The Journal of Appellate Practice and Process Volume 3 Issue 2 Article 16 2001 Appeals in the AD HOC International Criminal Tribunals: Structure, Procedure, and Recent Cases Mark A. Drumbl Kenneth S. Gallant Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess Part of the Criminal Law Commons, and the International Law Commons Recommended Citation Mark A. Drumbl and Kenneth S. Gallant, Appeals in the AD HOC International Criminal Tribunals: Structure, Procedure, and Recent Cases, 3 J. APP. PRAC. & PROCESS 589 (2001). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol3/iss2/16 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. THE JOURNAL OF APPELLATE PRACTICE AND PROCESS ARTICLES APPEALS IN THE AD HOC INTERNATIONAL CRIMINAL TRIBUNALS: STRUCTURE, PROCEDURE, AND RECENT CASES Mark A. Drumbl and Kenneth S. Gallant* INTRODUCTION Two international criminal tribunals are developing and re- making much of international humanitarian law-the law of genocide, crimes against humanity, and war crimes. These are the International Criminal Tribunal for the Former Yugoslavia * Mark A. Drumbl is an Assistant Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. Kenneth S. Gallant is a Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. The authors wish to thank Stuart Beresford, Andrea Carcano, and Xavier Tracol for their very helpful comments on an earlier draft of this article. Any remaining errors are the authors' own. THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 3, No. 2 (Fall 2001) THE JOURNAL OF APPELLATE PRACTICE AND PROCESS (" ICTY")' and the International Criminal Tribunal for Rwanda ("ICTR" ). For the first time, appellate practice and procedure have become vital to the development of international humanitarian law. These two ad hoc Tribunals have substantial appellate as well as trial jurisdiction. In this, they are quite different from their historic predecessors, the International Military Tribunals at Nuremberg and Tokyo following World War II, which had no appellate jurisdiction or appellate courts. The appellate jurisprudence of these new Tribunals is contributing to the growth of international law, both in international fora and in the domestic courts of many nations.3 The Tribunals are unusual in that they have common judges in their Appeals Chambers and have a single Prosecutor, based in The Hague, Netherlands. The current Prosecutor is Carla Del Ponte of Switzerland. Each of the Tribunals operates separate Trial Chambers and a separate Registry (the ICTY in The Hague, Netherlands; the ICTR in Arusha, Tanzania), and the Deputy Prosecutors are different in each. They also have separate subject matter mandates, in that they have jurisdiction over crimes committed in different places and at different times, and, to some extent, the crimes within the jurisdiction of each Tribunal are different. Both the ICTY and the ICTR have issued important judgments. In so doing, they have clarified the statutory and general law governing military behavior, human rights, crimes I. Formally, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. See S.C. Res. 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993) (approving and adopting Report of the Secretary-General pursuant to Paragraph2 of Security Council Resolution 808 (1993) [hereinafter Secretary- General's Rep.], U.N. Doc. S/25704 & Add. 1 (1993) (setting out, as an Annex to the Report, the Statute of the ICTY [hereinafter ICTY Statute]), as amended). 2. Formally, 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 I January 1994 and 31 December 1994. See S.C. Res. 955, U.N. SCOR, 49th Year, 3453d mtg. at 1, U.N. Doc. S/RES/955 (1994) (setting out as an Annex to the Resolution the Statute of the ICTR [hereinafter ICTR Statute]), as amended. 3. See infra nn. 9-13, 353-56, and accompanying text. APPEALS IN THE AD Hoc INTERNATIONAL CRIMINAL TRIBUNALS 591 against humanity, and genocide (as well as defenses to these charges), thereby establishing a strong foundation for the eventual permanent International Criminal Court contemplated by the Rome Statute of the International Criminal Court.' Looking more at the short term, though, successes with this ad hoc approach to promoting accountability for mass violence have prompted calls for the establishment of similar tribunals for Cambodia, Sierra Leone, and East Timor. These ad hoc tribunals will remain necessary at least until the International Criminal Court (which will have only prospective jurisdiction5) comes into existence. There also have been suggestions that ad hoc tribunals be established to adjudge some or all of those responsible for the September 11, 2001 attack on the United States.6 Part I of this Article introduces the Tribunals and addresses their unusual appellate structure, discussing both appellate jurisdiction and procedures and including changes the Security Council made to the appellate structure in 2000.' Part II summarizes the work of the Appeals Chambers in its review of some important trial decisions of both Tribunals from January 2000 to Fall 2001.' Given that nearly all ICTY and ICTR trial 4. U.N. Doc. A/CONF. 183/9, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998, as corrected by the proc~s-verbaux of November 10, 1998 and July 12, 1999 [hereinafter ICC Statute]. As of April 30, 2001, thirty nations had ratified the ICC Statute, out of sixty required for the International Criminal Court to come into existence. Well over one hundred nations have signed the Statute. The United States signed the ICC Statute on December 31, 2000. The ICC Statute has not yet been submitted to the Senate for ratification, and the current administration has no plans to do so. See H.R. Subcomm. on Com., J., State & Jud. of the Comm. on Appropriations, Hearings on Fiscal Year 2002 State Department Appropriations, 107th Cong. (Apr. 26, 2001) (testimony of Secretary of State Colin Powell). 5. ICC Stat. art. 11. 6. If this proves to be the case, the ICTY and ICTR will serve as crucial precedents. 7. S.C. Res. 1329, 4240th mtg., S/RES/1329 (Nov. 30, 2000) and Annexes, amending ICTY Stat. arts. 12-14, and ICTR Stat. arts. 11-13. 8. Our choice here is temporal and not hierarchical. Many Appeals Chambers decisions issued prior to 2000 are particularly germane to the development of international humanitarian law. These groundbreaking early decisions are amply discussed in the academic literature (for example, the ICTY Tadic interlocutory appeal on jurisdiction and the Tadic decision itself, which resolved the question of whether the Bosnian conflict was internal or international). See infra n. 258 and accompanying text. THE JOURNAL OF APPELLATE PRACTICE AND PROCESS judgments have been appealed, the Appeals Chambers play a central role in the functioning of the Tribunals. Important use is being made of the appellate jurisprudence of the Tribunals. Judgments are being used as precedent within the Appeals Chambers and by the Trial Chambers.9 The jurisprudential effect of Appeals Chamber decisions (and the Statutes creating the Tribunals) also is being felt in national courts.'0 Within the United States, however, the national use of 9. See infra Part I(D)(4), discussing Prosecutor v. Aleksovski, IT-95-14 (ICTY App. Chamber 2000). Although this may not seem newsworthy to a common law lawyer, the emergence of stare decisis within the Tribunals is an important development in international law. Compare e.g. ICC Stat. art. 21 (created after several years of operation of the ad hoc Tribunals, permitting the use of precedent) with e.g. Statute of the International Court of Justice, art. 59 (entered into force Oct. 24, 1945) [hereinafter ICJ Statute] (stating that a decision is not binding except between the parties and in respect of the particular controversy). Unlike its use in common law countries, use of judicial precedent is not at the core of the civil law legal tradition. The Tribunals represent an admixture of civil law legal systems and common law systems. The civil law approach, which dominates Western and Eastern Europe, Central and South America, and other areas including the Middle East and Asia, can be distinguished from the common law in a variety of ways, including that the civil code is the principal source of law that judges are to apply to a given dispute before them. As the logical thought process in the civil law system is deductive (going from the code provision to the dispute before the judge) and not inductive (analogizing from prior and similar fact situations to resolve the dispute before the judge), the usefulness of precedent is lower. Although some areas of law in civil law countries have developed through judge-made law, express acknowledgment of the precedential value of cases by courts remains the exception rather than the rule. For greater discussion of the differences between the common law and civil law, see Peter Stein, Roman Law, Common Law, and Civil Law, 66 Tul. L. Rev. 1591 (1992). 10. See, for example, the judgment of the House of Lords in Regina v. Bartle, 38 I.L.M.