Patricia Wald Seventh Interview

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May 6, 2003
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. It is the seventh interview of the Honorable Patricia
M. Wald, former member of the U.S. Court of Appeals for the District of Columbia Circuit. The
Interviewer is Stephen J. Pollak. The interview took place at Shea & Gardner, 1800
Massachusetts Avenue, N.W., in the District of Columbia on Tuesday, May 6, 2003, at 3:00 p.m.
Mr. Pollak: The Society is grateful for your doing this. I went and checked the
record and the last interview you gave was on December 7, 1998. Could you run over briefly
your activities and experiences since that time. I believe you left the circuit court in 1999.
Judge Wald: Yes. I left the circuit at the beginning of November 1999, and was
appointed by the Secretary General of the UN to fill out the unexpired term of Judge Gabriel Kirk
McDonald who was then the American Representative on the International Criminal Tribunal for
the former Yugoslavia, which I will hereafter refer to as ICTY or the Hague Tribunal. So I went
over there literally a couple of days after finishing up my last sitting which would have been the
October sitting of the D.C. Circuit. I went over there in November and began about November
15
th
. The term was two years, and I came back in November of 2001. Since then I have been
doing a variety of things. I’m the Chair of the Open Society Institute Justice Initiative, which is a
newly formed part of the Open Society Institute, otherwise known as the Soros Foundation. Our
part deals exclusively with legal programs abroad, not U.S. programs, the rule of law, human
rights, freedom of information, anti-corruption, a few other things. I’ve also been doing an
arbitration, and I’m still doing some work with CEELI (ABA’s Central & Eastern Europe Law
Initiative), making a variety of public appearances, speeches, and doing some writing.
Mr. Pollak: Pat, when you say “we” and the Soros Foundation, is this a board, is
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this a staff position? What is it?
Judge Wald: I’m the chairperson of a separate board. We have our own
international board which is made up of about 12 members from all over the world. We operate
basically on a budget. The money is provided by Soros through the Open Society Institute,
although we’ll have projects in conjunction with other foundations, sharing the money. I’d say
the best way to characterize it would be a working chair. I have an office with the OSI, D.C.
office here and I spend probably about 60 percent of my time on this activity.
Mr. Pollak: I see. For two years, you were a judge on the ICTY. You returned
home. You took this board spot. You’ve taken an arbitration. You’ve made speeches. Did your
service on the court finish in November 2001?
Judge Wald: The service on the ICTY?
Mr. Pollak: Yes.
Judge Wald: Yes.
Mr. Pollak: From that time to this you have not been serving as a judge other than
this one arbitration?
Judge Wald: Yes. That’s not really a judge or at least not in my parlance. Yes, as
you know, Steve, I had to formally retire from the circuit court in order to go overseas and when
that term was up, that was the end of judging.
Mr. Pollak: Since we haven’t spoken on this oral history since your leaving the
bench in November 1999, what was your reaction to leaving the circuit bench?
Judge Wald: Well, I was quite excited about the opportunity to go onto the War
Crimes tribunal so I’d say that I didn’t spend much time in being nostalgic about my departure. I
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had a very pleasant series of parties and receptions that the court and friends gave and it was very
nice to have people say nice things about you, but I was really thinking much more along the lines
of what my next two years would be like than about leaving the past behind.
Mr. Pollak: Did you find that people related to you differently when you were no
longer “their judge” or their “possible judge?”
Judge Wald: There was a big time gap here. I think the opinion issued in the last
D.C. Circuit case I sat on on a Friday and I left that Sunday for the Hague, so I really wasn’t
around D.C. for two years except to come back for a week here and a week there. I really didn’t
see any difference in reactions from the people that I saw on Christmas holidays or summer
holidays, it was not the type of interaction where you are going to notice whether they relate to
you differently. But I’ve now been back a year and a half and yes, they do relate to you
differently. I mean, if you are a judge and they think potentially they might appear before you, I
think there is more of a reserve, more of a reticence, even more of an interest perhaps than when
you return to ordinary citizen life. But I’ve spent most of the time since I’ve been back among
people I knew before I went on the bench in the public interest community, so I have other roots
to draw upon.
Mr. Pollak: Do you ever wish you’d stayed as a judge?
Judge Wald: This is how I come out on that question. I am not one bit sorry that I
left the circuit to go onto the ICTY. That was a unique experience that I couldn’t have paralleled
any place else or at any other time. So there are definitely no regrets there. If I had my druthers,
would I have liked to have been able to come back and resume being a judge here after that?
Yes. I really enjoyed judging. There are two things unique about judging. One is you are
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consistently guaranteed interesting things to work on and important enough things to reach the
circuit level so that there is very little of what I call spinning of wheels which one inevitably
encounters in both the NGO world and the advocacy world in general. You know, a lot of dead
ends, a lot of things you work on that don’t work out. All of that is inevitable. Secondly, I have
to say selfishly, the support staff at the circuit court was great. I had a wonderful secretary,
Estelle Chichester, and three or four of the “best and brightest” law clerks every year. When you
make the jump into at least the areas of the law I’m concerned with now, you’re dealing with no
law clerks, only part-time secretarial help, and you have to do an awful lot of stuff for yourself
that you sometimes have forgotten that you once knew how to do but you have to relearn.
Mr. Pollak: Is there a counter-balancing feeling of freedom to act and speak in
ways that are precluded to a federal judge? Is that meaningful or not much?
Judge Wald: I don’t think it’s a huge factor at least in my case – even as a judge,
you could always speak to your intimate friends, certainly not about anything that was in the
court, but about your feelings about public affairs in general. And although you can now write
op-ed pieces which I haven’t done, I don’t think that extra freedom is a big factor, at least in my
case. I don’t feel, “Oh, boy, now I can tell everybody what I think of X, Y and Z.” I always felt I
could tell the people I cared about what I thought about X, Y and Z, assuming it had nothing do to
with court business.
Mr. Pollak: I wonder if your views have changed about the D.C. Circuit and the
federal court system as a result of being off the court and serving abroad. It may be that it is
better to come to that question after you talk about your ICTY experience.
Judge Wald: Well, I can give you an overview on it. Number one, I have to be
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honest. I haven’t read every D.C. Circuit opinion since I left. I always follow with interest cases
that are written up in the newspaper. I still have social relations with several of the judges on the
court. I’ve been over there a couple of times for lunches and attended the judicial conference, etc.
But I don’t think my views have changed as to how they should do their work. I still agree with
some of the decisions, disagree with some of them, but that was true when I was on the court. So
it’s as though it were a finite part of my life which is over. I’m now jumping to your second
question. There are not, I think, too many transportable experiences I had abroad where I said,
“Oh, gee we did it like that over there. Why don’t we do it like that here.” I think the opposite is
true. There were many things we did in the D.C. Circuit that I wished could be introduced into
the international court system. I think the only looking back view I have is that I think things by
and large worked pretty well in terms of the expedition with which the court did its work and –
Mr. Pollak: Which court are you referring to?
Judge Wald: D.C. Circuit. The support that we had from the staff in getting our
work done – I appreciate more than perhaps I did on the scene how important having access to
law clerks and having access to your own staff is in getting your own work done. But other than
that, I thought the two experiences were quite separate.
Mr. Pollak: You are now three and a half years after leaving that long service on
the federal bench. How does the federal bench look to you after being off for three and a half
years? The totality of it; its performance in the system, or do you have any different feeling than
you did when you were right in the middle of it?
Judge Wald: I don’t think it is so different if you are talking about the federal
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court system as a whole. It looks to me by and large as though it’s a pretty efficient system. I
liked certain things about it at a general level, and that is, in my experience, most of the judges
that I came into contact with had a real sense of urgency about their work and getting it done. I
think that they had certain assumptions that they had to manage their case loads and they had to
get work out which are not necessarily true in some of the other systems. I think the judges felt
that they were in charge. Now I have to stand back a little bit on that one because of recent
events, especially in the sentencing area. There’s still a significant movement to take away
discretion from judges in the sentencing area in ways I think that are sadly mistaken. So, having
watched both systems, they have different missions, and I think one has to take that into account,
and quite different problems. Still I think more than ever I’d be willing to impose more control
and more discretion in the hands of judges in the criminal law area. That of course is the only
kind of thing I dealt with abroad.
Mr. Pollak: I want to turn then to your service as judge on the ICTY. What was
the physical setting? Where did you live? Where was the court located? Were you living among
judges? Were you living out in the society? Paint the picture for us.
Judge Wald: The ICTY itself, which was set up as an ad hoc tribunal in 1993, is
in a converted insurance building which is really very unpretty, I guess is the word. I mean, there
are no pictures on the walls. There are a lot of beaver board partitions. It is not a marbled kind of
courthouse, such as the one that we have here. Nor is it anything like the Peace Palace which is
down the street in the Hague from where the ICTY is located and which houses the ICJ or the
International Court of Justice, which is the old world court under its new name. That has been
around a long time and is a permanent court. It deals only of course with cases between states,
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not with individual criminal responsibility cases. But the ICJ has a beautiful set up. It was
endowed with Carnegie funds. We used to joke walking by it. They had rose bushes. They had
black swans in a stream that wandered between its lofty buildings. They have people coming to
see it, tourists all the time. They have ming vases in the foyer. They have wood paneled
courtrooms, so it is very much in the old style, very gracious, a respect-inducing kind of locale.
Now, just up the street is the ICTY in this old converted insurance company building which is
right next to a cross street from a big convention center which has everything from jazz bands to
international crime conventions. So it is not in mid-town, but it is near a busy neighborhood and
a commercial activity street. There is nothing particularly pretty in its surroundings. We had
what we needed to work, but barely. For instance, as to my chambers, every judge only had one
room and it was probably the size of this room.
Mr. Pollak: Which is probably about maybe 15 by 12.
Judge Wald: I would say so. I had room enough for a desk. You had a computer
and some bookcases, a table like this, etc. But the secretaries were not next to you. They were on
a separate floor – you did have your own secretary – but she was with other secretaries down a
floor. The legal assistants were all together in little cubicles, at least a five-minute walk across
the building. So, it was not the same situation as in the courthouse here where I could call out to
Estelle (my old secretary) and my law clerks were in the next office, and we were all in one
chambers. If you needed to talk to or assign work to anybody, you had to call them on the
telephone or go see them. And everything was under lock and key. I always felt a little bit like a
warden. You had to carry all these keys around in order for you to get over to the part of the
building where the law assistants worked. You had to punch several buzzers and open several
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doors and in general it was much more akin to working in a high security government building I
guess, much more than a court. Now the courtrooms themselves –
Mr. Pollak: Let me ask whether the secretary and your law assistant were from the
U.S.? Were they kind of named or selected by you and did they go over there with you?
Judge Wald: You did have an opportunity to select your secretary and one law
assistant. But let me tell you, the set up of the ICTY is such that there are three parts. There’s the
prosecutor’s office, there’s a tribunal for the judges and their legal assistants and secretaries.
Then there is something called the registry. The registry is like a much, much larger
administrative office of the courts. It deals with the logistics, the filings and it also deals with
getting witnesses there. It deals with pretrial detention. It deals with the logistics of the court and
the translators and it is a big enterprise. It is not subservient to the court. It is like an equal
branch and so there is a lot of negotiating that has to go between the two branches. Technically, it
is run by UN rules, UN personnel rules. Technically, it is the registry which hires all legal
assistants and all secretaries. In reality, as in all institutions, there are informal working rules
which I was told about by my predecessor, Gabby McDonald, who brought me in on the inside of
several things. I took over her secretary, which was a good thing because her secretary spoke
fluent French and English. She was from Belgium. Since the operating languages of the tribunal
are French and English, and a lot of people don’t speak English, they speak only French, it is a
great asset to have a secretary who is fluent in both and she worked out very well. I did choose
my own legal assistant who had clerked for Steve Breyer on the Supreme Court, and before that
Guido Calabresi, Jenny Martinez who was great. She came over and she had to learn along with
me, but she is, needless to say, a quick learner, and so we formed a very close relationship – and
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still have one – that first year because we had to figure out everything that was going on by ourselves. Technically, even Jenny had to be hired by the registry, put on a list and I had to pick her
off the list. The rest of the other legal assistants were already picked by the head of the chambers
who was the senior judge. He was a Portuguese judge. The judges in the chamber to which I was
assigned spoke predominantly French, which meant in all honesty, that it was very difficult sometimes to agree on memoranda or draft decisions because while people may be able to get along
orally in two languages, when they sit down to write a memorandum in a language different from
their native tongue, it is sometimes very difficult to make it comprehensible.
Mr. Pollak: The legal words and the nuances would be very hard?
Judge Wald: That is one of the problems. But of course it’s not just a problem of
international courts, it must be a problem of all international agencies. It was, however, the first
time I worked in the middle of such a situation. You have problems on three different levels.
One is the pure language level, making sure you understand someone else’s language. The
second level comes up when you get into a specialized area like the law; there are different legal
terms in different legal cultures for the same concept, and so it is not a question of just translating
words, it is a question of translating concepts. Below that is the third level – a whole legal
culture in which certain terms carry meanings reflecting 200 years of experience. The people
who have used them all their lives know those meanings, but strangers don’t. So, it is not an easy
business. I found actually that the problems of deliberating outside the courtroom with your
colleagues that came from different cultures and spoke different languages and with dealing with
the research and memoranda of legal assistants who spoke different languages, came from
different legal cultures, were much harder than the actual courtroom work where a bank of
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translators worked at instantaneous translation and judges wore ear phones all the time and
looked at screens. It was a very high-tech courtroom and the prosecutor might be speaking in one
language asking questions. The witness was answering in Serbo-Croat. The defense counsel
might be either speaking in French or Serbo-Croat and the dialogue was going back and forth.
The translators were very good and after a while you kind of picked up the rhythm of that and you
weren’t conscious of the fact the dialogue was in three languages.
Mr. Pollak: So you were just living in English?
Judge Wald: Yes, basically. Occasionally there were disputes over translations
and that sort of thing, but you were hearing English. It was, however, a little bit disconcerting
occasionally; we talk about the trial court’s responsibility to make judgments of credibility partly
based on the demeanor of witnesses. That is a completely different process where you’ve got a
60-year old 200 lb. man on the stand speaking Serbo-Croat making gestures, etc. The voice that
comes over the earphones is a high treble, English woman’s voice doing I’m sure an excellent job
of translation, but God knows there’s no way you are ever going to know what the witness is
really saying and occasionally the tone and gestures don’t quite mesh with the translation. But, as
I say, after a while, you kind of pick up the rhythm of that. It is when you get outside the
courtroom and try to deliberate that it becomes more difficult.
Mr. Pollak: Tell me, how did you come to be named? How did it all begin?
Judge Wald: Actually, I knew about the court and had interest in it going back
several years, way back to the time it was first formed. Gabby McDonald announced she was
going to retire in the middle of her term. David Andrews was then the Counsellor of the State
Department. And David Andrews was somebody I had known way back in the Carter
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79.
administration, because he did the legislative work for EPA, and had seen since. When he was
named as Madeline Albright’s counsel, he asked me if I would swear him in. This was probably
a year before this vacancy came up, so we had some chance to renew our contacts. The second
thing that occurred was that Madeline Albright’s Special Assistant was Elaine Chakos who had
been Birch Bayh’s legislative person at the time of my confirmation going back to ‘ Then I
also had been working with CEELI, which had an adjunct organization CIJ (Coalition for
International Justice) that worked to promote the ICTY and the ICTR. Mark Ellis was very much
involved in the tribunal’s work. Mark was a very good friend and I was on the CEELI Board. So
three people actually asked me simultaneously if I would be interested in the ICTY vacancy.
Elaine ran into my husband in Fresh Fields doing grocery shopping on Sunday afternoon and said,
“Do you think Pat would be interested in that,” and Bob said, “Ask her.” Dave Andrews called
me and Mark Ellis called me. So it all sort of came together.
Mr. Pollak: That’s a great story. Did you consider anything else? Was it just one
thing that came your way and you did it?
Judge Wald: That’s right. I was very interested in this. I was excited. It was an
adventure of sorts. I believed in the court and at this point I had been on the D.C. Circuit for 20
years and I did have a certain yen to do something else before I finished out my career and there
wasn’t anything that I could think of I would like better. I was certain there wasn’t anything that
was available that I wanted to do more than this, so I immediately knew when it came up that I
wanted to do it.
Mr. Pollak: Tell me about the mechanics. Did you take an oath? Did you go be
interviewed by Kofi Annan or his predecessor?
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Judge Wald: Kofi Annan was Secretary General. David Andrews of the State
Department managed the process – this appointment is run out of State. It eventually goes over to
the White House to make sure that the White House doesn’t have any objection, but basically it is
not run through the White House. David ran it through the relevant State Department processes.
I had known Madeline since the Carter administration and she was supportive. Then they
checked in with Chuck Ruff, who was then at the White House. But it is not a presidential
appointment. It’s a UN appointment. So then I did go up for an interview with Kofi Annan,
which was very pleasant actually. I was quite impressed with him. He had several other people
in the room, but we had about a three quarters of an hour interview and that was it. Then they
announced it. It doesn’t have to be confirmed by the Senate or anything like that.
Mr. Pollak: What kinds of things was he interested in in the interview?
Judge Wald: One thing I remember talking about, which the State Department had
warned me might come up, and this is, remember, 1999, long before any more recent fissures that
have arisen between the United States and the UN or other groups. Somebody else was in the
room, one of the people from the legal division of the UN, and that person asked some kind of
question along the lines of “What do your authorities say about that?” after I gave an opinion on
something. I said, “Well, the way I look at this job, I won’t have any authority over me.” In other
words, I’m not acting as a delegate of the United States. The notion was an ICTY judge is not the
United States’ representative there to pursue its interests or take the United States’ point of view.
“ I’m there as an international judge, hopefully forwarding the law of the community of nations
which set up this court.” Kofi Annan seemed to like that answer very much.
Mr. Pollak: I don’t blame him.
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Judge Wald: I don’t remember too much else about the interview, but it was
certainly pleasant. He seemed to have done his homework and I was very much impressed by
him.
Mr. Pollak: As a judge of the U.S. Court of Appeals, authority existed in the
Constitution and the federal statutes, if it was a statutory case, in the rulings of the Supreme Court
if it had dealt with the issue, and in the precedents of your own court. Were there comparable
authorities or what authorities did you look to as a jurist that wasn’t looking to the United States
on the ICTY? You were an independent judge looking to the law of nations?
Judge Wald: Well, under the statute which set up the ICTY (actually it is the UN
resolution with a statutory form annexed to it, which sets up the jurisdiction of the court, etc.) it
says that the ICTY shall be governed by the law of war, the Geneva and the Hague Conventions
and customary international law, those kind of phrases, which while they need a lot of refinement
and application, do refer back to some specific source material. I mean, you could go into the
library and find 1,000 treatises telling you at least conceptually what customary law is and you
have treaties, you have the Geneva Convention, the Hague Conventions, which are mentioned
specifically in the ICTY statute, the Genocide Convention, etc. So there are treaties and conventions, none of these are precedents, but they are sources for finding international law. Customary
international law also consists of other kinds of documents which countries have issued or
international bodies have issued which can be shown to be obeyed by the majority of civilized
countries, etc. When it came time to actually make decisions on fine points of law, there is no
precedent as such, but we looked to everything including our own statutes and cases as well as
that on other courts, the rules of the court, on procedure and evidence which are a combination of
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common law procedures and civil procedures. Sometimes for instance to address a genocide
case, you rely very heavily on the Genocide Convention which was virtually repeated in the ICTY
statute itself. The statute itself, when I say statute, I mean the ICTY statute, does define to some
extent what crimes of war include or crimes against humanity include, what are the jurisdictional
prerequisites for those kinds of crimes. We looked very often at Nuremberg precedent, though,
again that was 50 years old. You didn’t follow it automatically. Even the ICJ, the International
Court of Justice, whereas it doesn’t deal in criminal liability, has made a lot of decisions and
certainly filled a lot of pages of paper on certain international issues which come up, for example,
the famous Nicaragua case dealing with command responsibility and effective control. Sometimes we would have issues for which there was no authority in prior cases of any international
court.
To give you an example, one of the defendants wanted to take a polygraph and have the
results introduced at trial. Certainly, there wasn’t anything in international law that would cover
this. You looked at the comparative jurisprudence of countries, not just ours, but other countries.
As it turned out in that case, the majority of countries were in the same line as the U.S., they
didn’t accept polygraph examinations. But there were some cases where doctrines we had were
not accepted by other countries. For instance, a Supreme Court case here says it doesn’t matter if
U.S. officials participate in kidnaping somebody from another country and bring him here, once
he was here the U.S. courts have jurisdiction.
Mr. Pollak: That was Eichman, wasn’t it?
Judge Wald: No. This was a Spanish name, a couple of years ago. The DEA
conspired with another country in South America to bring back somebody on drug charges and
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kidnaped and brought him back and he raised the question whether the court had jurisdiction
since he had been brought in illegally. The Supreme Court decided yes, the court had physical
jurisdiction, etc. Now, a lot of European countries don’t accept that. That was one example of
the kind of situation where certainly I never felt that when I was sitting on a case I had to rule the
way U.S. jurisprudence ruled because heaven knows I wouldn’t have wanted my fellow judges
who at the trial court were from Portugal and Egypt to feel that they had to rule the way the
Egyptian courts ruled on certain things.
Mr. Pollak: Did you serve more as a trial judge or as an appellate judge?
Judge Wald: I spent more time as a trial judge because I was basically on two
trials each of which lasted about a year – we went in and out of the two of them over the whole
two-year period, just finishing the last one a couple of weeks before I came home. We would do
several weeks on one trial and then go into the other trial. They were very long complex trials. I
can stop for a moment even though it comes later in your outline to describe them – one was the
Krstic massacre trial in which we had the Bosnian-Serb general who was just one rank below
Mladic who was still at large, Mladic being, Ratko Mladic the commander-in-chief of the
Bosnian Serbs. He and Kavadzic are the two most wanted Yugoslav indictees still at large.
Mr. Pollak: Who was the second one?
Judge Wald: Karadzic, President of the then-autonomous Serbian Republic. But
just below him was Radislav Krstic, who was the general in charge of the Bosnian-Serb army and
the whole area where all of the massacres of these 7,000-8,000 young Muslim men happened in
a single week. This particular indictment was the result of five years of investigations, including mass grave exhumations – I don’t have the numbers in front of me, but there were well over
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100 witnesses and almost 1,000 exhibits, etc., so this was a very complex trial. Krstic had lost a
leg from a land mine, not in the Srebrenica period, but before that and it was bothering him a lot,
very legitimately, so there was one period where we had to adjourn for a month while he had an
operation, remedial things done to his leg. So the other case that we went in and out of for over
the two years – we did finish both of them, brought down the judgments before I left – the other
one was five guards, and a deputy commandant at the infamous Omarska prison camp. This was
the camp exposed in the beginning when the whole Bosnian war kind of came onto the scene by a
journalist called Roy Gutman for Newsday. He brought the whole thing to the forefront and
provoked a State Department response. Many people thought he had a large role in bringing
about the establishment of the criminal court. Pictures came out of there that were accurately
compared to the World War II concentration camp pictures, etc. In this prison camp, Omarska
case, we had five defendants. If you can imagine, each one of them had two counsel which were
allowed under the rules of the tribunal. Then, you had a prosecution team of five or six lawyers
and three judges. You had three translators. You had, again, hundreds of witnesses, etc. I won’t
say it was a circus because it was run probably as well as you could run anything, given that kind
of atmosphere, but it was quite a job to try to run that. So those were the two trials.
Now what happened was there’s an appellate panel to the tribunal which is supposed to
consist of five permanent judges when I was there. I think it is seven now. What happened was
because the tribunal had already been around for several years and some of the judges who had
been trial judges had moved up to be appellate judges and would then have to disqualify
themselves on the cases that they had been involved in as trial judges, we on the trial bench were
constantly being pulled up to do the appellate work in our spare time, as it were. I ended up
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sitting on five or six appeals while I was there. On one of them I was the Chief Judge and that
was a really big appeal. Appeals are somewhat different under the rules of the tribunal and civil
rules in that new evidence is allowed on appeal. That is one thing I did not think we should
import over here, and I tried very hard to suggest that they might want to go our way and change
their rules so that if you had substantial new evidence coming in, you would have to go back to
the trial court and get it ruled on –
Mr. Pollak: Seems a reasonable procedure.
Judge Wald: This is what we have, but it’s not the procedure in many, many civil
countries. So as a result, in the particular case that we had, we had 20 different petitions for new
evidence. Some involving new witnesses. Many involved new documents. It was a very, very
intense period of about six months just getting this new evidence into the record before you got
onto the main appeal.
Mr. Pollak: You sat with two other judges, an Egyptian man and a Portuguese
man?
Judge Wald: That was on the Tribunal. Yes.
Mr. Pollak: As the trial bench. And on the appellate bench?
Judge Wald: There were basically five judges on the appeals court but because
very often one or two of them would have been disqualified and replaced by a trial judge, it
varied. The biggest appeal I had, there was a judge from China, myself, a judge from Italy, a
judge from Malaysia, and, who am I forgetting, oh, and a judge from Columbia, South America.
Mr. Pollak: You commented earlier today that in the federal system, one of the
givens is the objective of the judiciary to get the job done, to apply themselves without making
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value judgements on individuals. What was the credo of your fellow judges on the ICTY?
Judge Wald: They came from all different systems and some of them had not had
any courtroom experience before. I don’t think they had any experience to draw upon in how a
trial is run. They had been diplomats or international law academics or that sort of thing. I think
this changed and has changed now, so I limit my comments solely to my period. There did not
seem to be the same kind of “let’s get on with it now.” Although I was not a trial judge here in
the U.S., I had some sense what was going on in our district courts and I could imagine what
Judge Gerry Gesell would have thought of some of our prolonged proceedings – there was more
like, “Well, if the lawyers want to talk about this some more, let’s talk about this some more,”
and very often you yourself had the sense of okay, “We’ve had enough talk, let’s move on with
it.” But that was not always the same sense that pervaded all the judges.
Mr. Pollak: This is Side 2 of the Wald interview on May 6, 2003.
Judge Wald: There were inevitable kinds of things that demanded continuances
there which might not have here. For instance, witnesses came from all over the world. A lot of
people had been refugees and gone to other countries, settled in them. Also, the ICTY does not
have the subpoena power. There is no international subpoena power. If the court wants a witness
for the prosecution or the defense, the court will issue an order, but the only way that order gets
obeyed is, say the witness is in Australia, and we did have witnesses from all over the world,
either the witness comes voluntarily, or the country authorities where the witness is may, under
their own laws, require the witness to go the same as they would require the witness to go to one
of their own courts. There were a lot of witnesses who didn’t come at the last minute which is
not likely to happen here. In general, it seemed to me that there was a real impetus, even during
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the two years I was there, to give the judges more power. For instance, when I arrived, the rules
of the court said the judge should strongly suggest to the prosecution how many witnesses it
needed on a certain point, or the length of the testimony. Well, the incentive of prosecutors who
worked for five years on a case is to get all the evidence that they worked on in and so very often
they would just have long lines of witnesses on a point which really had been proven and the
judges did not think they had the authority to say okay, that’s enough. By the time I left, we
changed the rules so the judges could limit both the number of witnesses and the length of
testimony. So, I think things have improved.
Mr. Pollak: How did the panel of judges make rulings as a trial went along when
there was some dispute over the admissibility of evidence or some other issue?
Judge Wald: Well, it wasn’t always easy. The presiding judge who was the senior
judge, it was a Portuguese judge, sometimes would make them, but he was a generous man and
very often, most often he’d ask the two of us. We would have to huddle there and it was not easy.
The Egyptian judge really didn’t have any legal experience. The Portuguese judge had some
experience in his country. We would just do the best we could. Sometimes we would take it
under advisement and come back the next day with the ruling, but sometimes you had to make the
ruling right there. Occasionally, the presiding judge would make it himself and I might disagree.
We worked out a formula on disagreements after I got advice from another English judge or an
Australian judge, who was in a different chamber, to whom I used to go for advice who told me
that happened in his chamber a lot and what he did is simply the next day just politely say I’d like
it to be noted for the record that I don’t agree with the ruling. You just did the best you could, but
it was not always easy.
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Mr. Pollak: What was your routine? What hours did you work?
Judge Wald: In the trial court, we worked from 9:00 – 4:15 until – we had to take a
break at lunch. It usually was an hour because the prisoners were brought from the detention
center which was on the outskirts of the Hague and Screviningin and there was a big routine for
them. They were brought under guard, etc. and they had to have time to eat. It was such a routine
to get them down to the holding quarters and feed them that we all always had to take a
reasonable lengthy lunch break so they could be fed and then we would go until sometime
between 3:00 and 4:00 in the afternoon. Sometimes after that there might be special hearings on
motions, etc. The trials were five days a week, except as I say, occasionally something would
happen. Witnesses wouldn’t show up, those kinds of things. Then occasionally, we would take a
week off to catch up, if there were a lot of lengthy motions or something like that. It was during
those periods that we tried to schedule the appeals.
Mr. Pollak: I meant to ask whether Kofi Annan or the UN gave you any charge?
Did you take an oath or anything?
Judge Wald: Yes, I took an oath. The oath was something about upholding the
honor of the court, you know, deciding according to the law and conscience. It was a very
generalized oath.
Mr. Pollak: I see.
Judge Wald: I didn’t have to swear to Kofi Annan or anything.
Mr. Pollak: Was there any routine of preparation to undertake your judicial
duties?
Judge Wald: They now have training. They now have a training session of a
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week or so, maybe more, a week or two weeks for new judges coming on. But that was not so in
my time. But I have to tell you because of this chambers routine and the business that three
judges have to sit on a court, for the first month or so, I didn’t have anything to do, so the other
two judges in this chamber were finishing up a trial that of course, I had no part in, and it was
actually quite frustrating. I was sitting there and actually not doing anything for a month, so I had
plenty of time. Nobody gave me instructions, but I had a lot of time to read or to ask questions.
Mr. Pollak: Could you sit in on the court?
Judge Wald: Yes.
Mr. Pollak: And see what was going on?
Judge Wald: Yes.
Mr. Pollak: What about the anatomy of reaching a decision? You heard this long
trial. You got mountains of evidence. I take it the trials were more than a year long?
Judge Wald: Yes. They both began around March, late February or March of
2000, and one ended in late July of 2001 and the other ended in late October of 2001.
Mr. Pollak: Was there a written record?
Judge Wald: Well, this was something my law clerk – well, first of all yes. There
is a transcript of 10, 12 or 13,000 pages. Because I had never been a trial judge before I had my
little series of notebooks. I took notes, quite copious notes during the testimony of all the
witnesses, so I had something to refresh my recollection. All of the trials are televised, too. And
actually the television is sent out to parts of the Balkans that want to hear it and to other western
European stations.
Mr. Pollak: Did it make you think differently about that issue?
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Judge Wald: Well, yes, you completely forgot about the fact that it was being
televised and it didn’t make any difference. I never watched the television that came back, although there was one judge who I will not name who we found out later requested from the
registry television films of all the days of trials he’d sat on I guess to take back and show his
countrymen what was going on. I usually asked my legal assistant to come to the trial so that we
could discuss things afterwards. Since I’m somewhat of a panicky person on getting things done,
and because she was new to the country, too, although she obviously made friends among the
other legal assistants, we had a lot of time on our hands so we went out to dinner a lot together.
We decided early on that because the judgments of the tribunal, some of which I had a chance to
read in this month are like 200 pages, 300 pages long, and are done in the European style, and
especially in the Srebrenica case because we knew that the testimony was going to be
momentous, that we would have to get control of the facts early. Judgments over there are
written in several ways. One is completely by staff, surprise! surprise! The law clerk dispute is
not limited to the United States, some judgments are actually written pretty much completely by
the staff. We certainly didn’t want to do that. Others would be written by one judge who would
kind of take over the whole thing and direct it, writing some parts himself, directing the rest, but
that was fairly unusual. Very often, parts of the judgments would be divided up between
chambers and written by combinations of judge and clerk. And this is not different from what the
D.C. Circuit does in the special complex case tracks.
Mr. Pollak: Right. We went over some of that in your prior oral history.
Judge Wald: Yes. This is not so different, but we decided in the Krstic case – this
was the first full-scale genocide trial that this tribunal had had, the Rwanda tribunal of course,
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because of the nature of the Rwandan massacres, had many genocide cases early – but this would
have been the first genocide case out of the Bosnian conflict that went all the way through trial.
Several of them had had the charges dismissed. In one of the appeals I sat on, the trial court itself
dismissed the genocide court mid-term. So Jenny Martinez, who was my legal assistant, and I
decided that we would opt, it would be up to the senior judge on the panel, but we didn’t think he
would really oppose it, we would volunteer to do the facts. My notion always being that he or she
who controls the facts, not “controls,” but he or she who drafts them will be able to guide the
judgment. And we wanted to make sure there was what we thought was a really adequate
coherent statement of the facts in this case. It was not an easy case. It was not an open and shut
case because the genocide charge was based pretty much on command responsibility and what we
call the criminal enterprise doctrine. The particular general on trial was not himself on the
battlefield ordering the executions. That, if anybody, was Mladic who has not yet been
apprehended. So it was not like the Rwanda genocides where people got on the air and said,
“Kill all the Tutsis.” We knew that the facts had to be very carefully assembled, not to come to a
foregone conclusion, but to assure that you could think through what conclusion you should come
to. So, Jenny and then later on, she left after one year and I had a very excellent woman from
Australia who is still over there who replaced her, came every day to the trial and we
began together to draft the factual part early. My Australian judge friend down the hall told me
to do this. He had been there for several years. He said, “Begin writing the facts during the trial.”
I remembered Harold Greene saying that is what he did in the AT&T case. He took the transcript
home every night and began writing the facts. So, Jenny came and we began doing drafts of the
facts as we went along because it wouldn’t work to wait to the end of two years and go back to
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what witness A said 15 months ago. We were working on the facts all the way through the
couple of years. Then, as to the key legal issues based on our facts there were different people
who worked on early drafts, research-wise, on certain issues like the command responsibility
issue, or the Genocide Convention which has been very very rarely construed by an actual court.
You had the Eichmann case. You had a couple of cases in France. It is not an easy Act to
construe, and there have certainly been people writing treatises – but little actual judicial
construction. The Convention’s definition of genocide raised many, many thorny issues. Some
of the early drafts were not great that were coming in, and so there was a lot of work to do. By
the end of my first year, Jenny had left and I was working with an Australian assistant.
Mr. Pollak: What was the Australian assistant’s name?
Judge Wald: Michelle Jarvis. She worked earlier years in the prosecutor’s office
at the tribunal. She taught. She’s written a book. She is very good. She is still over there at the
prosecutor’s office. The chief legal officer was there for the chamber when I arrived. Every
chamber had a chief legal officer. He had been hired and picked by the senior trial judge, the
Portuguese judge. He was French. In turn, he had hired chamber assistants who were mostly
French, though not entirely. So, we were really dealing with a lot of legal memoranda. To make
it palatable from our point of view, Michelle and I and Jenny had to do an awful lot of reworking
and writing of our own. We also changed the whole format. For instance, the way a typical
ICTY judgment was structured was first the law – all this abstract law, almost like repeating a
hornbook, genocide consists of blah, blah. Then there would be the facts. And then there would
be a short section saying, we looked at the law and we looked at the facts and here’s the way we
come out. We did not want this to be the structure, so we fought somewhat to get the facts first
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and then the law related to those facts at each juncture.
Mr. Pollak: And you were successful?
Judge Wald: Yes. We were successful. I won’t say it’s a primer, but we were
happier with the judgment – which is still on appeal. I suppose the appeals chamber could throw
it out for all you know.
Mr. Pollak: You reported how long the trials were. How long were the written
opinions?
Judge Wald: You mean how many pages, or how long did they take?
Mr. Pollak: Both.
Judge Wald: Well, they were a couple hundred pages each. I should have brought
them along. I think the judgment in the Krstic case, which is the genocide case, must have been
300 and something pages, and the Omarska prison case must have been 200 and something pages.
One thing we tried to do, we didn’t want to make them 1,000 pages, like the recent federal
election financing case. We wanted somebody to be able to read it, sometime, that is, who cared
because obviously, an ordinary person isn’t going to read 200 pages, anyway. This was a
nuanced, complex case. You really did have to read the facts to decide. It was not primarily a
legal issue case, although there were a lot of touchy legal issues in there.
Let me give you just one or two examples relating to the genocide case. Genocide – the
definition of genocide in the Genocide Convention is certain acts, the acts were laid out. They
weren’t any problem – murder, torture, keeping people in inhumane conditions, that kind of
thing. They have to be committed with an intent to destroy a racial, religious, or ethnic group as
such. Now it sounds easy. But here, what happened was that when Srebrenica was captured by
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the Serbs, it was supposed to have been a safe enclave guarded by the Dutch UN protection forces
who were young kids. They just folded and they also had confused orders whether they could
fight back. The Bosnian-Serb army just came in and took over the town, although it was
supposed to be a safe enclave under UN protection. Two things happened. Most of the women
and children and some men, about 25 to 30,000 altogether fled to the nearest UN base at Poticari
which was on the outskirts of Srebrenica and they were just there. They didn’t know what to do.
They were trying to get into the enclave and the UN people didn’t know what to do. A separate
group led by a few tattered remnants of the Bosnian Muslim army, but mostly just civilian men,
military-age men but not members of the army, fled through the woods toward Muslim-held
territory at Tuzla. So you had these two things happening at the same time. For the 25-30,000
people that assembled in Poticari, it was terrible. There was no food. There was no water. There
was no medicine. There were random rapes and murders, all in this area where the women and
children and the 1,000 men were. So, the Serbian army comes along and they said, okay, we will
bus them out. They were very efficient. In 48 hours, they bussed 25,000 women and children out
of Serbian-held territory to the Muslim-held territory. Aside from the terrible things that
happened while they were waiting, they did bus them out. They separated all the men and a lot of
the boys and held them over separately in quite bad conditions. Meanwhile, the group that is
trying to make its way toward Muslim-held territory –
Mr. Pollak: The men who went into the woods?
Judge Wald: The men, yes. They are being ambushed, pursued, culled out under
all sorts of pretenses. People were wearing UN hats saying, “Come down. We’ll get you
protection.” They don’t have any arms or anything except for the thin layer that’s leading them,
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so thousands of them were captured within a couple of days. They were held on football fields,
held in warehouses, held in schools, etc. Under international law they should have been prisoners
of war and taken to some kind of POW camp and later exchanged, you know, that kind of thing.
They were in about nine to ten different locations. Thousands at a time were just taken out and
executed, just shot, and buried in mass graves. This all happened in a week. Well, that’s the
background. The big legal question, though, when you got down to it, is whether or not this is
genocide. Questions came up like, “Can you show an intent?” Obviously, people didn’t write
things saying, “We intend to destroy the Muslim people.” First of all, can you say that just the
population of Srebrenica – that’s only one enclave with 40,000 people in the whole BosnianMuslim territory – can you say that targeting them for destruction is intending to destroy the group.
It’s not like all the Jews in Germany. It’s a very discrete group location-wise. Then, the second
aspect of it is, “Aha, but they didn’t intend to destroy everybody. They let the women and children
go.” So, can you say the fact that they destroyed virtually every male of military and childbearingage in the area, can you say that that is destroying the group. So there were those issues, none of
which had ever been decided before.
Mr. Pollak: I would at least raise with you whether your oral history might not
include those two opinions.
Judge Wald: Yes, I’ll give you copies.1
Mr. Pollak: I think your oral history should include your reactions to being a trial
judge as compared to being an appellate judge. How do you see the difference?
1 The two opinions are: Prosecutor v. Kvocka, et. al., “Omarska and Keraterm Camp”, Case No.
IT-98-30/1-T (July 8, 2002), available at https://www.icty.org/x/cases/kvocka/tjug/en/kvotj011002e.pdf and Prosecutor v. Radislav Krstic,”Srebrenica”, Case No. IT-98-33-T (Aug. 2,
2001), at https://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf.
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Judge Wald: It’s much more difficult to be a trial judge. I think it probably takes
a different kind of temperament, although I say that I realize many excellent trial judges,
beginning with Learned Hand, went up and became excellent appellate judges, so it’s obviously
not a generalization. But I do think that the temperament of a trial judge has to be somebody
who’s sort of on the alert every minute for long periods of time, for five and six hours a day,
making sure that everything runs, there has to be a kind of an entrepreneurial or managerial
talent and a kind of a toughness and attention to detail. Appellate judges do tend, maybe from
their work, maybe from the fact they are attracted to the appellate bench, to be more cerebral in
the sense that, “Well, never mind about that little thing, what we’re worried about is this big
trend or what’s this ruling is going to do to future cases.” I think that you have to care more
about the details and running something, to get pleasure out of that as a trial judge. Now, having
said that, I will say that I don’t know if I would have liked to be a trial judge in the federal
system. I really enjoyed the variety of the appellate court. Four cases a day, 20 cases a month,
all different, as opposed to two trials and six appeals over the two-year period. I will say that I
am immensely grateful that I got assigned to the trial bench of the ICTY. For this unique
experience which only lasted two years, to sit in the trial court and to see the parade of witnesses
and to hear them tell their tales, to look at the defendants day after day, to see this piece of
history played out before you was to me much more satisfying than the appellate experience,
even though there the appellate bench, just like our appellate judges, ends up having a much
greater say on the content of the law and its interpretation. But I wouldn’t have missed the
variety of experiences, heartbreaking as some of them were, of really seeing history replayed and
seeing what the defendants were like.
One of the most vivid experiences for me was hearing first hand about the terrible
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atrocities that were committed and seeing the actual people, their full-scale human dimensions.
Let me take up the second case where we had five different defendants.
Mr. Pollak: Yes. What were the defendants like?
Judge Wald: They were much younger. They were much less educated. Krstic
was a high class, second-level government four-star general, educated in the Belgrade War
College. He had done life-long military service – actually two years after the Yugoslav war
ended, he worked with the West on the Dayton accords before he was indicted and captured. He
was an educated, relatively sophisticated person. The people we had in the Omarska case were
relatively uneducated, two hadn’t even gotten the equivalent of a high school education, they
were waiters, taxi drivers. One or two had been policemen or reserve policemen, in a tiny village,
somewhere in the mining complex in the Prejidor corridor. They were caught up in the war
situation. Only two of the five ever committed any laying-on-of-hands atrocities. One was
charged with beating prisoners in the camp and one of them had made sexual advances to women
prisoners. The other three were basically your family men who were assigned to the camp from
the police station. Their crime, again, on the criminal enterprise kind of doctrine was, they were
there and didn’t object. They were put in charge either as shift commanders or, in one case, a
deputy commander of the camp and they saw these thousands of men who were being starved,
beaten, not by them, but by other guards and other people, the interrogators. All sorts of really
terrible, terrible things they saw and didn’t do anything about them.
Mr. Pollak: How did you come out? How did the two cases come out if you can
say?
Judge Wald: They were all convicted.
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Mr. Pollak: They were. And did the judges then perform sentencing?
Judge Wald: Yes. The sentencing, let me say a few words about sentencing,
which I think deserves more attention and may be getting it now. Certainly, many of the experiences of this court will be looked at and improvements will be made and are being made in the
procedures in the new International Criminal Court. But the strange thing about sentencing was
that they didn’t have a separate stage for sentencing. It didn’t have to be done this way under the
statute. Any material that needed to be brought in by either side on sentencing had to be
presented in the main trial. It seems to me this worked mostly badly for the defense counsel who
were basically saying, “My guy didn’t do it, but, hey, if he did it, you ought to take into account
the fact that his mother died when he was young.” In fact, in the Krstic case, they refused to do
anything about sentencing – they (the defense counsel) were going to go down on their sword that
he could not be held legally responsible for what went on as to the executions, so they were not
putting in a factual case on sentencing. In the other case, they didn’t put much in much of any
thing. But that has changed in the new ICC.
Mr. Pollak: Did you evaluate the prosecution and the defense counsel as
competent and dedicated to their responsibility?
Judge Wald: The prosecution was by and large good. In the two cases I was in, I
think by happenstance, since I was put into the chamber late, they were Americans from the Civil
Rights Division who had been over there for several years. There is a whole contingent of
American prosecutors that went over early on and then stayed on, so that was always a treat for me
in the sense that I understood what they were saying. I even understood where they were coming
from. Now the main prosecutor would often have other people who performed cross- examination
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of one or two witnesses. Some were okay and some were not so okay and some of
them would speak English but they wouldn’t speak English very well so that it sometimes made
for somewhat erratic examination or cross-examination. In a few cases I think it was very hard
for the witnesses, even when the witness spoke the language, to understand. I can remember a
witness who spoke English, was Dutch, but spoke English, kept rephrasing the prosecutor’s
questions and he was right, because you couldn’t – I couldn’t understand what the prosecutor was
getting at. But by and large I think the prosecution maintained a certain high level of competence
and some were really good. Mark Harmon, who had been ten years a public defender in California
and had been in the Appellate Section of the Criminal Lands and Natural Resources Division of
the U.S. Department of Justice, was very good.
Mr. Pollak: Again as a prosecutor. And how were the defense counsel?
Judge Wald: Defense counsel were all over the place. Defense counsel, most of
them, were assigned to “indigent” defendants. Most of the defendants claimed to be indigent.
Whether they are or not is sometimes a question, but there’s really very little to check when they
are from another country. You don’t just send out and say tell us whether Joe Blow has any assets.
You’ll never hear from the local assessor or the local court over there. The defendants over there
when I was there got to choose from the list of assigned counsel and a lot of times they chose
Balkan counsel, obviously because they would understand the language. I would have to evaluate
counsel pretty much through the translator because counsel would be speaking Balkan. Now a few
of them were excellent lawyers. There was a Canadian over there who taught in France and had
written a textbook, O’Sullivan, Eugene O’Sullivan, he was very good. I don’t know if he
represented by assignment. A few defendants pay for their own counsel. Some of the counsel I
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saw on appeal were like keystone cops. They really didn’t know what was up. There
were a few English barristers on appeal who were very good. But I must tell you, in the Omarska
trial, we worried about some of the counsel who were just awful. And they either didn’t
understand the rules or they didn’t even seem to be doing what their clients would expect them to
do. They were constantly “Uriah Heep-ing” on the judges, kind of, “Oh, your Honor, I’m so sorry
about this; I never meant to do that.” It turned out, after I left, that there was a scam going on
among a few defense counsel, not all but just a certain few, including one of the ones that we had
had in the Omarska trial. The defendants would pick them off the list, but only on condition that
the lawyers would agree to kick back a certain amount of their fees, because the assigned counsel
fees were in U.S. dollars and the pay was so much better than anything that the Balkan counsel
could make that the assignment was a plum to get. One woman I remember, we had a symposium
of defense counsel over there, said that the night her husband had been indicted, she got 24 calls
from defense counsel asking to be assigned. The defendants were supporting their families,
buying apartments with the kick backs. In one case, including the case we were in, they claimed
they had hired two investigators. In fact, they hadn’t hired anybody at all.
Mr. Pollak: The money was just going into the pockets.
Judge Wald: Yes.
Mr. Pollak: Did the entire ICTY experience change your view about being a trial
judge? Would you have been a different kind of appellate judge if you had been first a trial
judge?
Judge Wald: I don’t know. It’s hard to speculate. I always had a fair amount of
respect for trial judges. I liked to think maybe more so than some. But the ICTY experience en-
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hanced that respect. I think it’s like being in the infantry compared to the Pentagon. On the other
hand, I have to say that given my own abilities and temperament, I’m not sure I could have done it
my whole life, and I really enjoyed the appellate work. And I enjoyed the kind of give and take
between appellate judges. I wouldn’t say I enjoyed every instance, but I enjoyed the general
notion that you got the different view points and accommodated them or at least you had to take
account of them. Now of course when you’re dealing with a three-judge trial bench, you are
getting a mixture. On the other hand, for someone coming out of our system, it seems to be an
awkward system where three judges have to agree on every piece of evidence that is admitted, or
whether this cross-examination question is within the scope of the direct examination. On the
other hand, in the district court the buck stops there. The district court judges have total control,
but they also have total responsibility.
Mr. Pollak: I guess that somebody somewhere must have thought that you three
trial judges served not only as the assemblers and hearers of the record, but somewhat as the
jurors.
Judge Wald: Well, yes, because of course they don’t have juries and there are
many doctrines which are honored in the ICTY rules and jurisprudence which are very familiar to
us. One of them being that the appellate court is supposed to give great respect to the trial court’s
assessment of the credibility of witnesses. On the other hand, the thing about the ICTY when I
was there, and it has changed, it is going to be different in the new ICC, is there seemed to be a
random nature as to whether you got assigned to an appellate court or a trial court. One might
have thought that after 20 years of appellate experience I would have gotten assigned to an
appellate court. In fact, there was an opening in the appellate court, but I got assigned to the
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trial court and a judge from Italy got assigned to the appellate court. He didn’t have any
experience in trial court, but he didn’t have any experience in appellate courts either. The
president of the tribunal made the assignments. Like all institutions, I suppose his personal or
subjective judgments played a part. But as I said in the beginning I now feel, “Oh God, I am so
grateful.” I really think that trial court experience is something I never had before and will never
have again and I’m so grateful I had it. And I got enough of the appellate court experience at the
ICTY, so that I don’t feel I was cheated out of anything at all.
Mr. Pollak: In reading the materials you gave me and the articles and talks that
you had given, you identified a number of serious issues relating to the way the ICTY does its
work. I am prepared to inquire of you about those. They are real issues. You’ve written about
them. I wonder if given the time we have if I shouldn’t move beyond them?
Judge Wald: I covered a lot of them. I could even sum some of them up. I think a
lot of them are being remedied. I think the cases could be tried faster and I think many of the
rules are being changed to allow the judges to take more control. I think the business of making
sure the people, especially the judges on a panel, have had some trial experience beforehand in a
complex case is also being remedied. That is certainly a requirement now for the ICC and I think
it’s probably being attended to more at the ICTY.
Mr. Pollak: One of the issues you wrote about, spoke about, is really quite an
interesting one in terms of some of the things that are coming up in dealing with terrorists in the
United States. That is the paper testimony versus live testimony issue. I don’t know whether you
want to say anything about that?
Judge Wald: It was still in a state of flux, the tribunal law, when I left. For one
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thing, as you know, the whole continental tradition is much more paper bound than ours. They
don’t have any ban against hearsay as such the way we do, although I know we have all kinds of
exceptions. You have to fit yourself into an exception. They don’t have that. Now, the rules of
the tribunal were unclear in that from time to time the burden shifted from one side to another
as to how much hearsay was permissible and were there any limits on it. The rules were revised
while I was there. I sat on the rules committee when they were revised to some extent to permit
more hearsay. Given the kind of trials that are being held at the ICTY, some of that is okay, for
instance, if you need to put into the record as you often do, the background of a whole
campaign, what happened prior to the capture of Srebrenica that led to its destruction.
Obviously, I’m sure historians may differ, but still I think it’s not unreasonable for an expert
witness to prepare a written record of that kind of account and then be subject to crossexamination on it, and for the other side to put in a written record where they differ. I don’t
think you really have to have a live witness for every such submission.
Mr. Pollak: But what about where a witness is out in the field, is afraid to come to
the Hague, and his affidavit is put in.
Judge Wald: Well, that doesn’t happen just that way. It didn’t while I was there.
It might happen as I understand it under some of the proposed rules of our own country at least in
military tribunals, but it was not that wide open over there. There were certain areas like
background and statistical proof where experts testified almost as they do before an administrative
agency. They would present written prepared testimony ahead of time. If somebody wanted to
ask questions about it or cross-examine particular statements, usually they could do it.
Occasionally, somebody would submit a transcript for the same witness who testified about the
same instance subject to cross-examination in a prior trial. The question came up because very
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often you can’t catch all the same people involved in a particular episode at the same time and
you may have – I’ve seen this happen – six trials going on about the same basic event because
the people were caught at different times. Thus, the question came up if somebody testified in
trial one and was subject to cross-examination by defense counsel in trial one – admittedly
there will be different defense counsel in trial two – can that witness’s transcript be introduced
in the second trial. The compromise that was reached in that instance was it could come in but
if the other side could show that there were questions that they would have asked or wanted to
ask but hadn’t been asked in the first trial, then the court would consider that and decide
whether or not we had to bring the witness in. We did have a rule that any testimony that went
to the role or conduct of the accused had to be live and direct. Even that raised questions
because some of the cases are done on a command responsibility or criminal enterprise
doctrine, not unlike our conspiracy doctrine. The question then becomes when you are talking
about role or conduct and you’re in a setting where the law says the actions of one person can
be attributed to another if you’re in this criminal enterprise or if you are in this conspiracy, does
that mean that some of the evidence about the conduct of third parties that might be attributed
to the defendant can be admitted without a live witness. I sat on one appeal case where we
overruled the trial court which allowed a letter from a dead person who obviously couldn’t be
brought to the trial into the record because it was unsworn, and never subjected to crossexamination. It was a letter and it implicated somebody else, and we said no, there’s no indicia
of credibility on those kinds of things. Now as to the use of depositions, it is more lenient than
in our situation here in the U.S., but we had also had video testimony and I have no problem
with that. It was the first time I had ever seen it. In fact, it was
interesting in the Krstic trial, we had a relatively important witness on a key point. He was here in
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the States. The district court – I won’t say what state it is, because he went under a pseudonym –
the district court here in the United States arranged for his testimony to be taken here in the United
States.
Mr. Pollak: This is the last side of the interview on May 6, 2003. You were just in
the middle of discussing use of video taped testimony.
Judge Wald: So this particular person was testifying from here in the United States
on video tape. The video was in the courtroom and we could, which is I think the essential thing,
we the judges could ask him questions and get the answers right there in the courtroom as well as
the prosecutors. That’s another aspect which I sort of liked. I forgot to mention that earlier.
Mr. Pollak: It went on in time present?
Judge Wald: Yes.
Mr. Pollak: That is, you were hooked in?
Judge Wald: Yes, that’s right. After a few minutes you forgot that he was on a
video because the whole business in the ICTY, as it is in some civil law countries, is the judges
can take a much greater role at trial. They can ask questions. Now admittedly our U.S. judges can
ask some, but they are always supposed to kind of hold back. The judges take a much more active
role in questioning over there. Any questioning you feel didn’t get asked that should have been
asked, you ask. Although I have to tell you one episode in the Srebrenica case which was
interesting. The rules also allow judges to call witnesses that they think should be heard from.
This is not used excessively, but when we got through with all the testimony in the Srebrenica
case, we decided, it was the opinion of all three of us that we had heard from the prosecution and
a whole parade of all the victim witnesses, all the expert witnesses, the exhumations and
everything; we had heard from the defense about all the strategy and the whole point of view of
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the Bosnian Serb army as to what happened; but what we hadn’t heard at all was any testimony
from Muslim army people. As I told you, the remnants of the Muslim army that were in
Srebrenica were leading the march to Tuzla. Most of the column was civilians, but the army
remnants were leading it and there were some remnants of the Muslim army in Srebrenica. It
was kind of one of those missing witness kind of things. You want to hear their story. So we
said, “We’d like to hear them” – and the Muslim generals had been identified in other people’s
testimony, who the two generals were – “the Muslim generals.” So we asked that they be called.
One of them was then a high-ranking official in the current Bosnian government – both of them
had written books about the war. So they both came. They didn’t ask for any kind of protective
conditions or anything. They testified. The testimony didn’t turn out to be controlling, but it was
part of the picture. Under those circumstances when the judges call witnesses, both sides
obviously get to cross-examine them as if they were not their own witnesses. The defense asked
a lot of questions. The prosecution asked none, so okay, we came down with our opinion. That
week and maybe a couple of days after our judgment, the prosecutor’s office issued an
indictment against one of the generals, but not for anything he did in our case, but for something
totally different. A week or so later they brought down an indictment against the second. They
never told us ahead of time; should they have, maybe they shouldn’t have. Should we have
asked –well, it was too late once they got there.
Mr. Pollak: Because they were testifying and possibly incriminating themselves?
Judge Wald: Well, they knew that indictments were a possibility. Both of them
knew. Generally, since they were high level officials there wasn’t any fear –Mr. Pollak: I see. Do
you think that’s why the prosecution didn’t ask any questions?
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Judge Wald: Oh, absolutely that’s why the prosecution didn’t ask any questions.
But I think that the generals probably knew that they were at least under suspicion and came anyway, but the question of the position it put the judges in, not only to have called them as our
witnesses, but to have relied to some degree on their testimony without ever being told – I don’t
know what the ethics are there. Maybe they shouldn’t have told us. That would have prejudiced
us in our evaluation. It was a tough call, but it made for kind of an interesting feeling about the
perils of being an interventionist judge.
Mr. Pollak: Do you have anything to say about the comparison of being an
appellate judge on the ICTY as compared to being an appellate judge on the D.C. Circuit?
Judge Wald: Well, I think my preferences there would be for the area I knew best,
which was the D.C. Circuit. Maybe primarily for the reason I told you. I think this business of
getting new evidence in – it’s trying to compare apples and oranges – and having it all floating
around up there make the ICTY appeals different. Also the oral arguments – of course, we
occasionally had a long oral argument in the D.C. Circuit in a complex case, but generally as you
know, they are under half an hour per person – over there they go on for days.
Mr. Pollak: It is sort of like the British system, reading decisions.
Judge Wald: That’s right. It was an interesting experience. There were two really
excellent British barristers arguing on the big appeal that I sat on.
Mr. Pollak: Would you please identify that?
Judge Wald: Yes, that’s. I’ll give you the three judgments. The
Kupreskic appeal was interesting in that it was the first time in the history of the ICTY that the
appellate tribunal reversed convictions. We had five defendants. It was another big appeal. We
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reversed the convictions for lack of enough credible evidence on three of them. This caused quite
a stir over there. This was I think just less than a week before I left. The last six months were
really very hectic, getting all this stuff done. I was the Chief Judge on the appellate panel and so I
kind of acted like an American judge and handed out assignments, coordinating the whole thing. I
don’t think the prosecution was very happy about it, but several people said they thought taking a
long-range view was a good thing because it showed that the court was interested in due process
and it wasn’t going to automatically rubber stamp all of the convictions.
Mr. Pollak: On the appellate cases that you sat on, would one judge write an
opinion for the court? How did that work?
Judge Wald: There were two kinds of appellate rulings, as I told you, while I was
there, although interlocutory appeals have been clamped down of late. In fact, I helped write the
rule that clamped them down. During most of my time, however, the rules allowed interlocutory
appeals so several of the cases, like the one I told you about the letter, would come up on a single
issue. In that case, one judge would volunteer to draft the opinion. Now when you get a
judgment, however, as on this big case, where you had five different convictions, with 60 or 70
issues – there what we did, at least with the agreement of the other judges, it was a unanimous
opinion, we would assign parts to particular chambers. What went on inside the chambers,
whether the judge wrote it or the assistant wrote it, I don’t know, but we would assign to the
chambers particular parts. Then we would get it back and we would –
Mr. Pollak: And we being the Chief Judge, yourself?
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Judge Wald: Me and there were one or two legal assistants I worked closely with –
Michelle and one or two other very good legal assistants.
Mr. Pollak: And you put it together?
Judge Wald: We put it together. If we thought the thing didn’t make great good
sense we would go back to the chambers and to the judge.
Mr. Pollak: In your prior oral history you spoke about your panel’s review of the
Oliver North conviction in Judge Gesell’s court.
Judge Wald: I remember that.
Mr. Pollak: You spoke to it there saying, “ Two basic issues I dissented on.
Judges Silberman and Sentelle reversed one of the counts because they said Judge Gesell gave too
restrictive an instruction to the jury as to North’s defense that he was only following orders, what I
saw as a variation on the Nuremberg defense. That’s an issue which I disagreed on.” I just
wondered whether your service on the ICTY leads you to make any comment on that.
Judge Wald: The “Nuremberg defense” – that’s a short-cut description, of course –
for “I was only following orders.” I should have gone back, but I didn’t check back the details of
the North case. Let me put it in the ICTY context. The so-called Nuremberg defense is
specifically outlawed in both the statute of the ICTY and the statute of the new ICC. Both say it
shall not be a defense.
Mr. Pollak: What was a defense for or an argued defense for Colonel North was
not available to the defendants in the ICTY case?
Judge Wald: That’s right. But I’ll tell you in an earlier case which preceded my
time, the question arose as to a person who had pled guilty a couple years before, just a common
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soldier, to being on the execution squad where they killed 100 innocent men every 15 minutes.
He had been drafted into the Bosnian-Serb army. He was told to do this duty. He said he didn’t
want to do this duty. This is his testimony. And they said if you don’t do it, we’ll shoot you. So
the question came up, “Is that a defense?” I mean, if you are told that unless you do this terrible
thing that you don’t want to do and know is wrong, that you yourself will be killed. That really
split the appellate section of the ICTY wide open as to whether or not a documented case of
duress would excuse his act and then his superiors said if it’s not you, the next guy will come in
and we’ll put somebody else in here and we’ll shoot you. Now, several of the judges said no even
that’s not an excuse. It can be taken into account on sentencing. There were several that said yes,
you know, a really documented case of duress does make a defense so the Nuremberg defense as
such is not recognized – well it didn’t even work in Nuremberg. I mean they called it Nuremberg
defense because it was raised there, but it was not validated at Nuremberg.
Mr. Pollak: No?
Judge Wald: As I recall now, but I wouldn’t guarantee it, the way it came up in the
North case was, of course, he said he was following Poindexter’s orders. The prosecution’s
argument against that was, “You can’t follow orders which are on their face illegal.” If you
follow an order and you don’t have any reason to believe it’s illegal and it turns out it’s illegal,
well I guess that’s a defense. But if you have reason to believe it’s illegal you can’t follow it.
Mr. Pollak: The world has changed since you went to the ICTY insofar as the
United States is concerned.
Judge Wald: 9/11 happened while I was over there.
Mr. Pollak: Right. So, I wondered what lessons you draw from your experience
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on the ICTY respecting procedures and trial for persons accused of terrorism or related crimes?
Trial under the Federal Rules of Criminal Procedure or special procedures? I don’t know that you
have views on this?
Judge Wald: I have some reactions. I don’t have a tight view. I think that the
cases at the ICTY, I was satisfied, were fundamentally fair. They didn’t follow the Federal Rules
of Criminal Procedure, but as to the two trials I was in, I don’t know of anything that happened in
them that I felt, “Gee, this is really taking somebody’s rights away.” It might be done differently,
but I felt that basically they were fundamentally fair – but they were long trials. I don’t operate on
the notion that we can give everybody who is accused of committing a war crime a year-long trial.
I think that there may have to be some accommodation made for war situations in the sense of
evidence. It does seem to me if you have a key witness somehow you have to produce the key
witness or make the key witness available through a video tape so somebody gets to crossexamine him. They can’t do it by affidavit. We didn’t go so far as to ever let a key witness on the
role of conduct of the accused come in by way of affidavit alone. There were parts of the
proceedings that were closed, but only for a witness who had been physically threatened or
something close to that. And then the defense always got to see and hear the witness. It was just
a question of closing the public gallery and turning off the T.V. for those situations.
Mr. Pollak: Were they all public trials?
Judge Wald: Every one was a public trial. Little parts closed, but there were not
completely closed trials as such. The ICTY model is one which will not be repeated because it’s
too expensive and too time consuming and even some of the international hybrid tribunals like
Sierra Leone are now much more geared to the top leaders. They use a combination of national
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and international judges. They are not all international judges. Not UN created. The UN
cooperates and approves the procedures, but it doesn’t run or support them.
Mr. Pollak: Was the ICTY a big financial burden under UN?
Judge Wald: Terrible. Yes. The ICTY and the ICTR, the Rwanda tribunal, were
taking up 10 percent of the UN budget, barring peace-keeping, but 10 percent of the basic budget.
They just were never going to create another one like that, so I think so far, the problem I have
with what is going on post-9/11 is that it seems to be kind of a cherry picking operation for the
government. In some cases, they are putting people into the regular civil trial system and in some
of them they are going this enemy combatant role route.
Mr. Pollak: Where you don’t get a trial at all?
Judge Wald: Where you don’t get a charge or a trial or a lawyer or anything. I
think that is highly suspect; this is being challenged through the courts right now and we’ll see. I
think that the use of the material witness statute, which was passed in yours and my time I
remember back in the ’60s, nobody quite envisioned that you could hold somebody as a material
witness for a grand jury not for a specific date or time, but just indefinitely because some place
years down the line they might be relevant to a grand jury operation. So I think there are a lot of
question marks here.
Mr. Pollak: Do you have any views that you want to state based on your
experience in respect to the International Criminal Court?
Judge Wald: Yes. I’m very much supportive of the ICC. In fact, the Justice
Initiative, where I’m working now, has as one of its areas support of international courts and we
are working on various aspects of the International Criminal Court. I think the rules that they
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drafted have in many aspects satisfied a lot of the procedural problems I had with the ICTY. I
think the judges who have been elected and the prosecutor, it’s very hard to make out a case that
they are the kind of people who are going to bring down a political vendetta against the U.S. I
believe that a permanent International Criminal Court is necessary because, while it is the hope of
everybody that countries will take care of their own war criminals, they’ll set up the procedures to
go after them, we all know from experience it doesn’t always work. Even Nuremberg, when they
tried to put some in the German courts right away, they were getting all acquittals. I mean, it
takes a while for these things to settle in, not only for courts in countries that are ravaged by war to
get their infrastructures, their judicial systems up and running again. Also, in many countries the
political will to prosecute is not there. These are people who are still regarded as heroes even after
the war is over. I think that unless you are just going to say, “Let’s forget about it once the war is
over and never mind the war criminals,” then you do need some forum like the ICC. It seems to
me for the top leaders you need a certain amount of international credibility and that would come
from the ICC, but it could also come from setting up these hybrid international courts which have
the approval and are at least overseen by the UN. I do think the International
Criminal Court is preferable to setting up a new ad hoc court every time you get a new situation,
without any continuity, precedent, etc. The U.S. certainly has nothing to fear in my view that
servicemen are going to be targeted. The International Criminal Court has already got 250
prospective cases that have been filed there. They are not going to go after some servicemen. I
think the real fear, as I understand it, is that there would be cases brought on political grounds,
that they would go after the leaders of countries and say that when you bombed Belgrade or when
you bombed X country, you committed a crime. The U.S. has always been in the forefront up
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until now of international justice. I mean we were the people who were the spur on Nuremberg.
We were the ones who really had the greatest role in setting up the Rwanda and ICTY tribunals.
We were perfectly happy to see the international-type tribunals in Sierra Leone, East Timor,
Kosovo. But the notion that somehow those are all of course geographically limited, their
jurisdictions limited, the notion that somehow you can be for international justice but we always
have to have a complete waiver as to our own people, or we can’t take any of the risks that the rest
of the world is expected to take, is one I think that’s brought about a fair amount of cynicism in
other parts of the world. So I am hopeful that if the International Criminal Court gets up and
going and does a good job, it shows that it can be impartial, that it is not going to be politically
motivated, that maybe after a number of years we can look again.
Mr. Pollak: Pat, do you have any comment on the application of any existing
processes for charging and trying war crimes relating to former rulers of Iraq.
Judge Wald: I’ll just sort of sum it up. I think that for the very top leaders, whether
there were 55 in the deck of cards or not, there ought to be a court which has some international
presence and approval. It doesn’t have to be set up by the UN. It can have Iraqi judges on it. It
can have neighbors from other Arab countries on it. But it must accede to the kind of minimum
rules of international fairness and due process which are set out in international law and have some
visibility and transparency so that people can see what’s going on. I think it would be plausible to
do that only for the top leaders and then to hope that you can resurrect and bolster enough of the
national system to try fairly the lower-on-downs. But I think the U.S. government has said that it
plans to try people who have committed war crimes during the current war in military tribunals.
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Mr. Pollak: Anything else you want to say?
Judge Wald: No.
Mr. Pollak: Well that’s the end on May 6 at 5:10 p.m. Thank you, Pat.