Appellate Review in the International Criminal Tribunals
Fleming, Mark C., Texas International Law Journal
It is hard to imagine a modern criminal justice system without an appellate court. Most, if not all, domestic legal systems provide for two and often three levels of adjudication in criminal cases. International criminal trials, by contrast, have historically ended in one judgment rendered by a single body. Defendants convicted by the postwar Nuremberg and Tokyo war crimes tribunals could only request clemency from a political body; there was no judicial reexamination of the facts or law underlying the convictions.1
The last eight years have seen the emergence of an international novelty: a court with jurisdiction over appeals in international criminal cases. The International Criminal Tribunal for the former Yugoslavia (ICTY), created in 1993 by resolution of the United Nations Security Council in response to the war and human rights crisis in the former Yugoslavia, was designed with an appeals chamber constituted to hear appeals from decisions of the Trial Chambers. A year later, the Appeals Chamber's responsibility was expanded to hear appeals from the Trial Chambers of the International Criminal Tribunal for Rwanda (ICTR).2 The planned permanent International Criminal Court (ICC) is also to be equipped with an appeals division.3 These are the first courts in modern history that are empowered to hear criminal appeals from other international courts. There is no known example of an appellate court in international criminal matters before 1993, even though international criminal prosecutions have a venerable pedigree that some trace back to the fifteenth century.4
The decision of the United Nations Security Council to create an Appeals Chamber for the ICTY, though unprecedented, produced little controversy; it was eclipsed by the even greater novelty of the entire enterprise. The decision to create two levels of jurisdiction rather than one justifiably paled in comparison to the other complicated questions surrounding the creation of the ICTY, such as the definition of the crimes to be prosecuted. When an identical Appeals Chamber consisting of the same judges was created in 1994 to hear appeals from the ICTR, the decision was similarly uncontested. Since then, although much discussion has arisen regarding the jurisdiction of the ICTY or ICTR as a whole, very little discussion has centered specifically on their appellate jurisdiction.
This article analyzes the development of appellate review in the international criminal tribunals in light of two important Appeals Chamber decisions in the last two years: Tadic and Barayagwiza. These high-profile decisions raise important questions regarding the role of an appellate court in the international tribunals.
The first of these landmark decisions involved an appeal by Dusko Tadic, the first defendant to be tried to final judgment in an ICTY Trial Chamber. After he was convicted on several counts but acquitted on others, both Tadic and the ICTY Prosecutor appealed the unfavorable aspects of the judgment. On July 15, 1999, the Appeals Chamber held in favor of the prosecution, reversing the Trial Chamber's acquittal of Tadic on several counts of the indictment and entering judgments of guilt.5 This action, arguably problematic if viewed through the lens of U.S. double jeopardy principles, also opened the door to the possibility that the Appeals Chamber might reverse an acquittal because of a disagreement with the Trial Chamber on the proper evaluation of the evidence. The Appeals Chamber showed little interest in addressing the significant questions raised in the Tadic case regarding its power to hear prosecutorial appeals from acquittals.
On November 3, 1999, less than four months after Tadic, the Appeals Chamber upheld the interlocutory appeal of Jean-Bosco Barayagwiza, allegedly a major figure in the Rwandan genocide, and ordered that he be released and his indictment dismissed with prejudice, before a single witness in the case had even been heard. …