From The Circuit To The Hague

Former Judge Patricia M. Wald was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1979. She served as chief judge of the Circuit from 1986 until 1991. She left the federal bench in 1999 to serve two years as a judge on the International Criminal Tribunal for the Former Yugoslavia.

Q: What was your role as a judge of the Chambers of the International Criminal Tribunal at The Hague, and what was the jurisdiction of the tribunal to which you were appointed in 1999.

A: The International Criminal Tribunal for the former Yugoslavia (ICTY) was set up by the U.N. in 1993 while the Bosnian war was still ongoing. The Americans were very much center stage in helping to draft the ICTY Statute and in formulating the first set of Rules. The ICTY was established to deal with war crimes, crimes against humanity, and genocides perpetrated on the territory of the former Yugoslavia, beginning in the year 1991 and continuing through Kosovo.

While I was at the Tribunal, there were 14 judges (it now has 16) who were elected by the U.N. General Assembly, no more than one from any single country. Any member country of the U.N. can put up a nominee and the General Assembly selects the judges, based largely on regional bases. The President of the Tribunal selects the judges that go into each of the three Trial Chambers and seven on the Appeals Chamber. In the last year, due to a backlog of cases, the U.N. also has authorized a corps of ad litem judges who come to sit on a few cases but are not fulltime members of the Tribunal.

Q: Why go to an international tribunal? Why weren't all these war cases handled at a national level?

A: At what national level could they have been handled? You would not expect that those states or governments that conducted the war would rush to prosecute their "homeland heroes"--the generals and national leaders who authorized or tolerated the abuses. And even if, say Bosnia, might have wanted to do so, its judicial infrastructure had been so decimated--it lost almost half of its judiciary--it was not equipped to do so. Bosnia is still not in a position to undertake the bulk of war crime prosecutions, although the push is now on by both the U.N. and the Bush Administration to get these countries to a point where they can undertake such prosecutions. The consensus, with which I agree, is that international courts are best reserved for the large, complex trials of major military and civic leaders, not the lower and middle level followers who executed their orders.

Q: How does the ICTY work, with judges from so many countries with different histories, legal systems, and languages?

A: It works, not perfectly, but I was satisfied generally at the end of my two years that it worked satisfactorily. Still, each judge must pay attention to every detail to assure that in his/her judgement things are being done fairly. I found the linguistic differences the most difficult to deal with. There are two working languages at the ICTY, French and English, but the judges and legal assistants need be fluent in only one. I, for instance, worked in a Chamber with two judges who spoke some English but whose preferred language was French. My French was rudimentary, the result of two years in public high school 40 years ago. We would often have to use legal assistants to go back and forth among us judges to assure something approaching real communication had been achieved. There is a bank of translators in the courtroom--French, English, and Bosnian/Croat, the Balkan dialect that the defendants, most witnesses and many of the defense counsel use. The need to translate all direct and cross examination back and forth between several languages makes things go considerably slower than in our own courts. Rapid fire cross examination is virtually impossible.

Different cultural backgrounds of the judges and counsel create additional difficulties of communication. You may have a legal concept in English that has no parallel concept --let alone parallel words in French or Bosnian/Croat. The judges have to negotiate to the meaning they want to agree on and convey in their decisions.

Q: With all the different legal systems and nationalities, what rules did the Tribunal follow?

A: Initially, the Tribunal adopted a hybrid combination of Rules that came from the Anglo-Saxon adversarial mode of trial and from the continental Civil Code mode. It had more of ours than theirs to begin with, but that has changed somewhat over time. The ICTY Rules provide for indictments but no grand jury; the parties present their cases, but the judges have more leeway to ask questions and to call for their own witnesses and evidence; hearsay is allowed more freely than in our courts; there is a reasonable double standard, but a guilty verdict may be had by majority vote (2-3); the defendant may either take the stand as a regular defense witness or make a statement not under oath and not subject to cross examination. A variety of nonlive testimony, transcripts, depositions, written witness statements, which would not be allowed at home, can come in.

Q: Are there differences in sentencing?

A: Sentencing is quite different at the ICTY from the federal courts here. First of all, there is no death penalty. The Tribunal has basically a system of indeterminate sentencing up to life. The statute does tell the judges to "look to the practice of the courts of the former Yugoslavia" for guidance but that is advisory only. It also says that sentences should be based on the gravity of the offense, though mitigating and aggravating circumstances can be taken into consideration (It doesn't indicate what they are). There is nothing comparable to our sentencing guidelines, which I think are much too rigid, but which do give guidance. I think there ought to be some norms or presumptive ranges to limit sentencing. Actually the judges do look at the sentences other panels have laid down, but it is still quite individualistic.

Surprisingly, the sentence is rendered at the same time as the verdict. That means any material the parties want to submit about sentencing must come in during the trial. Thus the defense counsel must ride two horses: "My client didn't do this, but even if he did, he deserves leniency because he is a good man." That's a pretty stiff burden for defense counsel.

Q: What was your caseload like at the ICTY?

A: Well, the trials were huge and very complex. They lasted the whole two years I was there. We heard them in tandem--three weeks on one, then a few weeks on the other, and so forth. One of the trials involving the massacre of thousands of young Muslim men in one week in July 1995 was especially complicated because most of the proof was in hundreds of intercepted communiqués by one field army from another, and in the testimony of hundreds of victim witnesses. The other trial involved five prison officials at one of the most horrendous prison camps-- Omarska--set up by the Bosnian Serbs to incarcerate the men in captured towns for interrogation. The inmates were half-starved and subjected to a terrible regime of beatings, abuses, and atrocities.

I also sat on six to seven appeals, including the first reversal of the convictions of three Bosnian Croats for lack of reliable evidence.

Also, as a judge, you have to confirm indictments because there is no grand jury; the Rules require that a judge review all the supporting material the prosecutor is relying on to make out a prima facie case. Often you have to review a room full of material in a day or two.>

Q: What about the toll a war crime trial takes on you?

A: Your human instincts don't go away-they shouldn't. You inevitably feel compassion or empathy for victims you believe. But at some point your judicial instincts take over and you start thinking in terms of evidence, credibility, opportunity for observation --the same as in trials in domestic courts. I did hear some horrible things, but like a doctor who deals with tragic illnesses, you do the best you can to sort the real story out. You function as a judge, not a counselor or therapist.

Q: When you left the U.S. Court of Appeals for the District of Columbia Circuit, Judge Abner J. Mikva called you "the model of the good judge." What, in your opinion, makes a good judge?

A: Those were very kind words. I think what goes into a good judge is, first of all, a full and accurate knowledge of what the facts are in the case before her; she needs that in order to identify what are the issues that have to be decided and what are the limits to what she can decide. Most of us are skeptical of the notion of using a case as a vehicle for giving our views on the world at large or even some area of the law if it isn't necessary to decide the case.

A good judge also has to look hard at what are the restraints that the law--statute, precedent, or Constitution--impose on her options. In the case of statutes, my views on the permissibility and wisdom of looking at legislative history to see what the drafters were about are well known. But when some part of a law has not been interpreted before and its text or history doesn't give a clear answer to what it means, the judge has to exercise judgement. That's both the most challenging and the most anxiety-ridden part of the job. (The same goes for Constitutional cases.) If you have legitimate discretion to go one way or another, you try and reckon what the consequences will be both in the immediate case and in other cases that may come up and fall under the same law. Then, of course, respect for ones' colleagues and for the lawyers and witnesses who come before you is critical.

Q: You left the federal Judiciary in November 1999, after more than 20 years of service. Since that time, 17 appellate and district judges have either resigned or retired from the bench. What does this record number of losses say about the job of a federal judge today?

A: I enjoyed both my judicial career in the D.C. Circuit and my few years at the Hague. I was lucky--the D.C. Circuit docket had many regulatory cases, but they were always interesting and usually important. I enjoyed discovering what issues were crucial in different fields-especially the environmental cases-and what processes gave rise to the issues. The caseload was never so high as to be overwhelming, as happened in some other circuits. There was always time to consider our cases thoroughly. We had the best and the brightest law clerks working for us. And though at times I had differences with my colleagues, the level of intellect and dedication on the Circuit was uniformly high. You had worthy intellectual opponents. I can't remember being bored in the whole 20 years.

But I can understand why someone might leave the bench if they are at a point in their lives where they have children to send to college. Two kids in college can eat up the whole judicial salary. The judicial salary hasn't even begun to catch up with educational costs, but that's an old story.

There is also a time--this was my incentive to leave--when you realize you have only a limited number of years in which to pursue any new or different endeavor, and a little bit of the adventure or Pilgrim spirit rises to the surface. You want to try one more thing that's exciting and worthwhile before you quit. That was why I went to the Hague and, though I miss the judging life, I'm not sorry.