Abstract
Considering the imminent closure of the International Criminal Tribunal for the former Yugoslavia (ICTY) and other ad hoc or temporary international tribunals, this book is without a doubt a timely contribution to the literature on the ICTY. Dedicated to the memory of the late Bert Swart, the third co-editor who originally proposed the idea of the book, The Legacy of the International Criminal Tribunal for the Former Yugoslavia seems an important collection of essays laudably attempting to capture the key developments, achievements and debates regarding the tribunal. The aim of the volume is to propose a series of critical reflections on selected topics of international criminal procedure and substantive law in light of the upcoming closure and legacy of the tribunal.
The book is divided into five parts: ‘A Distant Court’ (I), ‘Process and Rights: Three Views’ (II), ‘Battlefields’ (III), ‘Improvisation and Discovery’ (IV) and ‘Legacy in Bricks and Mortar’ (V). This review will focus on the role of the ICTY as an ad hoc tribunal and international organisation which is particularly interesting from an International Relations perspective, hence Parts I and V are discussed in more detail below. A reader with a purely legal perspective might well benefit particularly from detailed discussions of procedural and jurisprudential developments. Indeed, Part II presents three different perspectives on the ICTY’s procedural system and legacy (Chapters 3–5) while Part III exposes several contentious issues of procedural and substantive law, ranging inter alia from the crime of persecution and complicity in genocide, to regulation of defence counsel and proportional sentencing (Chapters 6–11). In Part IV several improvisations and discoveries at the ICTY are explored, for example, the right to self-representation, command responsibility and ‘special agreements’ between Conflicting Parties (Chapters 12–16). The overall organisation of the book, however, is not immediately persuasive. Indeed, some developments based on improvisation and discovery (Part IV) may explicitly touch on process and rights (Part II) and have become the ground for the existence of battlefields (Part III). The variation in the quality of the contributions and some significant overlap in these parts remain puzzling. The reader would at times appreciate a more coherent and prolific interplay of the overall 17 chapters to strengthen the impact of each chapter. A concluding chapter would also be very useful for drawing the different themes and perspectives together.
In Part I (Chapters 1–2) the complex issue of the tribunal’s impact and impact assessment are tackled and the ‘plethora of approaches, perspectives, methods and foci’ (p. 10) and ‘impact gap’ (p. 55) in the existing literature are highlighted. In Chapter 1, King and Meernik admirably address head-on the question of the assessment and measurement of the impact of the tribunal. They suggest assessing its impact by highlighting the facets of the tribunal’s judicial mandate, mirrored by four core missions, and the role of its local and international constituents. King and Meernik make a powerful argument that the ICTY principally acts in accordance with the interests of its international constituents because of its mandate and ‘institutional, political, and practical necessities inherent in its very nature and limits of its power’ (p. 8). The parsimonious approach of assessing impact in one critical area, here sentencing, albeit developing a broader conceptual framework, seems effective. In the following chapter, Clark also underscores the relevance of the impact question and proposes a different assessment of the ‘social impact’ (p. 63). In her fieldwork, based on a bottom-up approach, Clark finds little evidence that the ICTY has contributed to the restoration and maintenance of peace or reconciliation in Bosnia and Herzegovina. She uses three criteria, namely perceptions, acknowledgement/denial and inter-ethnic relations. The criteria selected, interview questions and sample used, however, appear rather narrow and shallow in order to fully capture the theoretical and methodological complexities of the so-called ‘impact question’. At least a critical discussion of such complexities would have been welcome.
The so-called residual mechanism which will carry out all residual functions, that is, the tribunal’s core judicial functions after its closure, is the central topic of Part V (Chapter 17). The title of this part (‘Legacy in Bricks and Mortar’) might be seen as misleading as the actual architectural legacy is not in the focus but rather the institution succeeding the ICTY, the residual mechanism. In Chapter 17, Acquaviva provides a detailed survey of the context of such a mechanism and eight potential residual functions identified in the UN Secretary-General’s Report of 21 May 2009. Striking an appropriate balance between due process or fairness and efficiency is rightly emphasised as a main challenge currently facing the ICTY. Acquaviva correctly underscores the importance of refraining from imposing an artificial final ‘expiry date’ (p. 536) for all tribunal activities. Due to the fast developments, such as Security Council Resolution 1966 (2010), establishing the International Residual Mechanism for Criminal Tribunals and the drafting of its Rules of Procedure and Evidence, some of the issues raised have been addressed (e.g. the institutional design and statute of such a mechanism), and other issues have proven to be outdated (e.g. the options of one or several residual mechanisms and the residual function concerning trials of ICTY fugitives since the remaining two fugitives were arrested in summer 2011). The ICTY branch of the International Residual Mechanism is due to start functioning on 1 July 2013 prior to the actual closure of the ICTY. Until then and beyond, certain issues addressed in the chapter remain very topical, such as the protection of witnesses and management and ownership of archives – just like the actual ‘legacy in bricks and mortar’ will too.
The book’s title suggests a far more comprehensive reflection on the nature and scope of the legacy of the ICTY than it ultimately delivers. Some important issues such as the ICTY’s outreach activities and own considerable legacy efforts (e.g. the two international legacy conferences organised in 2010 and 2011) are not given the attention they deserve in a book promisingly entitled The Legacy of the International Criminal Tribunal for the Former Yugoslavia. Also, the institutional interplay between the different tribunals is not fully addressed, although the ICTY legacy can hardly be seen in isolation from the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone or the International Criminal Court, to name but a few. It is puzzling that the notion of legacy and its ambiguous and complex nature are not addressed in sufficient depth. The term is not listed as a keyword in the index and, most strikingly, only occasionally the term is mentioned without substantive elaboration in the individual chapters, most often in the respective opening and closing paragraphs. For example, King and Meernik and Clark write first and foremost about ‘impact’ and Acquaviva about the ‘residual mechanism’ and it is unclear whether these terms are used interchangeably with the term ‘legacy’ or how their relation is perceived. The use and discussion of the term ‘legacy’ ultimately remains too vague, too often throughout the book.
Notwithstanding these shortcomings, Swart, Zahar and Sluiter’s edited volume is a welcome and topical addition to the field and has the potential to appeal to both scholars and students of international criminal law and international criminal tribunals and practitioners alike. Without doubt, it invites more questions than it answers but the key issues raised and discussed therein will remain central themes of future debates regarding the closure of the ICTY and other tribunals. This book makes an important contribution by being the first book-length scholarly attempt to take the topic of legacy in the context of international tribunals seriously and demonstrate the need for a more systematic analysis of the ICTY in terms of its impact, procedural developments, case law and residual mechanism. Given the arrests of the last two remaining fugitives, Ratko Mladić and Goran Hadžić, in the summer of 2011 and their forthcoming trials as well as other important ongoing trials, the perceptions, conclusions and debates regarding the ICTY will certainly continue to evolve over the next years and decades.