ICTY Global Legacy Conference

Introduction

The ICTY Global Legacy Conference took place in The Hague on 15 and 16 November. It brought together over 350 leading academics, international judges and practitioners, state representatives and members of civil society (see ICTY press release here). The event was nicely organized by the outgoing President Robinson and his team with the financial support of the governments of the Netherlands, Luxembourg, Switzerland, Korea, the Municipality of The Hague and the Open Society Justice Initiative. Due tribute was paid by many of the speakers to the work and contribution of the late Judge Antonio Cassese to the activity of the ICTY and more generally to international criminal justice. There were four panels focusing respectively on the following topics: the impact of the Tribunal’s substantive jurisprudence on the elucidation of customary international humanitarian law; the impact of the tribunal on the future of global justice and the advancement and enforcement of human rights; the interaction of common and civil law procedures in the work of the tribunal: efficiency and fairness in complex international trials; and the tribunal’s jurisprudential contribution to the clarification of the core crimes of genocide, crimes against humanity and war crimes. Each panel was composed of eminent legal scholars and practitioners who expressed their views on the topic assigned (for the full program of the conference see here). Regrettably though, since each panel had at least four participants, not enough time remained for discussions.

A glaring omission, which was pointed out by the participants during the discussion sessions, was that no single defence counsel or persons from the region were part of the panels. Maybe the Association of the Defence Counsel (ADC) should organize its own conference and focus specifically on the role of the defence in developing international criminal law and procedure and its contribution to the achievements of the tribunal? Given the gap in the literature, I’m already planning to edit a book together with other colleagues on this subject. A call for papers will be issued sometime early next year in this blog.

For the benefit of the readers of our blog I will briefly present some of the issues discussed that I jotted down during the conference, with the caveat that any mistakes in reporting are mine and I would appreciate them being brought to my attention so that I can rectify them. The proceedings of the conference will be made available by the ICTY at a later stage.

First Panel: the impact of the Tribunal’s substantive jurisprudence on the elucidation of customary international humanitarian law

Professor Abi Saab, former Judge of the ICTY, compared the different nature of custom in the 19^th century and in the 21^st century. He also pointed out the difficulties in establishing opinio juris for obligations of abstention, since it is difficult to establish when a State is acting out of an obligation or out of volition. In his usual eloquent manner, Professor Abi Saab spoke about the work of the ICTY in breaking the wall separating international armed conflict (IAC) and non-international armed conflict (NIAC) so as to increase the level of protection. The next speaker of the first panel, Professor James Crawford, asked whether custom can carry the weight it is supposed or required to carry in the judicial activity of the ICTY? He pointed out that in any event custom resolves a number of issues, such as reservations to treaties (jokingly pointing out that the ILC’s work on this topic has taken a good 15 years and about 15 million words); agreements between belligerents; and the issue of non-retroactivity of criminal law. Professor Crawford stated that there are at least ten substantial contributions of the ICTY to the interpretation and development of international law, including the definition of armed conflict (Tadic case); extending protection for civilians under IHL beyond the nationality link (Aleksovski case); closing the gap between NIAC and IAC in terms of protection for different categories of protected persons; joint criminal enterprise as a new mode of criminal responsibility separated in three categories (Tadic case); enslavement as a crime against humanity; the cross-border element with regard to deportation (Stakic case); the official capacity element in the case of torture and so on. Jean-Marie Henckaerts of the ICRC spoke about the synergy between the ICTY case law and the ICRC customary IHL study. He spoke about a number of relevant customary international humanitarian law rules used by the ICTY and also announced that the customary law database of the ICRC has been updated. As he put it, the ICTY examined the contours of a number of rules not tested or use before, such as for example the terrorization of civilian populations in the Galic case. Mrs. Mona Rishmavi spoke about some of the work done by the Office of the High Commissioner for Human Rights (OHCHR) in conflict areas which supports international human rights protection and international justice. That work includes reports of human rights violations, fact-finding missions under the special procedures, missions to investigate the situation in Libya, Ivory Coast, Syria, and Sri Lanka over the course of 2011, identifying and naming perpetrators, and dealing with reparations issues.

Second Panel: the impact of the tribunal on the future of global justice and the advancement and enforcement of human rights

Part of the discussion in this panel focused on lessons that can be drawn from the ICTY in terms of ensuring State cooperation. Mrs. Navi Pillay spoke about the ICTY in terms of global justice with a local impact. She also drew attention to issues of sentencing and early release for persons convicted by the ad hoc tribunals. Professor Diane Orentlicher said that only 15% of the citizens of the former Yugoslavia supported the tribunal on principled grounds and that the overwhelming majority of the Serbians are hostile to the ICTY. About two-thirds of the indictees of the tribunals are of Serb ethnicity. Orentlicher emphasized the role of the ICTY in helping for these post-conflict societies to face the past. Ambassador Stephen Rapp commended the fact that all 161 indictees of the ICTY are brought to trial, whereas there are nine persons at large for the ICC and a number of them for the ICTR. He pointed out at the effective use of economic aid and EU accession as a ‘carrot’ for ensuring State cooperation. Patricia Visers Sellers focused on gender crimes and the contribution of the ad hoc tribunals in developing this part of international criminal law through their case law. Professor William Schabas provided an interesting perspective on the ICTY as a mechanism of protection for minorities, by criminalizing ethnic cleansing. He also pointed out to the use of the ECtHR case law before the ICTY on the issue of anonymous witnesses in the case of Tadic.

Third Panel: the interaction of common and civil law procedures in the work of the tribunal: efficiency and fairness in complex international trials

The third panel focused on international criminal procedure and the interaction between the common and civil law. Unfortunately, I was not able to keep many notes on this interesting panel. In any case, Judge Orie pointed out the advantages and shortcomings of each system and how the Judges have had to amend the rules of procedure and evidence in order to cope with different situations. Judge McDonald pointed out that the rules were based on the US Federal Rules of Procedure and Evidence. There were a number of explanations as to why the rules were changed and how over time the procedure at the tribunal included more elements of the civil law system.

Fourth Panel: the tribunal’s jurisprudential contribution to the clarification of the core crimes of genocide, crimes against humanity and war crimes

Professor Paola Gaeta focused mainly on the crime of torture and the findings made in the Kunarac case. She stated that the Kunarac rationale on torture is controversial. As pointed out by her, torture can be seen as a war crime, as a crime against humanity and as a crime in itself under the 1984 Convention Against Torture. However, if torture were to become a crime in itself to be prosecuted before international courts, it necessarily has to retain the element of state official status of the perpetrator. Professor Rein Müllerson spoke about the work of the Commission of Inquiry on Kyrgyzstan and how this Commission made use of the legacy and tools of the ICTY.  Stephen Mathias pointed out that the ICC is benefiting from ICTY practice. He also commented that the responsibility to protect doctrine is an outgrowth of the culture of accountability developed by the establishment of the ad hoc tribunals.

Some concluding remarks

The outgoing President Robinson reflected of his efforts to attract the attention of UN member states to the issue of reparations for the victims of the armed conflicts in the former Yugoslavia. Less than a week before the ICTY Global Legacy conference (on 11 November 2011 to be precise), he brought this issue again to the attention of the General Assembly during his address to this organ of the UN. IOM is organizing a feasibility study on the establishment of a Trust Fund for the victims similar to that of the ICC. It remains to be seen what the results and the recommendations of this study will be. The President elect (and from 17 November President of the ICTY), Judge Meron, pointed out a number of contributions of the ICTY to the interpretation and the development of international law, such as those with regard to the issue of superior responsibility in the Celebici case, command responsibility for crimes committed in NIAC in the Hadzihasanovic case, fitness to stand trial in the Strugar case and so on. The ICTY Global Legacy conference concluded on 16 November. This conference provided a number of interesting insights on the work and activity of the ICTY since 1993 and also on judicial creativity at this tribunal (on judicial creativity generally see ‘Judicial Creativity at the International Criminal Tribunals’ by Shane Darcy and Joseph Powderly (eds.), OUP 2010).