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61
Bull, The Anarchical Society, 3rd ed. (2003).
41
River of Justice

Even though states answer to no higher authority (they exist in anarchy), they
can constitute a society because, being human institutions, they inherently
ascribe to these common human understandings, and within such a society,
law is possible but very limited. The ICC Statute was negotiated, and the
Court has come into existence. However, the Statute includes strong pro-
tections for state sovereignty, in the forms of limited Court jurisdiction,
checks on the Court™s independent power, and the necessity of states™
cooperation for the ICC to succeed.


Neoliberal Institutionalists
Neoliberal institutionalists explain law as a tool to reduce the realm of
disorder in international relations, making it a pragmatic step for states
concerned not only with relative power, but even more with absolute well-
being. Legal institutions arise as states seek to stabilize their relations by
replacing power political con¬‚ict with orderly legal processes “ labeled by
some observers the process of ˜˜legalization.™™62 Once state interests have
been de¬ned (a process described by the constructivists when norms, rather
than material objectives, are the interests) and protected (as realists
explain), the neoliberal institutionalist framework is most useful to explore
the subsequent pattern of organization construction and the operational
challenges and dynamics of the organizations thus created.


The River of Justice
The river of justice widened from the in¬‚ow of norms as people broadened
their conceptions of what it is to be human and to be civilized. They shaped
their identities around consensus over an expanding set of normative con-
ceptions. The currents included people™s rights as against sovereigns, the
ethic of accountability, and the social responsibilities of both retributive and
restorative justice, all while maintaining the institution of state sovereignty.
Once the norms were established and institutionalization began, in the form
of international negotiations, the problem was to craft a statute that would
incorporate these streams and be capable of implementation by an inter-
national organization. Prototypes for a statute already existed in the ILC
drafts, and in the statutes and rules of the two ad hoc criminal tribunals,
which are the topics of Chapter 2.


62
Abbott et al., ˜˜The Concept of Legalization™™ (2000), 401“19.
2

Learning from the Yugoslavia and Rwanda Tribunals




Reacting to murderous con¬‚ict and genocide in Yugoslavia and Rwanda,
the Security Council created the ¬rst international criminal tribunals since
Nuremberg and Tokyo. At the same time, the ICC Statute discussions con-
tinued to percolate in the International Law Commission, among legal experts,
and within states and nongovernmental organizations. A community of
lawyers, activists, and international organization of¬cials interested in inter-
national criminal law congregated around the tribunals and sought to instill
their expertise and experience into the construction of the ICC Statute. The
leading lesson of the tribunals was that, in contrast to Cold War intransigence,
Security Council members could agree to create international criminal tribu-
nals, and then agree on the mechanisms needed to establish and operate them.
With help from states, suspects could be apprehended and brought to court. A
paramount negative lesson was that state cooperation, especially for providing
¬nancial support and for bringing suspects to court, was crucial but not easily
obtained. The tribunals struggled to recruit, retain, and manage staff, lawyers,
and judges and to meld the skills of people from differing legal and social
backgrounds into effective organizations.
Once the tribunals began operating, many people in former Yugoslavia and
Rwanda remained suspicious, believing the tribunals were illegitimate,
politicized, and biased. Those interested in cooperating with the tribunals
feared retribution, witness protection was problematic, and potential wit-
nesses often refused to cooperate. Organizationally highly independent from
the rest of the United Nations, the tribunals™ management of ¬nances, records,
and personnel was chaotic and, in some cases, corrupt.
Although the tribunals operated during intense ICC Statute negotiations,
not all their lessons were learned quickly or clearly enough to be

42
43
Learning from the Yugoslavia and Rwanda Tribunals

incorporated in the Statute. Some of the tribunals™ shortcomings were
reproduced in the Court, but some ¬‚owed from the existential contra-
dictions embedded in institutions of international justice and thus were
perhaps unavoidable for both the tribunals and the ICC.
This chapter discusses the tribunals™ mandates, organization and leader-
ship, tribulations, and innovations. It focuses on the experiences of the
tribunals most instructive to the ICC, those recognized early on and incor-
porated into the ICC, and those understood subsequently that affect the
ICC™s operations. In conclusion, I argue ¬rst that creation of the tribunals
was motivated more by decision makers™ identities (as constructivists would
argue) than from materially de¬ned national interest (that realists would
expect). Second, I contend that, as neoliberal institutionalists would predict,
the tribunals acquired a momentum of their own that affected states™ decision
making. Third, I maintain that political and organizational dynamics con-
stitute limiting conditions for all organizations, including those pursuing
nonmaterial objectives. The chapter ends with an overview of how the ICC
Statute negotiators responded to the tribunals™ perceived shortcomings.


THE TRIBUNALS™ MANDATES

The UN Security Council created the International Criminal Tribunal for the
Former Yugoslavia and the International Criminal Tribunal for Rwanda in
response to speci¬c events and for limited purposes. The ICTY was created in
1993 to pursue individuals suspected of committing war crimes, genocide, and
crimes against humanity in the context of con¬‚icts in former Yugoslavia from
1991 onward. Even while the ICTY began to operate, the wars rumbled on,
and further crimes were being committed. Although the tribunal™s proponents
hoped that the ICTY would help to deter crimes by making potential perpe-
trators aware they might face international justice, detractors claimed the
tribunal was just a ¬g leaf for major power inaction to stop the con¬‚ict.
The Security Council created the ICTR in 1994 in the wake of the
genocide in Rwanda. The mass killings (of more than 800,000 people) were
over by the time the Rwanda tribunal was set up, so unlike the ICTY, it was
engaged in retrospective justice. Similar to its action in creating the ICTY,
though, the Security Council™s decision to establish the ICTR followed
failures to take action that might have prevented the killings or reduced the
magnitude of the carnage.
Both tribunals appeared to be motivated by leaders™ guilt. The failures to act
were not due to a paucity of options or to misunderstanding of what was
transpiring “ intelligence organizations and decision makers in major states had
44 Building the International Criminal Court

excellent information about events in both Yugoslavia and Rwanda before and
during the events for which prosecutions were eventually instituted.1 The
problem was a lack of political will to intervene and a failure to be decisive.
Realist calculations “ insuf¬cient interests at stake for countries capable of
intervening in the con¬‚icts “ prevented the UN or other organizations from
devoting signi¬cant political or material resources to intervention. The failure to
act, however, was increasingly embarrassing to leaders as their publics became
aware through media (especially television) reports about what was going on.
Although national (system-level) interests were not engaged, domestic political
concerns eventually drove states in the Security Council to establish the two
tribunals. Even this measure (in the Yugoslavia case) was taken only after
resistance to it was skirted through private initiatives (in support of M. Cherif
Bassiouni™s Experts Commission, described further later), and nongovern-
mental organizations™ efforts explicitly to make inaction a political liability.2
Both tribunals were given the power to prosecute persons ˜˜responsible
for serious violations of international humanitarian law.™™3 The tribunals™
statutes differed from each other slightly because the ICTY dealt with both
international and internal con¬‚ict, while the Rwanda tribunal dealt only
with crimes committed in a noninternational con¬‚ict. When the Security
Council ¬nally established the Yugoslavia tribunal,4 the justi¬cation was
that the criminality taking place in the region constituted ˜˜a threat to
international peace and security,™™ and that putting an end to such crimes
would ˜˜contribute to the restoration and maintenance of peace.™™ This
justi¬cation enabled the tribunal to be created on the basis of UN Charter
Chapter VII, International Peace and Security, and as a Security Council
resolution, all UN member states were bound to cooperate.
Similarly for Rwanda, the Security Council resolved that a failure to
punish the crimes of 1994 would be a threat to peace and security; however,
the resolution included a new, restorative justice element:5 ˜˜The prosecution

1
See Williams and Scharf, Peace with Justice (2002), 48; Melvern, Conspiracy to Murder
(2004), 128.
2
See Human Rights Watch, War Crimes in Bosnia-Hercegovina, Volume I (1992), HRW
Index No. 0839.
3
Statute of the ICTY, Article 1; Statute of the ICTR, Article 1.
4
UN Security Council Resolutions 808 and 827 of 1993.
5
As noted in Chapter 1, retributive (old) justice refers to indicting, apprehending, charging,
trying, and sentencing of criminals in order to punish and deter criminality. In retributive
justice, victims can serve as witnesses but are not a primary focus of legal process.
Restorative (new) justice is victim-centered, seeking to restore victims to society, including
them in justice processes as participants, and mending the rent social fabric. See section
entitled ˜˜Justice Paradigm™™in this chapter.
45
Learning from the Yugoslavia and Rwanda Tribunals

of persons responsible for serious violations of international humanitarian
law would . . . contribute to the process of national reconciliation.™™6 Both
organizations™ mandates created implementation problems.
The Security Council left to the tribunal judges development of the tribu-
nals™ rules of procedure and evidence. By 1998, critics of the tribunals argued
that they were too independent of states™ oversight, and the judges had too
much latitude in their abilities to modify the rules under which they them-
selves, and the tribunals generally, proceeded. The negotiators of the ICC
Statute spelled out Court procedures in much greater detail than did the
tribunal statutes and shifted rule-making responsibility to the ICC™s quasi-
legislative organ, the Assembly of States Parties to the Treaty, rather than
leaving it (as in the tribunals) to the judges. (Considerable discretion remained
with the ICC judges, however, in their ability to interpret those rules.)
Because of uncertainties in Yugoslavia about the status and connections
of various ¬ghting groups to old and new political units, the distinction
between crimes committed in a context of international con¬‚ict and those
of internal con¬‚icts eroded. In a different way, but with a similar result, the
Security Council established an international interest in an internal con¬‚ict
by creating the Rwanda tribunal. The ICC Statute explicitly deals with both
kinds of con¬‚ict. The two tribunals broadened the scope of the crimes
prosecuted in part in reaction to victims™ advocacy groups that also pressed
restorative justice principles. The ICC Statute adopted a new (restorative)
justice logic, along with traditional (retributive) justice objectives, com-
mitting the Court to victim-centered justice.
Although major lessons from the tribunals were incorporated into the ICC
Statute, important differences remain. Perhaps most signi¬cantly, even though
the limited-purpose and temporary tribunals had formal jurisdictional pri-
macy over state procedures (under Security Council authority), the standing
ICC was to be complementary to (without primacy over) domestic jurisdic-
tions. Established under its own Statute, rather than under UN Charter
Chapter VII, ICC jurisdictional de¬nitions are quite different from those of the
two ad hoc tribunals and were highly controversial in negotiation.


ORGANIZATION AND LEADERSHIP

The international tribunals™ structures imposed management problems that
the ICC statute negotiators attempted to ameliorate, but they still plague
the Court. The ICC thus learned from the tribunals, but the lessons include

6
UN Security Council Resolution 955 of 1994.
46 Building the International Criminal Court

some dif¬cult truths. To expose these truths, this section ¬rst brie¬‚y describes
the structure of the tribunals and the Court. It then explains how this differs
from domestic court systems, the consequences of these differences, and the
nature and outcome of efforts to solve the problem in the ICC.


Tribunal and Court Structure
The two ad hoc tribunals™ statutes drew heavily on International Law
Commission drafts being developed for the ICC.7 The tribunals™ statutes
(like the 1994 ILC ICC draft) created tripartite organizations made up of
Chambers (judges), the Of¬ce of the Prosecutor (headed by the Chief
Prosecutor), and the Registry (headed by the Registrar).8 For the tribunals,
the judges are elected to four-year terms by the General Assembly from
a list supplied by the Security Council. These individuals, who were
nominated by the states, were to be persons of ˜˜high moral character,
impartiality and integrity and who possess the quali¬cations required in
their respective countries for appointment to the highest judicial of¬ces.™™9
The Security Council was supposed to consider judicial candidates™
experiences in criminal and international law, including international
humanitarian and human rights law, when nominating them for General
Assembly election to the tribunals™ chambers. The permanent judges elect
a President (to once-renewable two-year terms) who would preside over
the Appeals Chamber and would assign the other judges to Chambers.10
The judges ˜˜shall adopt rules of procedure and evidence for the conduct of
the pretrial phase of the proceedings, trials and appeals, the admission of
evidence, the protection of victims and witnesses and other appropriate
matters.™™11
The tribunals™ statutes describe the Of¬ce of the Prosecutor and the
Registries, the processes of investigation and indictment, trial proceedings,
accused™s rights, victim and witness protection, judgment, penalties,
appellate proceedings, review proceedings, enforcement of sentences, and
conditions for pardon or commutation of sentences. The Security Council
resolution requires states to cooperate with the international tribunals in the
investigation and prosecution of the accused, saying that states ˜˜shall
comply without undue delay with any request for assistance or an order

7
Schabas, An Introduction to the International Criminal Court, 2nd ed. (2004), 11.
8
Statute of the ICTY, Article 11; Statute of the ICTR, Article 10.
9
Statute of the ICTY, Article 12; Statute of the ICTR, Article 11.
10
Statute of the ICTY, Article 14; Statute of the ICTR, Article 13.
11
Statute of the ICTY, Article 15; Statute of the ICTR, Article 14.
47
Learning from the Yugoslavia and Rwanda Tribunals

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