Academic journal article Texas International Law Journal

Rulemaking from the Bench: A Place for Minimalism at the ICTY

Academic journal article Texas International Law Journal

Rulemaking from the Bench: A Place for Minimalism at the ICTY

Article excerpt

"At a time when we are trying to enforce international law and to bring these criminals to account, we are going to end up with the eyes and ears of the world blind on the ground."

Ed Vulliamy, Reporter for the Observer of London

December 11, 2002


In January 2002, a former reporter for the Washington Post was subpoenaed to appear before Trial Chamber II of the International Criminal Tribunal for the Former Yugoslavia (ICTY).1 In December of that year, the Appeals Chamber tackled his claim for journalistic privilege.2 The claim of privilege was one for which there were no guiding provisions in either the Statute of the Tribunal3 or its Rules of Procedure and Evidence.4 The Appeals Chamber, unshackled by restrictive rules, was thus required to make the appropriate determination in the case, though an affirmative ruling would likely invite future claims of privilege before the Tribunal.

This article explores the Tribunal's ability to create and amend its own Rules of Procedure and Evidence. It also focuses on the manner in which the Tribunal addresses issues that arise, throughout the course of its proceedings, for which its statute and rules are silent. This article advances the theory that, when confronted with issues that are controversial, complex, or for which there is a lack of consensus among national legal systems or the judiciary, the Court should decide the case before it rather than create broad and binding rules. This proposition is supported by reference to the case law of the Tribunal, including its handling of the claim of journalistic privilege, with a particular focus given to the fair trial rights of the accused.


A. Rulemaking at Plenary Meetings

1. Background

"Continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia" resulted in a decision by the security Council that an international tribunal ought to be established in order to prosecute the perpetrators of the violations.5 Given the prosecutions that took place in the aftermath of World War II, such a tribunal would not be wholly unique,6 with the prosecutions that took place at Nuremberg providing the most well-known precedent.7 The post-World War II prosecutions were not without their faults, however, and accordingly, the security Council was sensitive to the importance of the fact that the new tribunal not be perceived as an example of "victors'justice."8

In response to the security Council's decision in Resolution 808,9 the secretaryGeneral drafted and submitted a report on the potential tribunal.'0 Citing the security Council's Chapter VII powers, which provide the Council with the authority to take preventive and enforcement measures in order to maintain international peace and security, the report established a legal basis for the creation of the Tribunal." With regard to potential claims that the Tribunal's prosecutions would run afoul of the principle that "there is no crime without law," the report provides that the International Tribunal should apply only those laws, "which are beyond any doubt part of the customary law."12 The security Council subsequently adopted the Statute of the International Tribunal, which was annexed to the secretary-General's report.13 The controlling provision in the Statute regarding trial proceedings before the Tribunal is Article 20, which states:

The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.14

The rules of procedure and evidence that are to apply to trial proceedings before the Tribunal were not drafted by the secretary-General, however. Rather, Article 15 of the Statute15 provides that the Tribunal's judiciary be given the task of Grafting the rules; this delegation was subsequently referred to by one critic as "dynamic yet troubling. …

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