Marko Divac Öberg is a Legal Officer in Chambers at the ICTY.The opinions expressed here are made in individual capacity and do not necessarily correspond to those of the Tribunal, or the United Nations in general.
The drafting of international criminal trial judgments remains largely shrouded in mystery. There is almost no academic literature on the topic. Of course, the secrecy of deliberations should be respected. However, it takes skill to make a high quality product. Skills need to be learned and it is hard to learn from mystery, so it is worth giving this issue some systematic thought.
Drafting an international criminal trial judgment is a dangerously difficult task. The cases are often very complex. The parties tend to err on the side of tendering more evidence than needed, and in the heat of the action the judges are rarely in a position to deny admission to all the evidence that later turns out to be irrelevant or redundant. Witness testimony and documentary evidence accumulate, at times quite rapidly, for many months if not years. For instance, the trial phase of the Prlić et al. case lasted over four years. The witness transcripts and documentary evidence can easily add up to tens of thousands of pages. In the Popović et al. case, the evidence comprised more than 58,000 exhibit pages and 34,000 transcript pages of trial hearings.
When finally all the evidence has been received, the accused – who are presumed innocent – have often spent years in detention. They are entitled to an expeditious trial, so there is no time to lose before issuing the trial judgment. However, the judges need sufficient time to recall and deliberate on the massive amounts of evidence received over a long period. They also need time to prepare a reasoned, written judgment. In the Nyiramasuhuko et al. case, more than two and a half years passed between the close of evidence and the issuing of the trial judgment.
In addition, trial judgments must be built to withstand intense scrutiny on appeal. Their reasoning must be transparent enough that the appellants and the Appeals Chamber can understand it. A trial judgment must also be able to convince the Appeals Chamber that the trial judges based their decisions on the entire body of evidence without disregarding any clearly relevant evidence. This contributes to the trend of ever more voluminous trial judgments. Among recent complex cases, the Gotovina et al. trial judgment numbered nearly 1,400 pages, the Nyiramasuhuko et al. trial judgment surpassed 1,500 pages, and the Milutinović et al. trial judgment amounted to more than 1,700 pages. The Charles Taylor trial judgment broke all records at more than 2,500 pages. Even in the ICC’s relatively uncomplicated Lubanga Dyilo case the trial judgment covered more than 600 pages.
With limited time to accomplish the daunting task of drafting a trial judgment, it is no surprise that Trial Chambers have sometimes been criticized on appeal for how they handled the evidence. They have been faulted for misunderstanding certain evidence, over-looking relevant evidence, not properly basing their findings in the evidence and the indictment, not making adequate findings, reaching contradictory findings in different sections of the judgment, and more. In the Kordić and Čerkez case, for instance, the Appeals Chamber noted that the presentation of a vast amount of detailed evidence had apparently hindered the Trial Chamber from focusing on the evidence underlying the crimes charged, and that in most cases it had not made specific explicit factual findings with regard to each element of the crimes (Appeal Judgment, §§ 383-384). In that case a considerable number of findings were overturned on appeal.
What can the trial judges do to avoid drowning in the sea of evidence? I submit that from day one of the trial the judges need to get their legal assistants working on processing the huge amounts of evidence into something that can serve as a basis for drafting the trial judgment. The judges are simply too busy listening to witnesses, reading evidence and dealing with motions and procedural matters to be in a position to do this. There is nothing shocking about delegating the processing of evidence to legal assistants. It is not premature judgment drafting and delegated decision-making before all the evidence is in. It is simply laying the ground-work for better judgment drafting and decision-making. The goal is to be as ready as possible at the close of evidence, when the intense period of judgment drafting begins.
Furthermore, I believe it is dangerous for the judges to base their decisions of guilt or innocence solely or even primarily on their general overview of the case after years of receiving evidence. The guilt or innocence of an accused often hinges, at least in part, on certain details in the evidence. Who can reliably remember such details a few years later, especially if a clear picture only emerges when comparing specific pieces of evidence received many months apart? Instead, I suggest that judges ought to base their decisions on the careful ground-work of their legal assistants, which should provide them with a reliable overview of the relevant evidence, placed in the proper context. The judges should make a number of findings, in a logical order, working their way up towards the final question of guilt or innocence. This system does not inappropriately place judicial power in the hands of legal assistants. The judges can check that the overview of the evidence is correct. The separation between the overview of the evidence and the findings also allows the judges to remain fully in control of the latter. Thus, in the face of overwhelming amounts of evidence, this system actually ensures that the judges can properly exercise their judicial powers.
What then is the best way of processing the evidence so as to lay the solid foundations that the judges need to reach their decisions without overlooking or misinterpreting any evidence? There are many opinions on this among practitioners. Is evidence-management software a new way forward or a trap for the gullible? Should the evidence be processed topic by topic, or witness by witness? What quality control system should be put in place? What type of coordination is required between drafters of different sections? Etc. These questions may seem technical, but they are crucial to the fair and well-considered outcome of trial judgments. As such they deserve debate.
I have tried to launch that debate in an article recently published in the Criminal Law Forum, on processing evidence and drafting judgments in international criminal trial chambers. The first half of the article is mostly for an academic audience, and the second half mostly for practitioners. I know from many discussions on the topic that everyone will find something to disagree with in the article. Hopefully, we can learn from each other and contribute to improved practices. Any comments would be much appreciated.