The editors of the Peace Palace Library Newsletter are very pleased to publish an interview with Judge Alphons Orie of the International Criminal Tribunal of the Former Yugoslavia. This year, the ICTY celebrates its 20th anniversary and for this reason, it might be interesting to learn first-hand from an ‘insider’ about the Tribunal’s achievements, its failures and its possible role and contribution to the development of international criminal law.
Judge Alphons Orie (1947-) is from The Netherlands and studied law at Leiden University. He has since pursued an impressive career in the Dutch judiciary. He has many years of experience at the ICTY. He was defender of Dusko Tadić, the ICTY”s first convicted war criminal in 1999, and in 2001 he became a judge at the ICTY.
The Peace Palace Library has always closely cooperated with the ICTY to provide the necessary literature for their research.
Why did you become an international criminal lawyer?
When I was a lecturer in criminal law at Leiden University my Professor, Fred Melai, received a letter in the early 70’s from a Dutch sailor who had been convicted in England for murder. He asked whether he could serve his sentence in the Netherlands. Melai gave the letter to me to deal with that question. I then became aware of developments within the Council of Europe. They were working hard on Treaties concerning a.o. the Transfer of Proceedings and the International Validity of Foreign Judgments. That raised my interest in this field of law, the intensifying cooperation in criminal matters. Although it would still take considerable time until these and other treaties entered into force, I immediately noticed the importance for the future. I started to organise courses for students who had chosen Criminal Law and Procedure as their major. I then also considered the history of international Criminal Law, including the Tokyo and Nuremberg trials. When I later joined the Bar in The Hague, this field of law continued to have my special attention. After many extradition and mutual assistance cases, I became involved in the Tadic case before the International Criminal Tribunal Yugoslavia (ICTY) as a member of the defence team. Soon afterwards, I was appointed as a Judge of the Supreme Court of the Netherlands where I also dealt with international criminal cases. In 2001, I was elected as a judge at the ICTY.
Can you please describe what a typical day at the office is like for you? Do you have any daily routines or is every day at the ICTY different from the one before?
A typical day at present starts with a court hearing of almost 5 hours in the Mladic case, in which we hear evidence of witnesses. This may go on for five days a week. Some time is also spent on all kinds of different procedural issues. After lunch, I spend most of my time preparing for the next witness, studying and commenting on drafts of interlocutory decisions on procedural matters prepared by Chambers staff. This often requires reading evidentiary materials, such as witness statements and expert reports which are the subject of the decision. Sometimes comments are presented in writing, sometimes we discuss them among the judges, often assisted by staff members. Later when it comes to drafting of the final judgment, after having heard closing arguments by the parties, an intensive period of reading, drafting and deciding follows. Recently, I was involved in the preparation of a judgment while I was also hearing the Mladic case, which is a very busy program. Apart from this daily routine I am involved in the work of the Rules Committee or play my advisory role in relation to requests for early release of sentenced persons, which are finally decided by the President. But there are many other matters I have to deal with, including outreach activities.
When you became a judge at the ICTY, you already had some experience as a defense lawyer in the Tadic case. Did that help you to prepare for your role as a judge?
Defending in the Tadic case made me familiar with ICTY Rules of Procedure, which are unique. This, and my previous jobs, which required some knowledge of comparative criminal procedure, certainly has helped me in preparing for my present job as a judge.
That’s a difficult question. I think that the region can benefit from the work of the Tribunal in their efforts to promote peace and stability. At the same time, we are aware that judgments sometimes are received with criticism and scepticism. Especially in circles of the accused’s community and nationality, convictions are sometimes heavily criticised and acquittals welcomed without a proper analysis of what the judgments actually say. The opposing parties in the conflict may just take an opposing position for the sake of doing so: criticising acquittals and welcoming convictions. We determine individual criminal responsibility which does not always answer the question of responsibility by a state (organ) or organisations in the context of the commission of the crimes. We deal with individual accused.
Do you think that the rulings of the ICTY have given the victims a sense of justice?
Yes and no. They often feel that those responsible are rightly convicted, although they may sometimes think that the sentences are not severe enough. This is also not uncommon in domestic criminal law. For victims, often only the highest penalty would suffice and even that will not remove the pain and suffering they went through. It is more difficult when accused are acquitted. Where the victims rightly may think that there cannot be any doubt as to the harm that was done to them, they sometimes find it difficult to understand that we find an accused not guilty, that the evidence is not sufficient to convict and punish him or her. It is a basic rule that someone is innocent until proven guilty although we understand that this is sometimes disappointing for victims. Without our Judgments the victims would have felt that no justice whatsoever had been done. In the vast majority of the cases we find that there is sufficient evidence and the convicted persons serve long prison sentences up to life imprisonment.
What is the most significant change in the workings of the Tribunal, if there are any, that you experienced throughout the time you worked at the ICTY?
The work of the Tribunal has not significantly changed over the years. The aim has remained the same: to end impunity for the most serious crimes one can imagine. Leaders, whether military or civilian, should consider that they are not exempted from the course of justice. In the proceedings the emphasis has shifted somewhat from purely oral evidence, to partly written evidence. Not all witnesses appear before us and we accept written statements. And if they are called to be cross examined, their evidence in chief may just be summarised in court and read by the judges before these witnesses appear before them.
The ICTY will close its doors/will cease to exist in 2015. What do you think is the greatest contribution of the ICTY to the development of international criminal law?
Of course the law has developed considerably over the past twenty years. Where we started in, to some extent, unchartered waters we have a better compass now. The Law of Procedure had to be developed in accordance with modern standards in respect of fairness. It resulted in a hybrid system, combining elements of the common law and the civil law tradition. For the substantive law we had to apply, sometimes for the first time, provisions of the Law of The Hague. Further, the distinction between the crimes committed in armed conflict of a non national character and a national character has faded away considerably. Crimes had to be defined in further detail and the general part of the substantive law had to be developed. The classical forms of participation in the commission of crimes (ordering, aiding and abetting, co-perpetration etc.) were insufficient and the drafters of the Statute had more or less ignored the development in all domestic systems of the commission of crimes in the context of an organisation, where all participants play their role to achieve a common goal without necessarily meeting all the requirements of the classical forms of participation. It resulted in the concept of a Joint Criminal Enterprise which resembles the many concepts developed further over the last half a century in many domestic systems. It is difficult to say what is the greatest contribution, one should not forget that these developments found their way into the practice of the many international and internationalised courts that exist around the globe today.
Would you like to be a judge at another international criminal tribunal after your work at the ICTY has ended?
I have no ambitions to serve in another international criminal tribunal after my retirement from the ICTY. I will likely be in my late sixties and still am a Judge of the Residual Mechanism for the International Tribunals, which may require my attention now and then. Not to say that I will do nothing, but rather short term projects, some teaching perhaps, but not a demanding “more than full time” job any more. My grandchildren would like to see me more often.
Do have any advice for law students who are considering a career in international criminal law?
International Criminal Law has become a hype at Universities. There is no reason to avoid this subject but students should be aware that the jobs in International Courts and Tribunals are not unlimited. It would therefore be wise not to focus on International Criminal Law exclusively. A thorough knowledge of Criminal Law opens a wider horizon. Comparative Criminal Law and Procedure is not only helpful to obtain a broader understanding of the issues in the field of International Criminal Law but also opens the way to a career in domestic practice, including the law of international judicial cooperation which gains relevance and importance. Or, from the view of International Law, a broader approach of Public International Law or International Humanitarian Law gives access to other job opportunities in the field of e.g. Diplomacy and International Organizations outside the limited area of International Criminal Law.