Early Release of Prisoners Decisions

This chapter describes the author’s own practice, as Court President, on early release of prisoners serving sentences imposed by the ICTY, ICTR, or the Mechanism, one which followed the practice of his predecessors. Early releases or pardons of prisoners are often delicate and controversial in nation-States. In international criminal tribunals, the political, national, ethnic and religious context makes early releases even more difficult and contentious. Interested States, victims’ organizations, NGOs and media often vent their anger at some releases by harsh attacks against the Presidents that rendered them. In Rwanda, early releases of persons convicted by the ICTR or the Mechanism have not been welcome. In the former Yugoslavia, convicted persons who have been released have often been celebrated upon their return to their own local and national communities. These releases have, however, been criticized by other communities in the former Yugoslavia.

From Classroom to a Criminal Courtroom

This chapter discusses the author’s transition from being a teacher to being an international criminal Judge. The life of a Judge is much more circumscribed by rules and traditions than the life of a teacher. Both national and international courts have typically adopted codes of professional and ethical conduct, which often include or are accompanied by disciplinary rules to ensure compliance and accountability. It is important to understand that the core mandate of an international criminal court is to try individuals within a governing legal framework and to determine whether—given the specific evidence presented and admitted by the court—the responsibility of an individual accused of international crimes has been established beyond reasonable doubt. The chapter then recounts the author’s experience as an international criminal Judge and assesses whether academics make good criminal Judges.

Trying Violations of Human Rights in International Criminal Tribunals

This chapter details the ways in which international criminal tribunals such as the ICTY have contributed to human rights law and protections. In construing the material elements of crimes under international humanitarian law, international criminal tribunals have had recourse to human rights law and jurisprudence, thereby strengthening human rights law and opening new avenues for its penal enforcement. The beginnings of these developments can be traced, first, to the drafting of crimes against humanity clauses in the Nuremberg Charter and, second, to the drafting of Common Article 3 of the Geneva Conventions. The tribunals have also made immense contributions to strengthening the proscriptions of rape as war crimes, crimes against humanity, and genocidal acts. With respect to persecution, the ICTY held that persecution is the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited as crimes against humanity.

Moving from Nuremberg to The Hague

This chapter examines how, appalled by the glaring impunity for gross violations of international humanitarian law committed in the course of the Yugoslavia fragmentation wars in the early 1990s, the author was among those who called for the establishment of a war crimes tribunal for the former Yugoslavia. A war crimes tribunal, sought by the U.N. Security Council, would be the first since the Nuremberg and Far East trials following World War II. The chapter then looks at the inadequacy of international humanitarian and criminal law recognized as applicable to non-international armed conflicts, focusing on the case of rape. It considers the establishment of the modern international criminal tribunals at The Hague and Arusha. The chapter also studies the ICTY, the ICTR and the International Criminal Court (ICC).

Judicial Independence and Impartiality

This chapter focuses on national and international concepts of judicial independence and impartiality. As the Bologna and Milan Global Code of Judicial Ethics (2015) makes clear, judicial independence requires that Judges be independent of the legislative and executive branches of the government. Clearly, international Judges must be entirely independent of both governments and international organizations in the performance of their judicial duties. And they must be impartial and avoid any conduct which might give an appearance of partiality; they must not sit on any case where there is a reasonable suspicion or appearance of partiality, and must treat the parties equally, with no partiality or prejudice, with no fear or favor. In international criminal tribunals, this requires treating equally the prosecution and the accused. The chapter then discusses judicial selection, judicial assignments, Court Presidents and judicial bias.

Roots

This chapter provides a brief biography of the author and his road to Judgeship. Being a Judge allowed him to put into practice his commitment to accountability, rule of law and due process. The chapter then sketches out the contours of international criminal justice. International criminal courts, in many ways, resemble criminal courts in national jurisdictions around the world. They weigh evidence, follow due process, ensure the parties are heard and apply and abide by the law and respect human rights. At the same time, international criminal courts—and the cases they hear—are extraordinary. Because of their unique role and the nature of the crimes charged, international criminal courts are also often seen as something more than criminal courts. Their judgements are sometimes expected to be definitive histories of the conflict.

General Gotovina

This chapter describes the controversial acquittal of General Ante Gotovina. The events giving rise to this case occurred between July and September 1995. During that time, Croatia initiated a military action called “Operation Storm” for the purpose of taking control of territory in the Krajina region of Croatia. Gotovina was a colonel-general in the HV (Croatian Army) during the Indictment period and was the operational commander of Operation Storm in the southern part of the Krajina region. The Trial Chamber found that Gotovina contributed to the joint criminal enterprise (JCE), the common purpose of which was to permanently remove the Serb civilian population from the Krajina region. The Trial Chamber consequently found Gotovina guilty under the first form of JCE of both persecution and deportation as crimes against humanity. It also found him guilty under the third form of JCE of murder and inhuman acts as crimes against humanity, plunder of public and private property and violations of the laws or customs of war. He was sentenced to a single term of 24 years’ imprisonment.

The Road Ahead

This chapter assesses whether international justice works. When the ICTY was established by the U.N. Security Council in 1993, followed by the establishment of the ICTR in 1994, to try individuals accused of war crimes, crimes against humanity and genocide (atrocity crimes), it marked in many ways a turning point in international law and relations. In the years that followed, the ICTY and the ICTR demonstrated in concrete terms that accountability for international crimes was possible, in full compliance with norms of fairness and due process, and it showed practically how this could be done. Taking stock of all the developments since the establishment of the ICTY, there is much to be heartened by. However, the fact remains that there is a huge gap between the actual accountability efforts undertaken and the far larger number of individuals who are believed to be responsible for atrocity crimes.

The Rule of Law, the Principle of Legality and Due Process

This chapter evaluates the rule of law, the principle of legality and due process. The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the early 1990s marked the dawn of a new era in international law and opened the way for the founding of a host of international and hybrid criminal tribunals, including the world’s first permanent International Criminal Court (ICC). Over nearly three decades, these international criminal tribunals have not only demonstrated that just and fair trials of some of the worst crimes imaginable are possible, they have also striven to serve as an embodiment of rule of law ideals—as highly visible examples of rule of law principles put into practice. The chapter then looks at the legality principle and due process. The legality principle, as enshrined in the principal conventions on human rights, is a basic component of the rule of law and serves as a fundamental check on the ability of courts to push the progressive development of the law, no matter how much the Judges of that court might believe that certain conduct deserves punishment.

Judicial Decision-Making and Deliberations

This chapter assesses judicial decision-making and deliberations. The success of international criminal courts depends in no small part on the transparency of proceedings and reasoning of the judgements. Transparency is essential to building public confidence in the fair administration of justice. It also serves as an important safeguard against judicial arbitrariness and helps to ensure not only the fairness of the proceedings but the independence and impartiality of the Bench. This commitment to transparency in court proceedings is not absolute, however. It is limited by other factors, such as the importance of protecting witnesses and victims and the requirement that certain information be kept confidential. The chapter looks at the process of decision-making in the ICTY, ICTR, and the Mechanism. It draws attention to four specific issues: the uniqueness of the tribunals and the impact of their special status on decision-making; the diversity of decision-makers at the tribunals; the diverse backgrounds of the tribunals’ Judges and staff; and the process of decision-making.