Expert witness in international war crimes tribunals

Abstract

The author has served as an expert witness in eight different cases tried before war crimes tribunals, involving twelve accused. Only three of the twelve accused were convicted. Seven were acquitted and two cases are still pending. The general defense strategy in such cases is to admit the crimes, but to challenge the involvement or responsibility of the accused. Identity then becomes the main issue to be proven by the prosecution. From the verdicts it appears that problems of identification were a major reason for acquittal. A closer look at the cases demonstrates that these problems were entirely due to an astounding naivety of the various prosecutors with respect to identification issues. The identification procedures used by the investigators were violating even the basic principles developed in many years of research in the area of psychology and law. This is even more shocking when it is realized how important these trials are, not only for the accused, but also for the witnesses, the victims, their relatives, their communities, and for international justice.

Since 1987 I have been asked eight times to testify in war crimes trials. The venues were, in chronological order:

• The Special Court in Jerusalem for the trial of suspects accused of crimes in the Second World War – the case against John Demjanjuk.

• The Special Dutch Court for the trial of suspects accused of crimes against humanity in the Second World War – the case against Marinus De Rijke.

• The International Criminal Tribunal for the former Yugoslavia (ICTY); five cases: against Du?ko Tadi? (IT-94-1), Vlatko Kupreskic (IT-95-16), Fatmir Limaj et al. (IT-03-66-T), Ramush Haradinaj et al. (IT-04-84), and Ljubisa Beara (IT-05-88-T).

• The International Criminal Tribunal for Rwanda (ICTR) – the case against Jérôme–Clement Bicamumpaka (ICTR 99-5-T).

In this paper I will describe some of my experiences, and try to formulate some lessons that I have learned.     

Iraq and the case for Australian war crimes trials

This article presents the case for Australian war crimes trials, following Australian participation in the invasion of Iraq and the subsequent deaths of as many as a million Iraqi civilians. It focuses on jus in bello (war crimes) rather than jus ad bellum (just war). The article sets out the argument and rationale that Australian war crimes trials are needed. Having established the necessity, the article identifies two of the principal alleged atrocities for which Australian officials should be held criminally accountable. It details Australian military support for the use of cluster bombs against civilians during the 2003 invasion, and senior Australian military commanders’ responsibility for planning and carrying out multiple purported war crimes during the attack on Fallujah in late 2004. The article recognises that, in order for Australian officials to be prosecuted under the International Criminal Court (ICC), all domestic remedies must be first exhausted. It therefore specifically addresses which Australian laws can be used, with particular emphasis on anti-terrorist legislation passed in 2002 under the Howard Government and the introduction into Australia’s domestic federal criminal legislation offences equivalent to the ICC Statute offences of genocide, crimes against humanity and war crimes. These provide the most applicable legal tools for prosecuting senior Australian officials for war crimes in Iraq.     

Emerging combatants, war crimes and the future of international humanitarian law

The purpose of this paper is to examine the traditional paradigm of international law that regulates warfare and defines criminal behavior,and examine how the emergence of new actors has changed the environmentof armed conflict. The existing paradigm takes into account state actorsand insurgents who have recognizable political goals. All such combatantshave some stake in the existing international political system and somemeans are available (military intervention, war crimes trials) to compeltheir compliance with the law. However, new categories of combatants areemerging. They are not connected to states, may have no political goalsand are difficult to reach or persuade with time-tested methods.Compelling or persuading them to better compliance with the law is essential to protect vulnerable populations from their depredations.The paper concludes by identifying some contributions that criminologistscan make toward understanding these groups and devising strategies to meetthe challenge of war crimes. Those contributions by criminologists wouldbe equally valuable in dealing with the problem of war crimes and ``traditional' combatants.     

Rethinking the war against hate crimes: A New York city perspective

Francis Allen, The Borderland of Criminal Justice: Essays in Law and Criminology Chicago: The University of Chicago Press, 1964

Francis Allen, The Crimes of Politics: Political Dimensions of Criminal Justice Cambridge: Harvard University Press, 1974

Francis Allen, Law, Intellect, and Education Ann Arbor: University of Michigan Press, 1979

Francis Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose New Haven: Yale University Press, 1981     

Crime control teams: An alternative to the conventional operational procedure of investigating crimes

Crime control teams (CCT) have been operational in Syracuse, New York, since 1968. The CCT concept of policing places the responsibility of disposing of criminal incidents on a single individual—the CCT officer assigned the initial complaint. The effectiveness of this method of crime investigation, as measured by clearance rate, is compared with the effectiveness of the conventional method in which the responsibility is shared by the patrol officer and the investigator. Specific strategies responsible for the difference in effectiveness are also discussed.     

Psychological autopsy in the investigation of serial neonaticides

While the use of psychological autopsies has at least a 50-year history in the investigation of equivocal deaths and suicides, we report a case where, after the discovery of a woman who died of natural causes, a subsequent search of her home found three deceased newborn infants. The infants were born on three separate occasions; the most recent was delivered approximately 2 weeks before the death of the mother. Using her own diaries and interviews with family and friends along with the physical autopsy and scene investigation data, we built a psychological autopsy that addressed the mother's mental state over the period of time when the infants' deaths took place. While the use of the psychological autopsy was not employed to distinguish the manner of death of the mother, it did provide explanatory power over circumstances of the crime scene and the behavioral disturbance of the mother.     

Eyes wide shut: the police investigation of safety crimes

This article reports the results of an empirical research project on the police investigation of harms caused by occupational safety crimes in Finland. It begins with a theoretical discussion of how those harms are excluded from mainstream criminal justice discourse by a range of obscuring mechanisms and the role that policing plays in maintaining and constituting a social order that marginalises safety crime. The paper uses an empirical study of safety crimes reported to the police in Finland. The study, located in a rare case of a jurisdiction in which safety crimes are the responsibility of mainstream policing agencies, will be used to explore the possibilities for stretching the legitimate parameters of criminal justice intervention. In order to do so, the analysis explores features of the ‘structural’ readiness of the state and the ‘conceptual’ readiness of police officers to criminalise those harms. The paper concludes on the value of those findings for understanding how safety crimes might be mainstreamed into policing systems more generally.     

Lessons from Srebrenica: the contributions and limitations of physical anthropology in identifying victims of war crimes

In July 1995, the town of Srebrenica fell to Bosnian-Serb forces, leaving more than 7000 Muslim men missing and presumed dead. Anthropologists participating in the identification process were faced with a unique problem: the victims appeared identical. All were adult males of a single ethnic group. Decomposition as well as the absence of antemortem (AM) medical and dental records confounded identification. As of December 1999, only 63 men had been positively identified using DNA, personal effects, and identification papers. Are current anthropological methods of sex, age, and stature estimation and AM trauma assessment sufficiently accurate to differentiate the remaining victims and aid in their identification? Comparisons of relative-reported AM information and postmortem examination records for 59 of the 63 identified individuals indicated that while all individuals were sexed correctly, only 42.4% were accurately aged and 29.4% had a stature estimate that included their reported height.     

浅论贪污贿赂犯罪侦查途径基本模式

贪污贿赂犯罪侦查途径的基本模式是检察机关在同贪污贿赂犯罪行为的长期斗争过程中,结合司法实践和理论研究所形成的基本侦查模式。这一基本模式是在对贪污、贿赂、挪用公款为主要表现的职务犯罪案件的侦查过程中,所运用的侦查途径的分析和探讨。主要包括侦查人员对案件证据的搜集、分析,采取强制措施,以及讯问犯罪嫌疑人的技巧方法等。     

Independent forensic autopsies in an armed conflict: investigation of the victims from Racak, Kosovo

In January 1999, a team of Finnish forensic experts under the mandate of the European Union (EU forensic expert team, EU-FET) performed forensic investigations in a sovereign state, in Kosovo, the Federal Republic of Yugoslavia (FRY). The team served as a neutral participant in the forensic investigation of victims of an incident at Racak, which was receiving considerable international attention. The Finnish team performed forensic autopsies, monitored forensic autopsies performed by local experts and verified findings of earlier executed autopsies. The victims had sustained varying numbers of gunshot wounds, which were established to be the cause of death. The manner of death remained undetermined by the EU-FET, because the scene investigation and the chain of custody for the bodies from the site of the incident to the autopsy were impossible to verify by the team. The events at Racak were the first of those leading to charges by the International Criminal Tribunal for the former Yugoslavia (ICTY) against the highest authorities in power in the FRY for crimes against humanity and violations of the laws or customs of war.     

Immunohistochemical investigation of ubiquitin and myoglobin in the kidney in medicolegal autopsy cases

We examined the immunohistochemical distributions of ubiquitin (Ub) and myoglobin (Mb) in human kidney tissues to assist the pathological assessment of death due to trauma. Medicolegal autopsy cases at our institute (n=138: 0-96 years of age, 105 males and 33 females) were examined. Causes of death were blunt injury (n=31), sharp injury (n=15), poisoning (n=11), drowning (n=10), fire fatalities (n=25), hypothermia (n=7), asphyxiation (n=14), hyperthermia (n=3), and natural diseases (n=22) for controls. Immunostaining of Ub and Mb was performed on the formalin-fixed paraffin-embedded kidney tissue sections. Quantitative analyses by estimating the proportion of Ub- and Mb-positive cells (%positivity) of renal tubule epithelial cells showed that the positivities for Ub and Mb were higher in subjects who died due to fire, blunt injury, sharp injury and fatal hypothermia than in other groups. The Ub-positivity correlated with the severity of airway thermal injury in fire deaths, survival time in blunt injury, and serum markers for renal failure in deaths due to sharp injury. Concomitant increases in the tubular Mb- and Ub-positivities were characteristic to deaths from injury and hypothermia. These findings suggest that Ub may serve as a sensitive indicator of the fatal influence of traumas.     

New perspectives in the legal psychiatry of cocaine-related crimes.

The legal criteria for the insanity defense as it applies to cocaine-related crimes remains elusive because of cocaine's unique spectrum of effects on human thought and action. This paper discusses the literature relevant to cocaine and forensic psychiatry/psychology, and summarizes the results of a survey of forensic psychiatrists on the topic of drug-induced psychosis. A conceptual framework is posited for the expert witness to distinguish the separable effects of cocaine on human behavior and to clarify their relationship to criminal responsibility.     

经济犯罪中诱惑侦查的应用分析与法律规制

诱惑侦查作为一项特殊的侦查手段,在经济犯罪侦查中起着十分重要的作用,成为打击走私、金融诈骗、非法经营等经济犯罪必不可少的有效侦查手段。本文拟对经济犯罪中诱惑侦查手段运用的必要性、性质、价值取向以及如何规制等问题作些肤浅的探讨和阐述,以期能抛砖引玉,引起理论界和司法者的重视。