The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy

By Rachel Kerr | Go to book overview

5 Procedure: 'Justice Must Not Only be Done, but Must be Seen to be Done'

Chapter 4 highlighted a number of issues with regard to the impact of the political mandate on the exercise of jurisdiction by the Tribunal, and conversely, the consequences of legal decisions on jurisdiction in the political arena. This chapter examines a set of issues arising from the formulation and interpretation of the Rules of Procedure and Evidence (RPE) of the Tribunal with regard to its status as a political tool. This is not a detailed examination of the Tribunal's RPE, nor of its jurisprudence. 1 Rather, it is an analysis of the procedure of the Tribunal in as far as it related to the impact of politics on law, and vice versa. As stated by Judge Shahabuddeen, there was a need for 'reasonable judicial flexibility', in order to strike the correct balance between competing imperatives of politics, justice, and equality. 2

On the one hand, there was a legal imperative for judicial propriety, which coincided with the political imperative that justice must be seen to be done. Former President Cassese stated in 1997:

[T]he Tribunal relies on the widespread publication of its judicial acts and commentaries thereon for the fulfilment of its mandate. In accordance with the well-known

-92-

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The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy
Table of contents

Table of contents

  • The International Criminal Tribunal for the Former Yugoslavia iii
  • Acknowledgments v
  • Contents vii
  • Abbreviations viii
  • 1: Introduction 1
  • 2: International Peace and Security, International Criminal Justice, and the Yugoslav War 12
  • 3: Establishing a Court 41
  • 4: Jurisdiction 60
  • 5: Procedure 92
  • 6: Cooperation and Judicial Assistance 115
  • 7: 'First Catch Your Criminal' 147
  • 8: An Apolitical or a Political Institution? the Exercise of Prosecutorial Discretion 175
  • 9: Conclusion 208
  • Bibliography 220
  • Index 237
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