The Legacy of the International Criminal Tribunal for the Former Yugoslavia

By Swart, Mia | Melbourne Journal of International Law, June 2012 | Go to article overview

The Legacy of the International Criminal Tribunal for the Former Yugoslavia


Swart, Mia, Melbourne Journal of International Law


THE LEGACY OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA EDITED BY BERT SWART, ALEXANDER ZAHAR AND GORAN SLUITER (OXFORD, UK: OXFORD UNIVERSITY PRESS, 2011) 584 PAGES. PRICE AU$181.95 (HARDBACK) ISBN 9780199573417.

'A legacy is not something cast in stone for all times; rather it is an evolving intellectual relationship that we construct with an object receding in the past (to the point of it being strange to speak of legacy whilst the tribunal is sill in activity), and that we are condemned to reinterpret on the basis of changing circumstances and assumptions'.

--Frederic Megret (1)

The word 'legacy' can be understood in at least two ways. It can be that which is left behind by a legator. It can also refer to the way in which the legator (whether a person or an institution) is remembered. It is this second sense of the term 'legacy' that is of interest here. At the first 'Legacy Conference' of the International Criminal Tribunal for the Former Yugoslavia ('ICTY') in December 2010, the President of the Tribunal, Judge Patrick Robinson, said that the Tribunal would not attempt to control its own legacy. (2) But the Tribunal is clearly quite preoccupied with its legacy. (3) In addition to hosting two 'legacy conferences', the ICTY is one of the first--if not the first--international institutions to appoint a legal officer to work solely on 'legacy issues'. (4) At times, this preoccupation has smacked of self-congratulation. It is therefore appropriate that more critical academic studies are now appearing on the legacy of the ICTY. (5)

Megret suggests that an approach which does not attempt to 'foist' a particular message on the reader is appropriate in the context of legacy--it shows sensitivity to the fact that legacy is often a matter of perception, (6) which depends on one's own particular relationship to the Tribunal.

Does the book intend to paint a positive or a negative picture of the Tribunal's legacy? Two of the editors (Zahar and Sluiter) state in the Introduction that this is not the right question for readers to ask. They point out that the final section of the book is devoted to more sceptical chapters, which reveal the extent to which the ICTY has improvised in order to get the job done. (7)

The editors concede that the collection does not do justice to the ICTY's legacy as a whole. (8) They describe the book as 'but the first instalment in a larger project of understanding the legacy of the international criminal tribunals generally'. (9) Nevertheless, the book does well for such an ambitious undertaking, covering a broad spectrum of topics in considerable depth and detail. It also displays some originality (10) and novelty by including neglected topics such as a comparison between rights under the European Court of Human Rights and the Statute of the International Criminal Tribunal for the Former Yugoslavia ('ICTY Statute') (11) and the practice of writing individual opinions at the ICTY.

In spite of the fact that the book has an appropriately critical tone for an academic study, it is clearly a tribute to the many achievements of the ICTY. But the book is also a tribute to Judge Bert Swart. Swart was Professor of European Criminal Law at the University of Amsterdam, ad litem judge of the ICTY and International Criminal Tribunal for Rwanda ('ICTR') and judge of the Special Tribunal for Lebanon. (12) He died in February 2011, a few months before the publication of the book. Fittingly, his coeditors have dedicated the book to him. In a sense, the book is also a tribute to the 'father of the Tribunal', Antonio Cassese, and his legacy as a judge and scholar. The legacy of the ICTY will be strongly influenced by these powerful personalities and groundbreakers.

What impact has the ICTY had on communities in the former Yugoslavia? This question has become increasingly interesting to ICTY observers and commentators. (13) The chapter by Kimi King and James Meernik attempts to balance international and local interests.

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