "The approach which in the normal course of events would be followed in establishing an international tribunal would be the conclusion of a treaty by which the member states would establish a tribunal and approve its statute. This treaty would be drawn up and adopted by an appropriate international body (e.g. the General Assembly or a specially convened conference), following which it would be opened for signing and ratification. Such an approach would have the advantage of allowing for a detailed examination and elaboration of all issues pertaining to the establishment of the international tribunal. It would also allow the states participating in the negotiation and conclusion of the treaty to fully exercise their sovereign will in particular whether they wish to become parties to the treaty or not".

((10)This was noted by the UN Secretary General in his report no S/25704 (section 18) of 3 May 1993)

The rule whereby court jurisdiction is based on international treaties has, until now, been strictly adhered to without exception. Then in Resolution 827 of 25 May 1993, the Security Council gave itself the right to establish ad hoc a tribunal whose competence was limited in time (beginning on 1 January 1991) as well as capacity (confined to the territory of the former Socialist Federal Republic of Yugoslavia). Since no such tribunal had ever been established before by the Security Council (11), it would have been appropriate to find some sort of legal basis in order to avoid the inference that "might is right". A legal basis was "found" in a very loose interpretation of a clause in Chapter VII of the UN Charter whereby the Security Council can take measures to maintain or restore international peace and security following the requisite establishment of the existence of a threat to the peace, breach of the peace or acts of aggression. In other words, the term "tribunal", as the requisite institution, is taken to be a "measure". No doubt the members of the Security Council, particularly the permanent members, assumed that "might was right", but also that certain terms can be instilled with certain meanings that they never had before. Thus "measures" became synonymous with "tribunal".

((11)The Statute of the International Court of Justice at The Hague is incorporated into the UN Charter and accepted as such by the member states)

The Secretary General was given the thankless task of justifying the international criminal tribunal as an enforcement measure of the Security Council which Chapter VII of the UN Charter grants it. As he was unable to refer to any valid legal basis for this authority, he reverted to the principle of expediency "This approach," said the Secretary General "would have the advantage of being expeditious and immediately effective as all states would be under a binding obligation to take whatever action is required to carry out a decision taken as an enforcement measure under Chapter VII" (12). Thus the principle of political expediency took precedence over that of legality and legal validity.

The Secretary General knew of course, that the Security Council could not simply "create" a tribunal nor did it have the legislative authority to allow it to "create" international criminal law. He let this slip when he said that "in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to 'legislate' that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law." (13) Unfortunately this is not true. With Resolution 827 of 25 May, the Security Council implemented its nonexistent legislative powers. It suspended the application of the Geneva Convention of 12 August 1949 with additional Protocols, as well as the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, whereby prosecution is entrusted to national courts. Thus, by awarding the International Tribunal primacy over the prosecution of crimes committed on the territory of the former SFR Yugoslavia, it annulled the competence of all national courts worldwide. One has to ask in the name of what principle could the Security Council suspend and then amend international treaties of a legislative nature.

((12)Report of the Secretary General no. S/25704 (see 23) of 3 May 1993)

Having assumed the right to legislate, the Security Council ventured to take another step: it delegated its nonexistent legislative competency to its creature - the International Criminal Tribunal at The Hague. Under Article 15 of the Statute of the International Tribunal it authorized its judges to adopt rules of procedure and evidence for the conduct of the pre-trial phase of proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters. In this way the Security Council not only legislated, but also authorized the Tribunal to be its own legislator with regard to criminal procedural law.

With no hesitation, the International Tribunal accepted the authority to write its own laws, ie. to issue Rules of Procedure and Evidence that were to be applied to the prosecution of subsequent cases. The Rules were adopted by February 1994, only to be amended six more times - in May and October of 1994, January and June 1995, January and April 1996. In January 1995 alone, 41 of the total 125 rules were amended, and almost half of the original rules were further changed by other amendments. To make matters even worse, the Tribunal adjusted the Rules according to which it would pass judgment, having in mind the practical problems that arose in the course of the implementation of the Rules on pending cases. Unfortunately, this was in breach of its own Rule no. 6, paragraph (C) whereby amendments shall not operate to prejudice the rights of the accused in any pending case. In this way certain amendments took on the character of ex post facto law. Of special interest is the manner in which the Tribunal amended its rules. Legislative bodies usually do this at public sessions, following long and exhaustive debates over every proposed article or subsequent amendment. The International Tribunal simplified this procedure. Its Rules are adopted at plenary sessions after the decision of seven judges, and according to Rule 6, paragraph (B) this can also be done otherwise, on condition the judges accept the amendment unanimously. One asks oneself what "other way" is there for an amendment to be adopted if not by debate at a plenary session. The answer is simple: the president or some Tribunal official posed amendment to all the judges that world-wide; on the same day they fax back their approval. This is the new way of creating laws by fax that could easily revolutionize the old-fashioned procedure that is exercised by the British Parliament.

This was how the Tribunal at The Hague used the legislative competence that was first usurped by the Security Council and subsequently generously delegated to it. To make for even greater paradox, the Tribunal took another step: having become its own legislator it then passed part of its legislative power over to the Prosecutor in order to allow him to draw up the rules he would work by. Hence Rule 37 paragraph (A) stipulates that "the Prosecutor can perform all the functions provided by the Statute in accordance with the Rules and such Regulations, consistent with the Statute and the Rules, as may be framed by him".

Antonio Cassese, President of the International Tribunal was well aware that never in the history of a civilized country had individual court drawn up the rules by which it would pass judgment. This would be a dangerous breach of the principle of separation of powers between the legislature and judiciary which, according to Montesquieu, is an essential guarantee of freedom. Thus it could be said that the adoption of the Rules of the Tribunal in May 1995 represented an enterprise "for which there is no precedent at the international level."(14) Had he been less self-confident

((14)Preface to a book publishing all the more important document of the International Criminal Tribunal at The Hague)

and egotistic in his unexpected role of being his own legislator, he would have had to ask himself very seriously if there could possibly be a valid reason for this unprecedented breach of a practice inviolable in any civilized country.

There are, of course, countries where judge made law is applied, e.g. common law in England. However this law is not the fruit of a premeditated and momentary enterprise by a single court but the product of all the courts as a unified system and over a considerable period of time, lasting several centuries. This is why English judges firmly believe that they are judging according to a law that was created by others. They do not have the satisfaction that was granted Antonio Cassese, of creating the general rules according to which they will judge.

If the International Tribunal is only partially responsible for its role as legislator with regard to the adoption of its own Rules due to the fact that this "advantage" vas delegated to it by the Security Council, it is generally responsible for its further delegation to the Prosecutor. This is also an enterprise unprecedented in recent history. Had the International Tribunal appreciated the equality of both parties, it should have gone one step further and authorized the defense counsel to prescribe its own general regulations for the defense of its client. This would also have represented a significant and unexpected innovation to modern criminal procedural law.

The Prosecutor as Organ of the Tribunal and as Privileged Party

The next feature whereby the Security Council and the International Tribunal "enriched" legal theory and practice was the exceptional position that was bestowed on the Prosecutor. In a well structured legal system, e.g. common law, the prosecutor is only one of two equal parties in a court dispute, so that with regards to the status of both sides - the prosecutor and the accused - and the possibility of their reaching a settlement, a criminal dispute assumes some of the aspects of a litigation. Under these circumstances the procedure becomes truly contradictory in that the two sides contest each other on a completely equal basis, whereas the court as a third, independent and unbiased party, resolves the litigation and passes judgment.

The Security Council and the International Tribunal discarded this concept of criminal litigation and the total equality of each party in order to award the Prosecutor a privileged position by making him a part of the court. In Article 11 of the Statute of the International Tribunal it is explicitly stated that the Prosecutor is an organ of the Tribunal. This is followed by a series of regulations that confirm this exceptional and obviously privileged status of the Prosecutor. Rule 33 stipulates that the registrar of the Tribunal serves not only the chambers and plenum of the Tribunal but every judge and the Prosecutor, meaning that the registrar is common to them all. Under Rule 29 the Prosecutor is given the right to summon and question suspects, victims and witnesses, record their statements, collect evidence and conduct on-site investigations. Again, in a well organized judiciary system this is done by the police up until an inquiry is instigated, whereupon it is taken over by the investigating judge. This is the only way to ensure the contradiction of procedure and the equality of both parties - the Prosecutor and accused.

However, the creators of the Statute and Rules of the International Tribunal made an unforgivable mistake. in one stroke they made the Prosecutor part of the Tribunal as well as a party before justice. Rule 2 names the prosecutor and accused as the parties, but then by virtue of a series of other regulations, their equality in the court proceedings comes under serious doubt. Thus, for instance, the Prosecutor, as a litigation party, may propose amendments to the Rules (Rule 6), while the accused and his defense counsel may not. Also, the Trial Chamber (Rule 46) may, after a warning, refuse audience to counsel if, in its opinion, his conduct is offensive, abusive or otherwise obstructive to the proper conduct of the proceedings. It occurred to none of the makers of these Rules to allow for the possible removal of the Prosecutor in the case of his behavior being offensive and abusive to the accused, his defense counsel or indeed the judges themselves. According to Rule 66 paragraph (C) the Prosecutor may, with the approval of the Trial Chamber, refuse the defense access to books, documents, photographs and tangible objects in his custody if this is considered to be contrary to public interest or affect the security interests of any state. The Trial Chamber debates this request in camera (in the absence of either party or the public) and the Prosecutor is obliged to give his reasons why this evidence (books, documents, photographs and tangible objects) should be confidential only to the Trial Chamber, meaning that the defense counsel does not have to be present.

The creators of this special position of the Prosecutor, who is at the same time part of the court and one of the two contesting parties, probably consider themselves to be very innovative. If they were better acquainted with the history of the Ottoman Empire they would remember that this position was held by Turkish Cadis (civil judges). That is why we have the saying: "the Cadi prosecutes you, the Cadi sentences you".

The Secrecy of the Indictment and Unauthorized Collection of Evidence

This exceptional and in many ways unacceptable, position of the Prosecutor is just one of the "innovations" by which the makers of the Statute and Rules of the International Tribunal "enriched" criminal procedural law. Another was the possibility of keeping secret the indictment trial and testimonies under conditions that spawn arbitrariness and considerable departures from the usual standards of modern procedural law. According to Rule 53 paragraph (B) the judges or the Trial Chamber can, after consulting the Prosecutor, prohibit the "disclosure of an indictment, or part thereof, or of all or any part of any particular document or information" if it is necessary "to protect confidential information obtained by the Prosecutor or is otherwise in the interests of justice". The Rule makers, however, did not deem it necessary to further define "confidential information" or "interests of justice", thereby leaving their interpretation open to the will or arbitrariness of the Prosecutor, judges and Trial Chamber.

Apart from facts, documents and information that can be concealed from the general public, there is information that can be denied the defense. This is information whose disclosure, for any reason "may be contrary to public interests or affect the security interests of any state" (Rule 66 paragraph (C)). This can be assumed to concern information collected by the CIA, and that is why such information should be kept secret in order to hide its source, and especially the manner in which it was collected. This involves unauthorized bugging and the recording of telephone conversations, fax messages, wireless messages, filming by satellites and pilotless aircraft unauthorized to overfly the war zones in the former Yugoslavia, as well as data and information collected by secret agents disguised as humanitarian workers or employees of the UN, Red Cross and other governmental and non-governmental organizations.

There is nothing unusual in the illegal collection of information by the US, British or Russian secret services. The trouble lies in the penchant of the Prosecutor and Hague Tribunal not only to use illegally obtained information, but also by denying the public knowledge of the indictment and, trial to conceal the source of the information on which the indictment, evidence and subsequent verdict rest. With the excuse of protecting public interest and/or the security interests of a state, they are no doubt capable of going so far as to refuse the defense counsel the right to study the evidence, data, documents, photographs and tangible objects on whose existence an indictment rests. Were a prosecutor in the US to try to use unauthorized recorded telephone calls against an accused, this would be momentarily rejected by the court. Unlike this civilized practice, everything was permitted to The Hague Tribunal including the use of illegally obtained intelligence data and the concealment of its source.

Masked witness

When in the dark medieval age the Inquisition wanted to protect an important witness who was ready to testify that he/she had seen a suspect communicating with the devil the witness was allowed to appear in court with a mask, or hood, over the face. This was how the court heard the "truth", and the witness was protected from the evil eye of the witch who might take revenge after being buried at the stake.

In its fervent desire to protect from the devil the victims and witnesses of war crimes in the former Yugoslavia, the makers of the Rules of Procedure and Evidence similarly undertook to disguise the identity of the victims and witnesses. Thus, according to Rule 69 "in exceptional circumstances, the Prosecutor may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such a person is brought under the protection of the Tribunal. This type of temporary concealment of a victim's or witnesses' identity can be understood, especially as paragraph (C) of this Rule stipulates that "the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defense".

What should not have been allowed under any circumstances was the permanent concealment of the identity of victims or witnesses, neither the allowing of a witness to refuse to answer a question on "grounds of confidentiality". This is foreseen in Rule 70 paragraphs (B) (C) and (D). Inasmuch as the Prosecutor obtains information given to him on condition it remains confidential he can not disclose its source without the agreement of the person or entity (15) who supplied it. This would not be so unusual if such information were not used as evidence at the trial. But the Prosecutor, with the consent of the person or representative of an entity, may decide to use documents and other material obtained in this way as evidence at the trial. In this case - and this is indeed something very new - "the Trial Chamber may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber, for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance". Still, the Prosecutor may call as a witness a person or entity that has offered confidential information, but the Trial Chamber may not compel the witness to answer any question the witness declines to answer on the grounds of confidentiality.

((15) being a state, one of its institutions or some organization)

One can ask what kind of witness gives the Prosecutor confidential information and then refuses to answer further questions as to how such information was obtained when the Trial Chamber has no right to insist. As a rule they are undercover agents who have been operating illegally in foreign countries in order to collect information that can not be obtained by regular means. They are also governmental representatives who have provided The Hague Tribunal with confidential information on condition that it conceal the source of the information as well as the manner in which it was obtained. The only remaining question is whether such "evidence" can be accepted as valid or such clandestine "witnesses" believed at all.

Another innovation that was introduced by the makers of the Rules was testimony without the obligation to appear at the trial. According to Rule 71, at the request of either party, the Trial Chamber "may, in exceptional circumstances and in the interest of justice, order a deposition be taken for use at trial and appoint for that purpose, a Presiding Officer". Naturally, it sometimes happens that an important witness, for health reasons, is unable to leave his home or hospital to attend a trial. But in such cases a hearing, under the presidency of the judge, is held in the witness' room where the witness answers the questions of the prosecution and defense. Allowing a court officer to take a deposition on his own whenever the Trial Chamber considers it to be "in the interest of justice", increases the possibility of abuse and prevents the confrontation of witnesses testifying differently about the same subject.

The greatest "innovations" introduced by the Rules was the permanent concealment of the identity of a witness, victim or anyone related to or associated with them. Under the guise of preserving privacy and protecting a witness or victim, according to Rule 75 a judge or trial chamber can, at a session in camera, take "measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him by such means as:

a) expunging names and identifying information from the Chamber's public record;

b) non-disclosure to the public of any records identifying the victim;

c) giving the testimony through image - or voice-altering devices or closed circuit television and

d) assignment of a pseudonym".

Even this was not enough for the makers of these Rules and so they added the possibility of closed sessions and appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.

Judicature without Sovereignty

There is no doubt whatsoever that the measures for the protection of a witness which the Holy Inquisition was capable of offering were a child's game compared to those provided by the Ruler of The Hague Tribunal. The Inquisition was only able to offer a frightened witness the possibility to enter the court by a side door under cover of night and with a hood over the head. Possibly, and very probably, the Inquisition would have taken the same measures as The Hague Tribunal Rules had it been able to use the technology at the disposal of The Hague judges today.

So as to understand more easily the "singularity" and also the exceptional possibilities of violation of the aforementioned measures for protecting a victim or witness, we will present a hypothetical example. Let us suppose that in an American city with disturbed and very strained inter-racial relations the sexual assault of a member of one race group by a member of another takes place. Terrified by the possible revenge of the relations and neighbors of the attacker, the victim asks the court to be allowed to testify under a pseudonym using image- and voice-altering devices. Would the American court allow this? Certainly not. And one of the reasons would be that such "testimony" would prevent a fair trial.

After such a convincing example, it is necessary to ask the following question. Why can American courts refuse this type or testimony and The Hague Tribunal accept it when both are concerned with the protection of a victim or witness from possible reprisal by the accused, his relatives or friends? The answer is surprising: the American court firmly believes that the American judicature, including the police, is capable of offering such protection. And as a rule it is, except in the rare cases of organized crime. The Hague Tribunal is well aware that it is not up to this and justifiably assumes that the so-called international community, as embodied by the Security Council, has no intention whatsoever of protecting any victim or witness from the Balkan cauldron. So, if no-one is ready to protect the victims or witnesses, then at least their identity can be hidden.

Had they taken one more step in forming this judgment. The Hague judges would have had to ask themselves whether, under such conditions, they should have taken on the job of judging at all if in order to protect victims and witnesses they had to use measures that were implemented by the Holy Inquisition. Had they any idea of the concept of sovereignty, they would have asked the Security Council how it thought they could take to court anyone if they were unable to provide the conditions necessary for the execution of judicature. When in his famous work "Leviathan" Thomas Hobbes demonstrated the essential traits of sovereignty, he included "the Right of Judicature, that is to say, of hearing and deciding all Controversies which may arise concerning Law, either Civil or Natural or concerning Fact".(16) In the execution of judicature it is most important that sovereignty provides general and complete protection of all subjects from injustice by others. Because otherwise "to every man remaineth, from the natural and necessary appetite of his own conservation, the right of protecting himself by his private strength, which is the condition of Warre, and contrary to the end for

((16)Thomas Hobbes, "Leviathan", edited by C.B. Macpherson, Harmondsworth. Penguin Books 1982, p. 234)

which every Common-wealth is instituted".(17) In other words, he who would judge and is able to do so, is sovereign; and as sovereign is bound to offer all subjects staunch protection from violence and the injustice of others. Who is unable of offering the second should not stand in judgment because he is not sovereign. The members of the Security Council, particularly the permanent members, wanted the first - to judge - without being capable of providing the second - reliable protection. This resulted in the concealment the victims' and witnesses' identities and other measures as a clumsy attempt to achieve what must be provided by a well instituted and effective sovereign power.

Due to these important failings on the part of the Security Council and The Hague Tribunal, a whole series of other unusual regulations to the ridicule and shame of this Tribunal and its founders were created. Particularly characteristic is Rule 99 which allows the arrest of a suspect who has been acquitted. Truly a contradiction! However, this contradiction came about for practical reasons. When the jury of all American court of first instance brings a verdict of non-guilt the accused leaves the court room a free man, able to go where he will. The prosecution can, of course, appeal against the first instance verdict but it can not demand that an acquitted person stay in detention until a second instance verdict is given. Sometimes the second instance court revokes the first instance verdict and demands a retrial. Since the suspect is free it may happen that he will not answer a summons by the first instance court This, however, does not cause much worry as it is assumed that the police, as an organ of sovereignty, must be capable of carrying out every court order and bringing the person in question to trial.

The judges of The Hague Tribunal know very well although they are unable to admit this publicly, that their sovereignty applies only to the court room in which they judge and the prison where witnesses suspects and the accused are held. This forced them to make these contradictory rules. In paragraph (A) of Rule 99, they stipulate that "in case of acquittal the accused shall be released immediately". Then in paragraph (B) they recant this rule by allowing the Trial Chamber, at the mere hint of the Prosecutor submitting an appeal to "issue a warrant for the arrest of the accused to take effect immediately". Thanks to this sophistry, the accused can be freed and arrested at one stroke. Had The Hague judges the ability to think logically, they would have otherwise formulated the rule applied here: the Prosecutor shall decide on the freeing or detaining of a person acquitted by a first instance Trial Chamber. Truly in the spirit of the aforesaid Ottoman proverb:"the Cadi prosecutes, and the Cadi sentences".

To those well acquainted with constitutional and criminal law the rule that allows for a witness to testify against himself is a real surprise. Modern criminal law explicitly forbids this and a witness can refuse to answer incriminating questions. For a long time this important legal guarantee has been represented by the Fifth Amendment of the US Constitution of 1787 whereby "no person .... shall be compelled in any criminal case to be a witness against himself ".

The authors of The Hague Tribunal Rules did not pay much attention to this great example and wrote Rule 90 paragraph (E) which allows for forced self-incrimination: "A witness may object to making any statement which might tend to incriminate him. 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 offense other than perjury".

It is worthwhile asking why the rule makers allowed for the forced self-incrimination of a witness if such evidence would not be used against him. They were probably presuming that war crimes are most often carried out by groups of people who, if they are forced to do so, will implicate each other. Supposing The Hague Tribunal had the opportunity of imprisoning two persons suspected of committing the same war crime without either knowing the fate of the other. One could be forced to testify against the other with the assurance that his testimony would not be used against him, and vice versa. In this way the Prosecutor can obtain evidence against them both without there formally having been any self-incrimination. To our great surprise the rule makers were very perfidious in this matter, with no concern for the fact that their resourcefulness and ingeniousness was in direct contradiction to the principle of modern criminal law that self-incrimination cannot be exacted.

Finally, the above mentioned rules contain a series of undefined concepts which allow for whimsicality and caprice. A characteristic example is given by Rule 79 which permits the exclusion of the media and public from court proceedings or part of the proceedings for the following reasons.

1. public order or morality;
2. safety, security or non-disclosure of the identity of a victim or witness, or
3. the protection of the interests of justice.

In a well founded legal system only public order and morality are considered to be valid reasons for the partial or complete exclusion of the public from court proceedings, and this only under strictly defined circumstances. The secrecy of court proceedings through concealment of the identity of a victim or witness is inadmissible, as already shown, while the "interests of justice" as a reason for the exclusion of the public, is yet another innovation whereby The Hague Tribunal "enriched" legal theory and practice. Justice is the supreme legal value and since law and judicature exist for the realization of justice, the provision of "interests of justice" as one of the reasons for the exclusion of the public was done in order to create a blanket discretionary norm which would allow the Trial Chamber to do what it wanted under the umbrella of expediency. The term was also introduced as an excuse for the taking of depositions for later use at a trial (Rule 71 paragraph A) and acceptance of evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law (Rule 93 paragraph A).

Finally, Prosecutor Richard Goldstone did not want to miss the chance of possibly using or abusing the very elastic norms containing the loose term "interests of justice". This is why he included in the regulations regarding his own power (being his own legislator), the stipulation that in certain circumstances he could grant any concessions to persons who participated in alleged offenses in order to secure their evidence in the prosecution of others (for example, by refraining from prosecuting an accomplice against in return for the testimony of the accomplice against another offender), and that this "may be appropriate in the interests of justice".(18) He hereby made it known that he would be acting on his own will and not in his official capacity, and that certain executors of alleged crimes could be acquitted in return for cooperation, ie. if they were willing to blame their accomplices. This kind of trade-off was what he called justice.

"Justice not Seen to be Done"

Justice is taken to infer a Certain type of equality, primarily an elementary equality before the law. It would appear that the members of the Security Council knew this when they introduced the following regulations into the Statute of the International Tribunal: "All persons shall be equal before the International Tribunal" (article 21, paragraph l). This kind of equality is taken to mean that all detained

((18) Regulation No. 1 of 1994, as amended 17 May 1995)

persons at The Hague have exactly the same conditions of detention and that no exceptions will be made. However, The Hague Tribunal judges believed that justice was what they thought it to be, and so they introduced into their rules a regulation allowing for important differences in the conditions of detention. According to Rule 64 "the President of the Tribunal may, on the application of a party, request modification of the conditions of detention of an accused". This is as if a Mafia boss in the US were to request of the judge responsible for trying his case that he be allowed to await trial in his own villa from where he had previously carried out his "business" on condition he pay from his own pocket a prison guard to prevent him from absconding.

However paradoxical this example may seem, this is what happened at The Hague. While the terminally ill Serb General Djordje Djukic was interned in a prison cell without adequate medical care, the Croat General Tihomir Blaskic, through his powerful patrons, made a deal with the Tribunal President that he await trial in a luxurious villa surrounded by guards paid by his "friends", instead of in prison. According to Antonio Cassese this was done in the interests of justice - the kind of "justice" whereby it is easy "to be a cardinal if your father is the pope".

There is an English saying: "Justice has not only to be done, but to be seen to be done". What could be seen at The Hague was not justice but caprice and injustice.