International and Mixed Criminal Tribunals

AuthorMark Freeman, Gibran Van Ert
In this chapter we review the structure and mandate of the international
criminal tribunals now in operation. We also examine the three “mixed”
criminal tribunals that have been established in recent years in Kosovo,
Timor-Leste, and Sierra Leone. These various tribunals constitute the
leading edge in accountability concerning especially serious violations of
international human rights and humanitarian standards. They reflect a
paradigm shift in the international community, away from diplomacy and
toward legality. Despite limitations and imperfections, international and
mixed criminal tribunals have changed the face of international justice.
Ad Hoc
International Criminal
The International Criminal Tribunal for the former Yugoslavia (ICTY)
and the International Criminal Tribunal for Rwanda (ICTR) are the
only two contemporary ad hoc (that is, special purpose) international
criminal tribunals currently in existence.1We pay particular attention
chapter 17
1 In February 2004, Human Rights Watch published a comprehensive digest that
organizes all of the judgments of the ICTY and ICTR by topic. The digest, enti-
tled Genocide, War Crimes and Crimes Against Humanity: Topical Digests of the
Case Law of the ICTR and the ICTY, is available on the organization’s website
to the ICTY, which was the precursor to and model for the ICTR. Most
of the successes and challenges of the ICTY recounted below apply in
like manner, if in a different context, to the ICTR.
Both tribunals, but especially the ICTY, have had a profound impact
on the development of international criminal law and procedure. In
demonstrating that fair trials at the international level are possible, these
tribunals helped inspire states to establish the International Criminal
Court. Their cost and remote locations also influenced the development
of mixed criminal tribunals, which are more economical and more
directly linked to the strengthening of domestic justice systems.
1) The International Criminal Tribunal for the former
In 1993, in an unprecedented action made possible by the end of the
Cold War, the UN Security Council established the ICTY.2It was the
first international war crimes tribunal since Nuremberg and Tokyo.3
Responding to the deaths of hundreds of thousands of civilians in the
former Yugoslavia, the Security Council declared the war there a
“threat to international peace and security” under Chapter VII of the
UN Charter.4
Unlike the Nuremberg tribunal, the ICTY is internationally repre-
sentative in its composition and therefore less vulnerable to criticisms
of “victor’s justice.” It is composed of a staff of judges, prosecutors,
468 international human rights law
2 The ICTY’s website is On the ICTY generally, see R. Kerr,
The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law,
Politics and Diplomacy (Oxford: Oxford University Press, 2004); J. Ackerman &
E. O’Sullivan, Practice and Procedure of the International Criminal Tribunal for the
Former Yugoslavia (The Hague: Kluwer, 2000).
3 The international legal basis of the ICTY was challenged in the trial of the first
defendant. The ICTY Appeals Chamber, unsurprisingly, found that it had been
lawfully established by the Security Council. Prosecutor v. Tadic (1995), Case no.
IT-94-1-AR72, Judgment on Interlocutory Appeal, ICTY Appeals Chamber.
4 Two Security Council resolutions preceded the ICTY’s establishment: SC res. 771
(1992) (which declared persons responsible for grave breaches of the Geneva
Conventions individually responsible, and urged the collection of information
on such breaches) and SC res. 780 (1992) (which requested the Secretary-Gen-
eral to establish a Commission of Experts, which ultimately reported that wide-
spread grave breaches had been committed in the territory of the former
Yugoslavia). Subsequently the Council adopted SC res. 808 (1993), which called
for an international criminal tribunal and requested the Secretary-General to
submit a report on it. Finally, the Council adopted SC res. 827 (1993), which
approved the Secretary-General’s report and created the ICTY.

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