Anatomy of an international criminal tribunal.

Author:Meron, Theodor
Position:Hudson Lecture - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

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.

HUDSON LECTURE

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. Although the laws of war and humanitarian law had developed significantly in the half-century preceding the establishment of the Nuremberg and Tokyo tribunals, enforcement had lagged behind. Although there were some efforts to create a similar mechanism after World War I, it was not until the end of World War II that humanitarian law was ever successfully enforced in international criminal courts.

Although Nuremberg was the principal ancestor of the modern ad-hoc tribunals, when they were established, it was neither possible nor desirable to simply clone the Nuremberg model. The Nuremberg tribunals were established by occupying powers, and they tried members of a regime that had been completely defeated. Because the allies had total control over German territory, they had little difficulty arresting indictees, seizing evidence, or compelling the production of documents in government archives. Moreover, for the most part, defendants could not intimidate witnesses or pose an immediate continuing danger to society.

The modern ad-hoc tribunals, by contrast, were established by the United Nations, which lacks direct control over most places where suspects or evidence are to be found. Gathering evidence, making arrests, and protecting witnesses thus pose serious challenges. The cooperation of national governments in these tasks is essential--but these same governments often have interests at stake m the cases, and sometimes have strong links to the suspects themselves. The ad-hoc tribunals derive their authority from Chapter 7 of the UN Charter--which gives the Security Council the power to respond to threats to international peace and security--and the tribunals' statutes require UN member states to cooperate with requests for assistance. Yet compliance by some Balkan governments was, at least in the ICTY's early years, the exception rather than the rule. Furthermore, the ICTY was initially established while the conflict in the Balkans remained ongoing, which presented obvious practical complications. In Rwanda, cooperation was suspended when the Prosecutor tried to investigate crimes alleged to have been committed by the Tutsis.

Recently, however, enhanced cooperation by governments in the Balkans has made it easier to meet the challenges arising from the Tribunal's lack of police powers, as the arrest in Spain of former Croatian General Ante Gotovina, one of the ICTY's most wanted fugitives, illustrates...

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