Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Anatomy of an International Criminal Tribunal

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Anatomy of an International Criminal Tribunal

Article excerpt

The luncheon began at 12:30 p.m., Friday, March 31, and the succeeding lecture was presented by the 2006 recipient of the Manley O. Hudson Medal, Judge Theodor Meron of the International Criminal Tribunal for the Former Yugoslavia. Professor Michael Reisman of Yale Law School introduced Judge Meron.


Good afternoon friends and colleagues. I want to thank Professor Reisman for his kind introduction. His scholarship has been remarkable in scope and quality, and he has been for me a mentor and an example.

It is an honor, not just to receive the Hudson medal, but also to be given the opportunity to address you today. For my talk, I want to discuss the anatomy of a modern international criminal tribunal, which I have had the opportunity to study during the last few years.

I am going to focus on the ad-hoc tribunals on whose Appeals Chambers I serve--the International Criminal Tribunal for the Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Established in 1993 and 1994, respectively, these tribunals were a real experiment. Since the Nuremberg and Tokyo trials almost a half-century before, theories of international criminal justice had not been tested in courts. Hence, at the time the ICTY and ICTR were created, one could hardly have taken for granted that an international court applying international criminal law would be a success. Yet both the Security Council and General Assembly recently have praised the tribunals for their efficiency, their contribution to ending impunity, and their development of a whole new corpus of substantive, evidentiary, and procedural jurisprudence.

A few weeks ago, after the death of Slobodan Milosevic, a handful of pundits called the ICTY's success into question. Their scepticism is unwarranted. The fact that one defendant died as his trial was concluding does not detract from the fact that, in dozens of other cases, the ICTY and ICTR have shown that international criminal law can be fairly and impartially applied and that persons who violate that law cannot expect impunity. The ad-hoc tribunals also have helped to create an impartial record of atrocities and to offer victims a sense of vindication.

Moreover, Mr. Milosevic's trial itself contributed to all of these goals. The mere fact that he was brought to The Hague to answer the very serious allegations against him signified that even the most powerful are subject to the rule of law. Scores of witnesses for both sides traveled from afar to tell their stories. The body of evidence thereby created remains relevant, not for the Tribunal's judgment, but for that of history. And the Tribunal also amply demonstrated its serious commitment to ensuring a fair trial for defendants, including by accommodating Mr. Milosevics medical needs and his desire to conduct his own defense. This, more than anything else, was the reason his trial was so long.

Now, let me turn to my main focus. I am not going to spend much time on the Tribunals' broader social and political goals. Rather, I want to talk nuts and bolts. How do the Tribunals actually work?

The ad-hoc tribunals' anatomy is not just the sum of many disjointed solutions to disconnected practical problems. Rather, this anatomy has developed, in significant part, as a result of two broad considerations. The first is the need to ensure substantive and procedural fairness and to ensure that the Tribunals are perceived as acting legitimately. The second is the fact that the Tribunals exist outside the framework of any state and that they therefore must function in the absence of any corresponding legislative or executive body. Nonetheless, the tribunals have done a good job of ensuring both fairness and efficacy outside the framework of a state.

I want to highlight a few points of contrast between the ad-hoc tribunals and the Nuremberg tribunals--which were, along with Tokyo, the modern international criminal tribunals' sole antecedents, and thus serve as an important point of reference. …

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