Is Justice Delayed at the International Criminal Tribunals?
Meernik, James, Aloisi, Rosa, Judicature
The length of time needed to complete adjudication at the international tribunals is substantially determined by legal and other factors inherent in the nature of prosecutions in international criminal law. Thus, while justice may not be rendered with the efficiency of domestic courts, it is neither delayed nor denied.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have faced numerous and serious challenges since their inception in the early 1990s. Critics have leveled all manner of charges targeting the relevance, fairness, and perceived inefficiencies of these courts in adjudicating cases involving war crimes, crimes against humanity, and genocide arising from the Balkan wars and the 1994 Rwandan Genocide. Rather than engaging in a polemic regarding perceived shortcomings of the tribunals, it is our intention to systematically investigate one of the most vexing issues affecting the ad hoc tribunals today and that will impact the International Criminal Court (ICC) in the future-the efficiency of the adjudicatory process.
One of the most oft-heard criticisms and one of the central concerns motivating the tribunals' respective Completion Strategies, mandated by the United Nations Security Council, is the length of time it takes to complete the adjudicatory process. Critics charge that the lengthy proceedings are excessively expensive, potentially injurious to the rights of the accused, and undermine the justice they are designed to deliver. The United Nations and its Security Council are pushing the tribunals to complete their trials and appellate proceedings in the very near future for these reasons.
Guaranteeing fair and speedy trials are important components of human rights standards and international humanitarian law. As noted by ICTYJudge Iain Bonomy,1 principles of due process that are protected by international law would be violated by lengthy trials. Especially important in this regard are norms protecting the rights of the defendant and the rights of the victims and witnesses to trials that proceed in a fair and timely fashion. One of the main concerns regarding the work of the tribunals has been the amount of time defendants spend in pre-trial detention and, consequentially, the potential violation of important rules provided by the European Convention on Human Rights (ECHR) and the International Covenant for Political and Civil Rights (ICCPR). Both these instruments protect the right to liberty, the right to receive humane treatment, and the right to fair trials.2
Further, Zacklin9 has pointed out that the delays in bringing detainees to trial have particularly frustrated the international community, especially considering that the ICTY and ICTR "have grown into enormous and extremely costly bureaucratic machines" with a cumulative budget that exceeds $250 million per year. Ultimately, slow international justice affects the entire apparatus of international law in terms of its legitimacy, enforcement, and protection of human rights. As cogently pointed out by many, the legacies of the international tribunals will be strongly influenced by their ability to deliver fair and expeditious trials.
Given the enormous variety and complexity of cases that will come before it, such issues will almost certainly affect the ICC as its judges begin to conduct trial proceedings. The ad hoc tribunals have at least had the comparative "luxury" of hearing cases involving defendants from die same set of conflicts in the same region that have allowed their staffs to master issues dealing with a particular set of conflict histories and actors, language translation, and evidence gathering. No such efficiencies and economies of scale will be possible at the ICC with its worldwide jurisdiction, and thus the likelihood of exceedingly lengthy trials will no doubt resurface.
The central and simple question we seek to address is, what factors determine the length of trials at die ICTY and ICTR? …