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South African Journal on Human Rights Volume 18, 2002 - Issue 4
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Original Articles

Ad Hoc Rules for Ad Hoc Tribunals? The Rule-Making Power of the Judges of the ICTY and ICTR

Mia SwartLeiden University; Attorney of the High Court of South Africa. The author was an intern in the Appeals Chamber of the ICTY in 2001.
(PhD Candidate)
Pages 570-589 | Published online: 02 Feb 2017

  • The ICTY'S RPE are available at http://www.un.org/icty/basis/rpe/IT32-rev19con.htm. The rules of the ICTR are available at http://www.ictr.Org/ENGLISH/Rules/260600/1.htm.
  • The exact denomination of the ICTY is the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991. The ICTY was established by the Security Council through Resolution 827 (1993) (25 May 1993) and functions under a Statute originally published as Annex to the Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993) S/25704 (3 May 1993).
  • The exact denomination of the ICTR is the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994.
  • The Secretary General's report (note 2 above) stated that ‘the judges of the international tribunal as a whole should draft and adopt the rules of procedure and evidence’.
  • The idea that the different functions of government should be divided amongst different organs of state (the Trias Politica) originated in the writings of Locke and Montesquieu. See Locke Two Treatises of Government (1690); Montesquieu De L'esprit des Lois (1738).
  • CJR Dugard International Law: A South African Perspective (2001) 2, 3. Dugard explains why the United Nations cannot be considered a world government — it lacks the power to direct states to comply with the law and it lacks a permanent police force to punish violations of the law. The United Nations can raise forces to police certain situations, such as the United Nations Protection Force in Yugoslavia (UNPROFOR) created to oversee the cease-fire in the former Yugoslavia, but there is no permanent force at the disposal of the Security Council that can enforce the decisions of the Tribunals.
  • The Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 808 S/25704 para 34 states that ‘the international tribunal should apply rules of the international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all states to specific conventions does not arise’.
  • The latest amendments were published on 12 July 2002.
  • According to Tavernier, the fact that the RPE is not subject to any monitoring on the part of the Security Council and has been amended on several occasions, may give rise to the impression of improvisation. P Tavernier ‘The Experience of the International Criminal Tribunals for the former Yugoslavia and for Rwanda’ (1997) 37 Int Rev of the Red Cross 606. See also the criticism of RH Haveman ‘The Principle of Legality’ in RH Haveman, J Nicholls & O Kavran (eds) Supranational Criminal Law: A System Sui Generis (forthcoming 2002).
  • When originally adopted on 1 February 1994, the RPE of the ICTY contained 125 rules. In July 2001 the number has risen to 153. G Boas ‘Development in the Law of Procedure and Evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court’ (2001) 12 Criminal LF 2.
  • See ‘The Anomalies of the International Criminal Tribunal are Legion’ (letter) The Times (17 June 1999).
  • The German scholar and criminal lawyer Anselm von Feuerbach gave this rule its Latin wording. A Von Feuerbach Lehrbuch des Gemeinen in Deutschland Geltenden Peinlichen Rechts (1812) para 20.
  • The Rules and Statute of the ICTY can be regarded as the ‘guiding norms’ of the Tribunal.
  • G Boas ‘Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility’ (2001) 12 Criminal LF 2.
  • The Appeals Chamber has observed that the ‘fair trial guarantees in Article 14 of the International Covenant of Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute’. Prosecutor v Tadic IT-94-1-72.
  • See IV below.
  • Article 14(1) of the Statute of the Special Court for Sierra Leone states that the RPE of the ICTR obtaining at the time of the establishment of the Special Court shall be applicable mutatis mutandis to the conduct before the Special Court. Article 14(2) states that the judges of the Special Court as a whole may amend the RPE or adopt additional rules where the applicable rules do not, or do not adequately, provide for a specific situation. The Special Court was established by Security Council Resolution 1315 (2000) of 14 August 2000 to prosecute persons for crimes against humanity and other serious violations of international humanitarian law within the territory of Sierra Leone. Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone UN Doc. S/2000/915 (4 October 2000).
  • The first eight sets of amendments to the ICTY Rules were incorporated in the initial ICTR Rules adopted in June 1995. During the second and third plenary sessions, the ICTR Rules were amended in response to the amendments to the ICTY Rules. V Morris & M Scharf An Insider's Guide to the International Criminal Tribunal for Rwanda (1998) 423. For the text of the amended rules, see UN Doc. ICTR/PLN-10-2-001 (1996) and UN Doc. ICTR/3/L.5 (1996). These amendments are reflected in Rules of Procedure and Evidence of the ICTR UN Doc. ICTR/3/Rev.2.
  • The term ‘internationalised court’ applies to courts being set up by joint efforts of the UN and national governments to try violations of international humanitarian law. This is happening in Sierra Leone and Cambodia. However, the effect of amendments to the ICTY Rules and ICTR Rules will most probably be felt only indirectly by these courts.
  • The rules adopted by the International Military Tribunal at Nuremberg offer little guidance since they were few and of a very general nature. The Nuremberg Tribunal was not to be bound by technical rules of evidence. It had to apply an expeditious and non-technical procedure, admitting all evidence deemed to have probative value. The Nuremberg Rules of Procedure consisted of 11 rules comprising little more than 4 pages of text. These rules were contained in the Nuremberg Charter which provided for the elaboration of somewhat more detailed procedural rules in a subsequent instrument. The rules of the Tokyo Tribunal were also very brief, constituting 9 provisions. See International Military Tribunal, Rules of Procedure (29 October 1945) in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law (1946–1949) 1(10) 19–23.
  • Morris & Scharf (note 18 above) 423.
  • Barayagwiza v Prosecutor, Decision (Prosecution's Request for Review or Reconsideration) ICTR-97-AR72, ICTR A. Ch (31 March 2000) (‘Barayagwiza Reconsideration Decision’).
  • The official reason for the confidentiality of these documents is not clear. Neither the legal officers nor the Press and Information Unit of the ICTY could provide me with a reason.
  • Barayagwiza v The Prosecutor ICTR-97-19-AR72 ICTR Appeals Chamber (3 November 1999) (‘Barayagwiza Decision’).
  • Rome Statute of the International Criminal Court UN Doc. A/CONF. 183/9; Rules of Procedure and Evidence UN Doc. PCNICC/2000/INF/3/Ad. 1 (12 July 2000) (officially called the ‘finalised draft text’, awaiting formal adoption by the Assembly of State Parties of the ICC).
  • The development of international human rights standards in the intervening years did however provide general standards of fair trial and due process in criminal proceedings before international criminal courts. V Morris & M Scharf An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1994) 175.
  • The ICTY was established by Resolution 827 of the UN Security Council (note 2 above).
  • Morris & Scharf (note 26 above) 177.
  • The ICTY Rules entered into force on 14 March 1994 in accordance with Rule 1 of the ICTY RPE.
  • Morris & Scharf (note 18 above) 181.
  • Unlike the approach at Nuremberg, which combined principles of civil and common law, the ICTY judges, in drafting the rules, decided to follow a largely adversarial, rather than inquisitorial approach. See UN Doc. IT/30 (1994).
  • The ICTY Statute is available at http://www.un.org/icty/basic/statut.html. The ICTR Statute is available at http://www.ictr.org/ENGLISH/basicdocs/statute.html.
  • See note 2 above.
  • Each country could nominate two people for the position of judge, one national and one non-national. The Secretary General prepared a list of 23 nominations. Upon approval by the Security Council the list was submitted to the General Assembly. The first 11 judges were elected on 15 September 1993. See SC Res. 857, UN SCOR, 48th Sess. 3265th mtg; MC Bassiouni & P Manikas The Law of the International Criminal Tribunal for the Former Yugoslavia (1996) 209.
  • Speech by Antonio Cassese at the meeting between Secretary General Kofi Annan and the judges of the ICTY (3 March 1997).
  • K Roberts ‘Aspects of the ICTY Contribution to the Criminal Procedure of the ICC’ in R May; D Tolbert & J Hocking (eds) Essays in ICTY Procedure and Evidence in Honour of Gabrielle Kirk MacDonald (2001) 569.
  • ‘[the] judges wish to encourage the Preparatory Commission to include a provision that would allow judicial participation with the Assembly of State Parties in the adoption of the Rules’. Contributions of the Chambers of the ICTY PCNICC/1999/WGRPE/DP.38 (13 August 1999) para 6.
  • Roberts (note 36 above) 572 compares the circumstances in which the ICTY were created to that of the ICC and states that, because of the larger number of states representing a broader background of legal systems and the political concerns involved, the drafters of the Rome Statute were more constrained by the need to compromise.
  • W Schabas An Introduction to the International Criminal Court (2001) 30. The Statutes of the ICTY and ICTR are largely similar. In addition, the two institutions share a prosecutor and an Appeals Chamber.
  • Statement of France UNSCOR, 49th Sess. 3453rd mtg 4; UN Doc. S/PV.3453 (1994) reprinted in Morris & Scharf (note 18 above).
  • For the dates of the adoption of rules and of amendments, consult the ICTR website: http://www.ictr.org.
  • The first eight sets of amendments to the Yugoslavia Tribunal Rules were incorporated in the initial Rwanda Tribunal Rules adopted in June 1995. Morris & Scharf (note 18 above) 422–23.
  • Bassiouni & Manikas (note 34 above) 278; Haveman (note 9 above) 28.
  • FA Allen The Habits of Legality, Criminal Justice and the Rule of Law (1996) 5.
  • Ibid.
  • Kelsen believed that an act attaching an ex post facto sanction is retroactive only from a legal, not a moral point of view. This, in his opinion, is particularly true of international treaties by which individuals are made responsible for having violated in their capacity as organs of the state, international law. He writes that morally, they were responsible for the violation of international law at the moment when they performed the acts constituting a wrong. The treaty only transforms their moral responsibility into legal responsibility. H Kelsen ‘Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals' (1943) 31 Calif LR 530, 544.
  • Catenacci discusses what he calls the ‘problematic side’ of the principle of legality. He writes that the necessity of prohibition by previous law makes the criminal system unable to comply immediately with the constant change in public opinion regarding the criminal character of conduct, often leading to a ‘fracture’ between the social and legal conscience. See M Catenacci ‘Nullum Crimen Sine Lege’ in F Lattanzi (ed) The International Criminal Court, Comments on the Draft Statute (1999) 162. Bassiouni & Manikas (note 34 above) 269 point out that international criminal conventions, for the most part, do not satisfy the requirements of the principle of legality.
  • MC Bassiouni Crimes Against Humanity in International Criminal Law (1992) 112.
  • Bassiouni & Manikas (note 34 above) 268.
  • Haveman (note 9 above) 43.
  • Although the ICTY and ICTR Statutes do not explicitly refer to the principle of legality, art 25 states that in determining the penalties imposed by the Tribunal, the Trial Chambers shall have recourse to ‘the general practice regarding prison sentences in the courts of the former Yugoslavia’. The ICTR Statute contains a similar provision. The word ‘Rwanda’ merely replaces ‘former Yugoslavia’. The principle of legality has however been included in art 22 of the ICC Statute.
  • Prosecutor v Tadic Decision on the Defence Motion on Jurisdiction IT-94–1 paras 51; 72–4.
  • It has been argued that the purpose of the statement of the drafters of the ICTY Statute that the Tribunal should apply customary international law was to avoid violating the principle of legality. The application of customary international law was meant to provide a ‘welcome degree of standardisation’ in the implementation of international humanitarian law. It can be asked whether the problems surrounding the application of the principle of legality are adequately dealt with in this way. G Mettraux ‘Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda’ (2002) 43 Harvard Int LJ 242.
  • Rule 6 reads: ‘(A) Proposals for amendment of the Rules may be made by a Judge, the Prosecutor or the Registrar and shall be adopted if agreed to by not less than seven judges at a plenary meeting of the Tribunal convened with notice of the proposal addressed to all judges. (B) An amendment to the Rules may be otherwise adopted, provided it is unanimously approved by the Judges. (C) An amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case’.
  • By August 2001 the ICTR Rules have been amended on 10 separate occasions, the ICTY Rules have been amended at 22 plenary meetings with 18 revisions of the rules and amendments taking place at almost all sessions.
  • Rule 6 was adopted on 29 June 1995 and has been amended on 5 July 1996, 8 June 1998 and 1 July 1999. Whereas the initial Rule 6 stated that proposals for amendment of the rules shall be adopted if agreed to by not less than seven judges at a plenary meeting, the amended text (of 1 July 1999) states that amendments should be agreed to by not less than 10 judges.
  • Bassiouni & Manikas (note 34 above) 827.
  • Interestingly, the ILC's draft statute for the ICC provided that the court's rules be drafted by the judges and submitted to a conference of state parties for approval. The ICJ Statute, however, does not provide for review of ICJ's rules by any other body. Ibid.
  • Ibid 824.
  • Amendments aimed at expediting proceedings at the pre-trial and trial phases were recently implemented by amending Rules 65 ter and 92 bis. Boas (note 12 above) 3.
  • See in this regard Barayagwiza v Prosecutor, Decision (Prosecution's Request for Review or Reconsideration) ICTR-97-AR72 ICTR A. Ch (31 March 2000).
  • See Prosecutor v Aleksovski (Decision on Prosecutor's Appeal on Admissibility of Evidence) IT-95-95-14/1-AR73 (16 February 1999) para 19.
  • These amendments were first reflected in Revision 13 of the rules, which is available on the ICTY website. For the current version of the rules, see http://www/un/org/icty/basie/rpe/IT32_rev21con.htm, and selected older versions at http://www/un/org/icty/basicl-e.htm.
  • The following Rules were amended: 11 bis; 15; 45; 47(F); 50; 62 bis; 65–6; 72; 73; 77; 85–8; 88 bis; 90; 94; 99–103; 108 bis and 111.
  • See letter dated 12 May 2000 from the President of the ICTY addressed to the Secretary General and enclosed report (hereinafter ‘the Jorda Report’) ann I to UN Doc. A/55/382-S/2000/865.
  • Boas (note 10 above) 1.
  • Morris & Scharf (note 18 above) 423.
  • In a similar tone, Justice Robert Jackson, the Chief Prosecutor at Nuremberg, in concluding his report on the Nuremberg Trials, acknowledged that ‘many mistakes have been made and many inadequacies must be confessed. I am consoled by the fact that in proceedings of this novelty, errors and missteps may also be instructive to the future’. See Report to the President by Mr. Justice Jackson (7 October 1946).
  • Address of Antonio Cassese, President of the ICTY, to the UN General Assembly (4 November 1997).
  • Morris & Scharf (note 18 above) 423.
  • D Mundis ‘The Legal Character and Status of the Rules of Procedure and Evidence of the ad hoc International Criminal Tribunals’ (2001) 4 Int Crim LR 191–239.
  • Ibid.
  • Amended Indictment The Prosecutor v Barayagwiza Case No. ICTR 97–19 (11 April 2000).
  • Decision on Extremely Urgent Motion by the Defense for Orders to Review and/or Nullify the Arrest and Provisional Detention of the Suspect The Prosecutor v Barayagwiza Case no. ICTR-97-19 (17 November 1998).
  • Barayagwiza Decision (note 24 above) para 113.
  • For a summary of the facts I relied on the judgements as well as on JK Cogan ‘International Criminal Courts and Fair Trials: Difficulties and Prospects' (2002) 27 Yale J of Int L 134, 135.
  • Barayagwiza Decision (note 24 above) para 46. Footnote 127 of the decision discusses the principle of effective interpretation (ut res magis valeat quam pereat) which the Appeals Chamber relied upon in deciding to read the two rules together and restrictively.
  • Ibid para 53.
  • Ibid.
  • Ibid para 54.
  • Ibid paras 55–60.
  • Mundis (note 71 above) 13.
  • Ibid.
  • As amended on 21 February 2000. Sub-rules 72(H) and (I) read as follows: ‘(H) For the purpose of Rule 72(B)(i) and (D), an ‘objection based on lack of jurisdiction’ refers exclusively to a motion which challenges an indictment on the ground that it does not relate to: (i) any of the persons indicated in Articles 1, 5, 6 and 8 of the Statute, (ii) the territories indicated in Articles 1 7 and 8 of the Statute; (iii) any of the violations indicated in Articles 2,3,4 and 6 of the Statute. (I) An appeal brought under Rule 72 (D) may not be proceeded with if a bench of three Judges, assigned by the Presiding Judge of the Appeals Chamber, decides that the Appeal is not capable of satisfying the requirements of paragraph (H), in which case the Appeal shall be dismissed’.
  • The review was filed pursuant to art 25 of the ICTR Statute.
  • The Appeals Chamber also found that the initial appearance of the Appellant was deferred with the consent of his counsel. In the opinion of the Appeals Chamber all of these facts diminished ‘the role played by the failings of the Prosecutor as well as the intensity of the violations of the rights of the appellant’. It was decided that if the appellant was found not guilty he should receive financial compensation for the violation of his rights. On the other hand, if he were to be found guilty, his sentence should be reduced to take account of the violation of his rights. See the summary of the case and commentary by B Swart in A Kip & G Sluiter (eds) Annotated Leading Cases of International Criminal Tribunals: Vol II The International Criminal Tribunal for Rwanda (2001) 199, 207.
  • Ibid 199.
  • Ibid.
  • Ibid.
  • Prosecutor v Kupreskic and Others Decision on Appeal by Dragan Papic Against Ruling to Proceed by Deposition IT-95-16-AR73.3, ICTY Appeals Chamber (15 July 1999) (‘Kupreskic Deposition Decision’).
  • Mundis (note 71 above) 200.
  • Kupreskic Deposition Decision (note 90 above) para 14.
  • One of the consequences of this amendment was to override a decision of the Appeals Chamber that a Chamber could not sit in deposition with less than a full bench over an objection by one of the parties.
  • Boas (note 10 above) 6–7.
  • For an extensive discussion of the history of this amendment, see Boas (ibid) 20–4.
  • Encompassing Rules 72; 73 bis; 73 ter and 90.
  • The file might include a report by the pre-trial judge, highlighting the issues which truly warrant litigation at trial. This is intended to give more teeth to the trial chamber's case management.
  • ICTY Press Release (16 July 1998).
  • This question was raised in Prosecutor v Tadic (note 52 above). For criticism, see J Alvarez ‘Nuremberg Revisited: The Tadic Decision’ (1996) 7 European J of Int L 245.
  • Haveman (note 9 above) 35.

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