While the pace inside the courtroom
dragged, the pace outside it was frenetic.
Keeping up with the pace meant devoting evenings, weekends, and holidays to
interviewing future witnesses, summarizing the evidence of the witness you
just finished, and preparing the direct or
cross examination of your next witness.
The judges, under intense pressure from
the U.N. Security Council to speed the
pace of trials, loathed a gap. There was
little patience from the bench for delays
caused by the regular winter fog at the
airport in Sarajevo or a witness’ pretestimony jitters at the hotel.
Ultimately, we convicted the Bosnian
general of cruel treatment — a war crime
— for failing to prevent the crimes of
the mujahedin and for failing to punish
them for their crimes. The trial left me
exhausted. But even then, I knew I had
it easy compared to colleagues working
on other cases.
The Srebrenica “Megatrial”
In June 2010, a trial chamber convicted six
military and police officials of genocide,
war crimes, and crimes against humanity
for their part in the Srebrenica genocide.
It was one in a series of what prosecutors
called “megatrials,” designed to save time
and money by trying large groups of connected defendants all in the same trial.
The magnitude of both the crime and the
case was mind-boggling. Over the course
of a few days in July 1995, Bosnian Serb
forces expelled as many as 40,000 people
from the Srebrenica enclave in far eastern
Bosnia, and killed more than 8,000 of
the men and boys who had fled from the
U.N.-protected safe haven as the attacking
forces closed in.
The men convicted at trial were mid-
Bar Exam Revisited
to-high-level military and police com-
manders involved in the expulsions and
massacres. Their trial required 425 court
days spanning more than 46 months. The
body of evidence included 5,383 exhibits
and the testimony of 329 live witnesses.
The trial transcript ran to 34,956 pages.
The judgment consumed 867 pages, pub-
lished in two volumes. Three of the men
were convicted of genocide or aiding and
abetting genocide. All were convicted of
crimes against humanity and war crimes.
They got sentences ranging from five
years to life in prison.
By the time this case made its way
to verdict, I was a prosecuting appeals
counsel. This became one of 13 appeals
I helped litigate at the ICTY. Five of the
commanders convicted at trial filed
appeals; my team was assigned to han-
dle all arguments related to one of them.
We briefed our case (we appealed his ac-
quittals for murder, something prosecu-
tors can do at the ICTY) and responded
to his appeal in a frenzy of brief-writing
in 2011, although we didn’t argue the
case until the end of 2014.
Preparing for the five-day appeal
hearing was like cramming for the bar
exam. It required mastery of both the
lengthy trial record and the hundreds
of pages of briefing submitted by both
parties. We and the other prosecution
teams subjected ourselves to hours of
“murder board” practice before our
colleagues — to make certain we were
prepared for every possible question
the bench might ask, for every pos-
sible new argument that might arise
from the other side. The result was de-
livered 14 months later in a 792-page
appeal judgment: the commander
subject to my team’s arguments was
guilty, on appeal, of aiding and abet-
ting 3,000 murders. All genocide con-
victions and sentences were largely
upheld for each man.
From the filing of the first notice of
appeal to the delivery of the appeals judgment in that case, the appellate proceedings had lasted four years, four months,
and 22 days; the war in Bosnia itself lasted just over three years and nine months.
The complexity and pace of these
cases has fostered understandable
impatience among some in the international community, who have exerted
growing pressure on the ICTY to conclude its proceedings as expeditiously
as possible and end its mandate. Both
the prosecutor and the president of
the tribunal (a judge) told the Security
Council in November that they expect
the tribunal’s final trial and appeal
judgments to be delivered this fall, in
time for the tribunal to shut its doors
for good at the end of the year. Critics
point out that this comes a bit late; back
in 2003, the ICTY reckoned it could
meet that goal by 2010.
There’s no denying that the pace and
complexity of these trials are a source of
frustration, and that there are lessons
to be learned from the conduct of trials
at the ICTY, which was the world’s first
international criminal tribunal since
World War II. That longest trial in ICTY
history I mentioned above resulted in
the full acquittal of an infamous, outspoken ultranationalist Serbian politician who returned to a hero’s welcome
in Belgrade. He’s now a candidate for
president of Serbia. Slobodan Milošević,
the ICTY’s most famous indictee, died
in prison during his case-in-chief,
49 months after his trial had started.
Certainly, even complicated criminal
cases should be conducted as efficiently
as possible without either violating the
rights of the accused or rushing justice.
A Pioneering Legacy
But there’s also no denying the ICTY’s
legacy as a pioneering institution in a
world that needs international criminal justice more than ever. As the
tribunal’s website notes, the ICTY
FOR THE FIVE-