International and Mixed Criminal Tribunals

• Author: Mark Freeman, Gibran Van Ert
• Pages: 467-490

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.

A.

Ad Hoc

International Criminal

Tribunals

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

467

INTERNATIONAL AND

MIXED CRIMINAL

TRIBUNALS

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

(http://www.hrw.org).

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

Yugoslavia

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 http://www.icty.org. 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.