New traditions at the Yugoslav War Crimes Tribunal

Like other first-time visitors to the Yugoslav War Crimes Tribunal, I was initially bemused by all the courtroom traditions and rituals. The judges dress up in resplendent black and red robes; the lawyers look like professors decked up for graduation day; registrars and bailiffs and U.N. security guards are on hand to keep order in the court. At the end of the session, everybody present is expected to bow to the judges, who solemnly bow back to the public, before exiting stage right, like actors in some Shakespeare play. During a pre-trial session last week, Ratko Mladic angered the judge by declining to rise from his seat, allegedly because of his poor health.

What makes all this ritual slightly jarring is that the court has been in existence for less than two decades. The "traditions" were all invented from scratch when the tribunal was founded in 1993, as a sop to critics who claimed that the United Nations was doing nothing, or virtually nothing, to halt the bloodshed in the former Yugoslavia. Led by Antonio Cassese of Italy, the tribunal founders borrowed copiously from various different judicial systems, merging the Anglo-Saxon adversarial tradition with the European civil law approach, which revolves around a strong "investigating magistrate."

According to Peter Robinson, a former federal prosecutor from the United States who has served as defense counsel in various high profile cases in The Hague, the hybrid system has its plusses and minuses. One of the minuses is the sheer length of the cases, which is long, even by European standards. The most obvious example is the former Serbian leader, Slobodan Milosevic, who was transferred to The Hague in June 2001. His trial began in February 2002, and was still continuing in March 2006, when it was interrupted because the death of the defendant.

"One of the reasons it takes so long is that at the end of each trial the judges issue a detailed judgment, 400 to 500 pages long," said Robinson. "In a jury trial, the judgment consists of just of one or two words, guilty or not guilty. Here the focus is on minutiae. The parties fight over every incident and fact. The scope of the cases are really broad. In the United States, you pick the worst thing someone did, and prosecute him for that. Here you prosecute them for everything."

There are other differences, too. In the Anglo-Saxon system, hearsay, meaning evidence gathered from third parties, is generally inadmissible. In the Yugoslav tribunal, it is up to the judges to decide what they will admit, and what they will exclude.

Nevertheless, says Robinson, who is now serving as a legal adviser to former Bosnian Serb leader Radovan Karadzic, the system seems to work. "The system has a lot of flaws, but they usually end up convicting people who are guilty and acquitting people who are not guilty," he told me. For more on my interview with Robinson, click on the Youtube video above.

LATEST FROM THE HAGUE: Score one for Ratko Mladic! The Yugoslav War Crimes Tribunal today denied a prosecution request to divide his trial into two, with priority being given to the Srebrenica genocide charges. The prosecutors had expressed fears that Mladic — like Milosevic before him — might not survive a lengthy trial. The court ruled that this concern was purely "speculative and unsubstantiated," and that it would impose an unfair burden on the defense, which would have to prepare for a second trial on the siege of Sarajevo and ethnic cleansing while defending Mladic on the Srebrenica counts. The former Bosnian Serb commander was adamantly opposed to the Srebrenica charges being heard separately, insisting that events there can only be understood in the context of the entire Bosnia war.

The ruling is likely to mean a further delay in the start of the combined trial, which is unlikely to get underway before next summer at the earliest.