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1. Limits of the Impact of the International Criminal Tribunal for the Former Yugoslavia on the Domestic Legal System of Bosnia and Herzegovina

Author:
Eszter Kirs
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Information is a fundamental resource in post-conflict societies. However, information-sharing may lead to both advantages and disadvantages. The main focus of the present paper is the flow of information and knowledge from the International Criminal Tribunal for the Former Yugoslavia (ICTY) to the domestic judicial system of Bosnia and Herzegovina. Following a brief introduction of the dynamics of the changing relationship of the Tribunal and the Bosnian judiciary, the paper aims to outline the positive achievements and the practical barriers of the international intervention into the management of war crime cases in Bosnia and Herzegovina. The paper introduces the practical problems that came forth with the introduction of the adversarial procedure in the domestic judicial system, by which measure international intervention might have gone too far resulting also in negative consequences with regard to the management of domestic war crime trials.
Political Geography:
Bosnia, Herzegovina, and Yugoslavia

2. Completing the ICTY Project Without Sacrificing its Main Goals. Security Council Resolution 1966 – A Good Decision?

Author:
Donald Riznik
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Almost two decades after having established the ad-hoc criminal tribunal for the former Yugoslavia, this institution is about to fulfill its mandate and will close its doors in the near future. Looking back on 20 years of legal and political struggle, the overall result of this institutional project is positive. This article analyses the way the Security Council and the ICTY have chosen to bring the tribunal to an end by implementing the Completion. The problematic aspect, the Security Council was faced with before its final Resolution 1966, adopted on 22 December 2010, has been outlined together with the chosen path to avoid commitments, especially with regard to its major goal to end impunity for serious breaches of international law, and to bring justice and peace to the people living on the territory of the former Yugoslavia. This (so far) last resolution, which implemented the International Residual Mechanism for Criminal Tribunals (IRMCT), was adopted at a time, when the last two remaining fugitives, Ratko Mladic and Goran Hadzic were still at large. Only a few months ago, the two were caught and transferred to the tribunal. The author argues that not shutting the institutional doors entirely until all remaining fugitives are arrested, was a complex situation in a legal and practical sense. Facing and solving this problem through Resolution 1966 was the best choice at that time. This article will give a brief description about the practical impact of the IRMCT on the ICTY's further work, and the relation between these two judicial institutions during their coexistence.
Topic:
Security and International Law
Political Geography:
Yugoslavia and United Nations

3. The International Residual Mechanism and the Legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda

Author:
Gabrielle Bardall
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
By Security Council Resolution 1966 (2010), the Security Council established the International Residual Mechanism for Criminal Tribunals as the legal successor to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In the creation of the Residual Mechanism, the Security Council appears to have intended to ensure the continuation of the work of the Tribunals and thereby safeguard their legacies. Accordingly, the Statute of the Residual Mechanism continues the jurisdiction of the Tribunals, mirrors in many respects the structures of the Tribunals, and ensures that the Residual Mechanism's Rules of Procedure and Evidence are based on those of the Tribunals. However, the Statute of the Residual Mechanism is silent with regard to the weight the Judges of the Residual Mechanism must accord to ICTY and ICTR judicial decisions. While there is no doctrine of precedent in international law or hierarchy between international courts, this omission by the Security Council does have the potential to negatively impact the legacies of the Tribunal by allowing for departures by the Residual Mechanism from the jurisprudence of the Tribunals, which lead to similarly situated persons being dissimilarly treated. Nevertheless, even if the Residual Mechanism does adopt the jurisprudence of the Tribunals as its own, as a separate legal body it will still have to answer constitutional questions regarding the legitimacy of its establishment by the Security Council. While it can be anticipated that the Residual Mechanism will find itself validly constituted, the wisdom of the Security Council's decision to artificially end the work of the Tribunals by the establishment of the Residual Mechanisms will ultimately turn upon the question of whether any inherent unfairness could be occasioned to persons whose proceedings are before the Residual Mechanism. It will be suggested that the Security Council has provided the Residual Mechanism with sufficient tools to ensure that its proceedings are conducted in para passu with those of the Tribunals and that the responsibility of ensuring the highest standards of international due process and fairness falls to the Judges of the Residual Mechanism.
Topic:
Security
Political Geography:
Yugoslavia and Rwanda

4. Tadic Revisited: Some Critical Comments on the Legacy and the Legitimacy of the ICTY

Author:
Mia Swart
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article will return to questions raised during the establishment of the ICTY and particularly the Tadic case. It will be argued here that the aspect of Tadic that remains unresolved is the fundamental question of whether the ICTY has been established legitimately. The legitimacy argument forms an important part of the legacy debate of the ICTY. Although the Tadic Appeals Chamber has formally answered the question of the legitimacy of the ICTY it will be argued that the reasoning of the Appeals Chamber was not sufficiently strong or persuasive. The legitimacy debate reflects the wider influence of the ICTY's jurisprudence since some of the arguments made by the Tadic Appeals Chamber have been replicated or repeated in the trials of Saddam Hussein and Charles Taylor. The legitimacy question is crucial since it affects the very foundations of the ICTY. If the legitimacy of the ICTY is not established satisfactorily, it affects how one considers the achievements mentioned above. In a sense the substantive and procedural achievements of the ICTY are dependent on the legitimacy of the ICTY. This article will consider the difference between the ICTY's self-perception and the way the work of the Tribunal over the last sixteen years has been perceived from the outside. The focus of the article will be on the lingering question of the legitimacy of the Tribunal. It has argued that legitimacy can also be acquired after the initial establishment. The article will consider whether the ICTY's initial defect in legitimacy could subsequently be remedied by the fairness of the proceedings and the moral power of the ICTY.
Topic:
Security
Political Geography:
Yugoslavia

5. The Legacy of the ICTY as Seen Through Some of its Actors and Observers

Author:
Frédéric Mégret
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article proposes an exploration of the 'legacy' of the ICTY through the experience of some of its actors and observers. It is based on material provided by a dozen interviews and written in the spirit of understanding the tribunal's legacy as a collection of complex individual narratives of what the tribunal stands for, what it did well, and what it might have done better. The legacy of the ICTY as an international criminal tribunal on the one hand, and as a device for transitional justice on the other hand are considered. Although a tension is found to exist between a more 'forensic' and a more 'transitional' view of its role which is particularly manifest in determining the tribunal's constituencies and policies, the two are also linked. There is broad consensus about the tribunal's importance, but on the eve of its closing, also a sense of the limits of what international criminal justice can aspire to achieve.
Political Geography:
Yugoslavia

6. The ICTY Legacy: A Defense Counsel's Perspective

Author:
Michael G. Karnavas
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The ICTY's achievements are as impressive as they are irrefutable. Less impressive is the uneven quality of procedural and substantive justice that the Tribunal has rendered. The author highlights several shortcomings at the Tribunal, including the appointment of unqualified judges, excessive judicial activism, its disparate application of law, procedure, and prosecutorial resources to different ethnic groups, and its tinkering with the rules of procedure to promote efficiency at the cost of eroding the fundamental rights of the Accused. Drawing on specific examples, from the approach adopted concerning the admissibility of testimonial evidence to specific areas of substantive law where judicial activism has been pronounced – the development of joint criminal enterprise and the requirements for provisional release at a late stage of the proceedings – this article is one defense counsel's perspective of some of the most unfortunate shortcomings of the ICTY, which regrettably form part and parcel of the Tribunal's legacy.
Topic:
Security and Law
Political Geography:
Yugoslavia and United Nations

7. The Winding Down of the ICTY: The Impact of the Completion Strategy and the Residual Mechanism on Victims

Author:
Giovanna M. Frisso
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Even though not clearly spelled out in its constitutive instrument, one characteristic of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is its temporary character. This characteristic presents the ICTY with a significant challenge, the complexity of which is increased by the fact that the tribunal has a multi-faceted mandate. This article examines the effects of the completion strategy of the ICTY on the victims of the crimes under its jurisdiction. Initially, it considers the impact of the completion strategy on the victims who participated, as witnesses, in the proceedings before the ICTY. It argues that the pressure to comply with the timeframe established by the Security Council has resulted in the reduction of the victims to their forensic usefulness. The victims were considered primarily in light of their instrumental relevance to the proceedings. Then, the article suggests, through the analysis of the referral of cases to domestic courts and the value of the archives of the ICTY, that the completion strategy can or might have a positive effect on the implementation of the rights of the victims who have not had direct contact with the ICTY. In this context, this article argues that the termination of the ICTY does not necessarily mean that the struggle for the implementation of the rights of the victims has finished.
Topic:
Security
Political Geography:
Yugoslavia