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IN this essay I discuss my experience with war crime trials at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague and what implications that experience may have for future international criminal tribunals, whether temporary or permanent. I will begin with a brief tutorial on the Yugoslav tribunal.

The Yugoslav Tribunal

The ICTY was established by a United Nations Security Council resolution in 1993 as a 14-member court on which no country could have more than one judge. The judges are nominated by their respective countries for four-year terms and elected by the UN General Assembly. Subsequent amendments to the ICTY statute have enlarged the court to 16 members and provided a corps of 27 ad litem judges who come to The Hague for one or two trials but do not enjoy all the privileges of full-time judges. The mandate of the tribunal is to prosecute and try individuals for war crimes, crimes against humanity, and genocides (as defined in the statute) committed on the territory of the former Yugoslavia since 1991. Indictments are brought by the prosecutor, who is chosen by the Security Council. The tribunal is authorized to impose prison sentences up to life but not the death penalty; sentences are served within the prison systems of several nations with whom the tribunal has formal arrangements. The tribunal has no police force of its own and must depend on the cooperation of states and the Stabilization Force for Bosnia and Herzegovina (SFOR) for arrests, access to documents, and compulsory production of witnesses. The statute mandates such cooperation from all states but in practice cooperation is not always forthcoming. The tribunal is organized into three trial chambers and an appeal chamber, which also hears appeals from the International Criminal Tribunal for Rwanda (ICTR), located in Tanzania. Judges sit in trial panels of three on individual cases. The statute provides for an independent Office of the Prosecutor (OTP) and a registry to provide logistic support for the tribunal, such as filing, translation, defense services, press and public relations, legal assistance, and security. The ICTY currently has over 1,000 employees and an annual budget of more than $100 million.

What has the tribunal accomplished in its nine years? It has indicted over 80 defendants publicly (along with an unpublicized number of secret indictments), completed the trials of over 30 people (of whom all but 2 have been convicted or pled guilty), and completed the appeals of 10 (of whom 7 are serving or are about to serve prison sentences; 3 defendants' convictions were reversed on appeal). Eleven defendants are currently on trial and 18 are in pretrial proceedings. The majority of those on trial or awaiting trial are in detention at The Hague, although a few are on provisional release to their home states.

Of course, the bare statistics do not tell the whole story. Apart from former Yugoslav President Slobodan Milosevic, who is now on trial, several other high-ranking military and civic leaders accused of war crimes or crimes against humanity committed during the conflicts in the 1990s involving Slovenia, Bosnia, Croatia, Serbia, and later Kosovo have been apprehended or voluntarily surrendered to the tribunal. These include General Radislav Krstic, commander of the Drina Corp, who has been found guilty of genocide in the Srebrenica massacres of as many as 8,000 young Muslim men in one week in 1995; Croatian General Tihomir Blaskic, found guilty of the dawn massacre of the village of Ahmici in which 100 Muslim inhabitants were slaughtered and their homes destroyed; General Stanislav Galic, who allegedly oversaw the shelling of civilians in Sarajevo; and numerous mayors and police chiefs of cities and villages in Bosnia who planned or implemented the expulsion of unwelcome ethnic groups from the territory and the imprisonment of thousands of civilians in inhumane conditions in the so-called collection centers that sprang up throughout Bosnia in 1992. It is unfortunately true that two of the most notorious indictees, President Radovan Karadzic of the Bosnian Serb Republic and Ratko Mladic, former commander of the Bosnian Serb army, remain at large, but it is nonetheless difficult to deny that a significant number of the civic and military leaders in the conflict--on all sides--who are accused of committing or permitting those under their supervision to commit crimes violating the laws of war, humanity, and genocide have been brought to The Hague to stand trial. Even critics of the tribunal would, I believe, admit that a strong signal has been sent that national leaders may not with impunity violate the laws of war and the rights of innocent civilians and not undergo the risk of substantial punishment. Except for the Nuremberg and Tokyo tribunals, which were held in the brief period immediately following World War II, and a few scattered national court prosecutions for war crimes undertaken in the interim 50 years, that risk was not present before.

Problem Areas for Future Tribunals

A Remoteness from the Places and People Most Affected

The ICTY has not been without critics. While I believe it has demonstrated its ability to hand down reasonably coherent judgments based on international humanitarian law and to midwife constructive new developments in that area (such as the belated recognition of crimes against women committed in wartime as worthy of prosecution in their own right, as well as an overall ability to provide the fundamental guarantees of a fair trial to indicted war criminals), the ICTY's proceedings have been time consuming and expensive. Moreover, the ICTY has elicited criticism--particularly in the Balkans--for being too remote, both in geography from the locale and from the population affected by the wartime violations, and for not including any members of the ethnic groups involved in the Bosnian war as members of the court. However, the Rwandan court has several members from the African continent and is located in Tanzania, just across the border from Rwanda. Later temporary courts set up to deal with war crimes in East Timor and Sierra Leone are of a hybrid national-international character and draw a substantial number of their judges from the home countries involved and presumably many members of their staff as well. These courts are specifically designed to be eventually integrated into the national system of justice of the country involved--they are not, like the ICTY or the ICTR, creatures of the UN and principally financed by it. They are definitely transitional, operating under an arrangement with the UN and with the participation of international judges but relying on the country's own personnel and resources in the long run. The permanent International Criminal Court (ICC) is of course a different matter; it will be located in The Hague but will draw upon judges and personnel from among its more than 80 participating countries around the world. The ICC, again unlike the Yugoslav and Rwandan tribunals, will operate on the jurisdictional principal of complementarity--that is, the court will only take cases of violations of the law of war or crimes against humanity or genocide if the national authorities who would normally have jurisdiction either cannot or will not prosecute them. (In the case of the ICTY and ICTR, the international tribunals must first be given the opportunity to try the cases within their substantive jurisdiction but could remand them to national jurisdictions under a rules of the road protocol if the international tribunal did not wish to prosecute.)

This trend toward bringing international courts closer to home both geographically and operationally comes from an increasing sense that to the maximum extent possible individual national court systems should handle such cases. That way the populations most affected--including victims--will feel closer to the process and it will be more transparent to them; it is also more likely to be less expensive and will have the additional benefit of catalyzing the judicial and organizational reforms necessary to create such a capacity in other parts of underdeveloped national court systems.