Appeals in the ad hoc International Criminal Tribunals: structure, procedure, and recent cases.

AuthorDrumbl, Mark A.

INTRODUCTION

Two international criminal tribunals are developing and remaking much of international humanitarian law--the law of genocide, crimes against humanity, and war crimes. These are the International Criminal Tribunal for the Former Yugoslavia ("ICTY") (1) and the International Criminal Tribunal for Rwanda ("ICTR"). (2)

For the first time, appellate practice and procedure have become vital to the development of international humanitarian law. These two ad hoc Tribunals have substantial appellate as well as trial jurisdiction. In this, they are quite different from their historic predecessors, the International Military Tribunals at Nuremberg and Tokyo following World War II, which had no appellate jurisdiction or appellate courts. The appellate jurisprudence of these new Tribunals is contributing to the growth of international law, both in international fora and in the domestic courts of many nations. (3)

The Tribunals are unusual in that they have common judges in their Appeals Chambers and have a single Prosecutor, based in The Hague, Netherlands. The current Prosecutor is Carla Del Ponte of Switzerland. Each of the Tribunals operates separate Trial Chambers and a separate Registry (the ICTY in The Hague, Netherlands; the ICTR in Arusha, Tanzania), and the Deputy Prosecutors are different in each. They also have separate subject matter mandates, in that they have jurisdiction over crimes committed in different places and at different times, and, to some extent, the crimes within the jurisdiction of each Tribunal are different.

Both the ICTY and the ICTR have issued important judgments. In so doing, they have clarified the statutory and general law governing military behavior, human rights, crimes against humanity, and genocide (as well as defenses to these charges), thereby establishing a strong foundation for the eventual permanent International Criminal Court contemplated by the Rome Statute of the International Criminal Court. (4) Looking more at the short term, though, successes with this ad hoc approach to promoting accountability for mass violence have prompted calls for the establishment of similar tribunals for Cambodia, Sierra Leone, and East Timor. These ad hoc tribunals will remain necessary at least until the International Criminal Court (which will have only prospective jurisdiction (5)) comes into existence. There also have been suggestions that ad hoc tribunals be established to adjudge some or all of those responsible for the September 11, 2001 attack on the United States. (6)

Part I of this Article introduces the Tribunals and addresses their unusual appellate structure, discussing both appellate jurisdiction and procedures and including changes the Security Council made to the appellate structure in 2000. (7) Part II summarizes the work of the Appeals Chambers in its review of some important trial decisions of both Tribunals from January 2000 to Fall 2001. (8) Given that nearly all ICTY and ICTR trial judgments have been appealed, the Appeals Chambers play a central role in the functioning of the Tribunals.

Important use is being made of the appellate jurisprudence of the Tribunals. Judgments are being used as precedent within the Appeals Chambers and by the Trial Chambers. (9) The jurisprudential effect of Appeals Chamber decisions (and the Statutes creating the Tribunals) also is being felt in national courts. (10) Within the United States, however, the national use of Tribunal jurisprudence is at best inchoate. (11) In fact, it is fair to say that the Tribunals have a lower profile in the United States than in many other nations; accordingly, an important purpose of this Article is to increase awareness for the bench and bar within the United States (as well as other jurisdictions) of the Tribunals, their work, their structure, and their purpose. After all, these appellate decisions have a significant effect on customary international law, in particular those peremptory norms of customary international law from which no derogation is possible (jus cogens), which form part of the federal common law (12) and for which a private right of action may be implied in the event of an alleged violation. (13) As a result, the jurisprudence of the Appeals Chambers can be raised as persuasive authority in United States courts or offered as proof of the customary nature of an international legal rule.

Given the effects of globalization on the law, the types of claims that could invoke the areas of international law covered by ICTR and ICTY jurisprudence--genocide, crimes against humanity, and war crimes--are appearing more frequently on the dockets of United States courts. These sorts of claims include, but are not limited to the following:

* Claims regarding crimes against humanity arising from the September 11, 2001 terrorist attacks (and also any civil claims arising out of that tragedy); * Claims under the Alien Tort Claims Act (giving federal courts jurisdiction over claims brought by aliens for violations of the law of nations or a treaty of the United States); * Claims under the Torture Victim Protection Act (giving a right of civil action for damages against an individual who, under actual or apparent authority of any foreign nation, subjects an individual to torture or extrajudicial killing); * Restitutionary claims for slave labor and conversion (for example, arising out of World War II or other armed conflicts); * War crimes proceedings involving United States military personnel or foreign military personnel over which the United States has "effective control"; * Extradition claims; * Refugee, asylum, and immigration claims; and * Non-statutory tort claims (against foreign governments for human rights abuses and terrorism; against United States companies for environmental desecration arising out of their foreign operations; and possibly even by American citizens against United States authorities). This jurisprudence also should be central to instructing all branches of the armed forces on appropriate protocol and conduct. Accordingly, knowledge of and familiarity with the work of the Tribunals is of growing importance for effective judging and lawyering, even in domestic settings. Reviewing this jurisprudence, particularly in the area of sentencing, also can serve an illuminating comparative function for those operating within domestic criminal law or thinking about the ability of the criminal law to address hate crime. Finally, reviewing the structures of the Appellate Chambers can be insightful for domestic law reform and judicial reorganization efforts.

The authors also hope this Article will be useful as an introductory overview of the appellate process in the ICTY and ICTR for those counsel from any nation considering taking a case on appeal in the Tribunals. Such counsel should, however, take care to consult the Tribunals for updated information, as the Rules of Procedure and Evidence for both Tribunals have been in constant evolution since they were initially promulgated. (14)

  1. STRUCTURE, APPELLATE JURISDICTION, AND PROCEDURE IN THE AD HOC INTERNATIONAL CRIMINAL TRIBUNALS

    The Appeals Chambers of the ICTY and ICTR decide (1) judgment (conviction or acquittal) appeals; (2) sentence appeals; (15) (3) interlocutory appeals on jurisdictional matters and (in the ICTY only) procedural matters; (16) and (4) some special appeals. (17) By and large, they have spent much of their time on interlocutory appeals, though the scope of interlocutory appeals has recently been limited.

    The Appeals Chambers are unusually structured. Formally, each Tribunal has its own Appeals Chamber, and each Appeals Chamber is administratively served by the Registry of its own Tribunal. The two Appeals Chambers have common judges, however. A judge from either Tribunal who is appointed to the Appeals Chamber will hear appeals from the Trial Chambers of both Tribunals. (18) In terms of judgment appeals, the Appeals Chambers can review both findings of law and of fact, but the scope of that review is limited. There are no juries in ICTR or ICTY trials, (19) so judges are finders of fact as well as law at both the trial and appellate levels. The interlocutory appeals have been very important insofar as the Tribunals are new and as many procedural formalities have to be established by precedent. But several important judgment and sentence appeal decisions also have been issued. Because these decisions have widespread precedential and law-making influence, they shall constitute the focus of Part II of this Article.

    Both the ICTY and the ICTR have jurisdiction over a similar group of particularly heinous crimes, described as widespread, flagrant, and serious violations of international humanitarian law. (20) These crimes are genocide, crimes against humanity, and war crimes. Readers unfamiliar with the details of international criminal law may have difficulty separating these crimes, or they may view them as somewhat indistinguishable. There are very important distinctions between the members of this triumvirate of terror. Accordingly, these distinctions merit a brief review so that the jurisdiction and jurisprudence of the Tribunals can be better understood.

    Genocide means the killing of or causing serious harm to members of a national, ethnical, racial, or religious group with the intent to destroy that particular group, in whole or in part. (21) Proof of this mental element--the intent to destroy--is one factor that distinguishes genocide from crimes against humanity and war crimes. The violence in Rwanda was genocidal in nature (and the ICTR has issued several convictions for genocide). On August 2, 2001, the ICTY Trial Chamber convicted Bosnian Serb General Radislav Krstic of genocide for his role in the massacre of 7,000 Muslims in Srebrenica, a purported United Nations "safe haven" in eastern Bosnia. This was the first finding of genocide in Europe since World War II. Krstic was sentenced to...

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