International Criminal Tribunal for the Former Yugoslavia: Current Survey Conclusion As the above examination indicates, in the first three years of it s existence, the Tribunal has rendered an impressive number of rulings and substantive issues of international criminal law. A review of this jurisprudence shows the broad range of areas in which the Tribunal has had to operate and the extent to which it has been necessary for it to adapt and develop previously existing law in order to fulfil its mandate of rendering international justice. The Tribunal's procedural accomplishments are significant. It has adopted the first full set of rules for the conduct of international criminal proceedings. The Tribunal's Rules of Procedure and Evidence include procedural innovations, such as the Rule 61 procedure which is triggered in cases where the Tribunal is unable to obtain custody of accused persons. They also include rules that reflect international standards in traditional areas of criminal procedure, such as the accused's fight to have access to Prosecution documents. Finally, the Tribunal's Rules contain a handful of evidentiary provisions that cover matters such as the general criteria for admissibility and the grounds for exclusion of evidence. Moreover, the numerous decisions issued by the Tribunal's Chambers, which explain the working of these procedural mechanisms in an international setting, are an invaluable contribution to the maturation of this field of law. Numerous significant and difficult substantive issues of international law have been addressed in the Tribunal's decisions to date. In order to rule on these issues, the judges of the Tribunal have often had to combine and interpret norms that have developed in disparate fields of international law and which are not always compatible. The decisions rendered by the Tribunal's Trial and Appeals Chambers show the breadth of the sources of law from which the judges draw and which they must attempt to reconcile. The Tribunal has contributed to clarifying certain rules of general international law which had for too long not been the subject of any judicial pronouncement. One of the first petitions filed before the Tribunal in the Tadic case challenged the legality of its establishment by the Security Council. There was considerable question as to whether the Chamber could hear such a challenge. Dealing at length with this issue, the Tribunal's Appeals Chamber found that it had the right, under the principle of compétence de la compétence, to assess the legality of its establishment. In so doing, the Tribunal firmly asserted its independence vis-à-vis its 'creator', the Security Council. Such autonomy is vital for the Tribunal's credibility because it must be able to perform its judicial functions without fear of political pressure. The Appeals Chamber's decision on the legality of the establishment of the Tribunal is also remarkable because it marks one of the first developments by a judicial body of standards for reviewing the actions taken by the Security Council under Chapter VII of the United Nations Charter. The Tribunal's subject-matter jurisdiction was also questioned in the Tadic case. The Appeals Chamber painstakingly analysed the Tribunal's Statute and the corpus of relevant international humanitarian law to develop a systematic scheme for the assertion of the Tribunal's jurisdiction over the various categories of war crimes that are being prosecuted before it. Particularly innovative was the Tribunal's expansive reading of Article 3 of the Statute (violations of the laws of customs of war). The Appeals Chamber found that this Article encompassed all serious violations of customary and conventional international humanitarian law regardless of the nature of the conflict in which they were committed. Although the Chamber was cognizant of the difficulties faced in ascertaining the relevant norms, particularly where they are based on custom, it had the courage to venture into this area and thereby contribute to the evolution of the law of internal armed conflict. It is to be hoped that the Appeals Chamber's decision will prove to be a catalyst in efforts for the harmonization of the rules applicable in all types of armed conflicts. The interaction between the Tribunal's work and that of national courts is a central issue in deciding on the feasibility of international justice. The issue of the extent to which the Tribunal could require national courts to defer to its jurisdiction i.e., the 'primacy' of the Tribunal's proceedings over domestic ones - was raised in the Tadic and Djukic cases. The fullest explanation of the Tribunal's views is contained in the Tadic Appeals Chamber Jurisdiction Decision. Primarily practical concerns guided the Appeals Chamber's confirmation of the primacy of the Tribunal's jurisdiction over that of national courts. Such primacy was necessary to avoid easily foreseeable problems, such as forum shopping by indicted persons and spurious proceedings conducted to shield war criminals. The Tribunal's hands-on experience of dealing with this issue should serve as a guide to the General Assembly in the course of its work on the establishment of an international criminal court. The Tribunal can be regarded as the defender of international human rights standards in two respects. It was created to vindicate the human rights of the thousands of civilians who were the victims of war crimes in the former Yugoslavia and, as the first truly international criminal tribunal ever, it must itself be exemplary in its observance of international human rights standards relating to the rights of accused persons. The tension between these two roles is perhaps best reflected in the Tribunal's numerous decisions on the protection of witnesses. When the Prosecutor sought to keep secret from the accused, throughout the course of trial, the identities of witnesses, against him, the Tribunal was forced to reconcile the need to protect witnesses and thereby facilitate their being heard, with the requirement that it fully respect the defendant's fair trial rights. In conducting this balance, both of the Tribunal's Trial Chambers felt it necessary to free themselves - at least theoretically from the constraints imposed by other judicial bodies' interpretations of the fair trial guarantees of the ICCPR and the European Convention on Human Rights. The difficulty inherent in finding an equilibrium between the protection of witnesses and the rights of the accused is reflected in the varying decisions rendered on this issue by the two Trial Chambers. Trial Chamber II, which was the first to deal with the issue, has permitted witness anonymity during trial under certain conditions. Trial Chamber I, on the other hand, has appeared more reluctant to order anonymity beyond the pre-trial stage, but has not ruled out the possibility. In contrast to its treatment of protective measures, where the Tribunal felt it necessary to define its own course, it has closely followed the precedents set by other international judicial bodies in other areas. The Tribunal's decisions on issues such as provisional release of defendants and the conditions of detention of accused persons, for example, rely to a considerable extent on the standards articulated by the European Court of Human Rights. Based on the one sentencing conducted by the Tribunal thus far - in the Erdemovic case -it appears that the Statute and Rules provide only limited guidance and the Tribunal will have to develop its own practice in this regard. As in the Erdemovic case, where the Trial Chamber seized of the case drew on principles of international humanitarian law, criminal law and human rights law to determine the appropriate sentence, the Tribunal will have to combine various bodies of law to develop its sentencing practice. The International Criminal Tribunal for the Former Yugoslavia is still in its infancy. Certainly, its jurisprudence, which combines various strands of law, needs to be developed and tested further. It is beyond doubt that the Tribunal's accomplishments thus far are tremendous and its structure and jurisprudence provide a workable model for an eventual international criminal court. However, the well-known difficulties experienced by the Tribunal in obtaining custody of indictees also teach an important lesson for a future court. At the end of the road, any international criminal court must, in order to be successful, have an effective mechanism for arresting offenders and bringing them to trial.
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