Table Of ContentSTANDING UP FOR JUSTICE
STANDING UP
FOR JUSTICE
T C T
he hallenges of rying
a C
TroCiTy rimes
THEODOR MERON
1
1
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DOI: 10.1093/ oso/ 9780198863434.001.0001
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Contents
Preface xi
PART I: SETTING THE SCENE
I. Roots: The Road to Judgeship 3
The Holocaust 4
And Life Goes On 7
The Palestine Opinions 9
In Academia 16
The International Committee of the Red Cross 17
The Dauchy Case 19
The State Department 20
Judgeships 21
Shakespeare 26
Oxford 29
Looking Back 29
II. From Classroom to a Criminal Courtroom 31
III. Moving from Nuremberg to The Hague 39
The Necessity to Establish a Tribunal for the Former Yugoslavia 39
State of the Law: The Example of Rape 43
Non- International Armed Conflicts 49
Nuremberg Proceedings 50
Moving Forward with the Law and Due Process 53
Justifying International Criminal Tribunals 65
PART II: PRINCIPLES, GOALS, PROCESSES
IV. The Rule of Law, the Principle of Legality and Due Process 69
The Rule of Law 69
Reifying Rule of Law Principles 71
vi Contents
Principle of Legality 73
Selective Accountability 91
Due Process 92
V. Trying Violations of Human Rights in International
Criminal Tribunals 103
Post- World War II Changes 104
The Establishment of International Criminal Tribunals 106
Common Article 3 and Crimes Against Humanity 107
Persecution 112
VI. Judicial Independence and Impartiality 116
Why Judicial Independence Matters 118
Ensuring an Independent Judiciary 119
Judicial Selection 121
Should Judges Respond to Outside Criticism? 123
Judicial Assignments and Court Presidents 124
Judicial Bias and Recusal 127
Institutional Design and Management 132
The Presidency and the Prosecution 133
Communicating with the Public 134
Rules and Obstructive Behavior of Defendants 135
The Saga of the Turkish Judge Akay 136
VII. Judicial Decision- Making and Deliberations 143
Decision- Making 143
The uniqueness of the Tribunals 144
Decision- makers 145
Judges and staff— background 146
Judges— processes 148
The Deliberation Process at International Criminal Tribunals 149
Civil Law and Common Law Courts 151
Deliberations at the ICTY/ ICTR Appeals Chambers 152
Appeals from Judgements 152
Before the hearing 153
The hearing 154
After the hearing 155
Sentencing deliberations 158
Separate/ dissenting opinions 159
Contents vii
Interlocutory appeals, pre- appeal decisions and petitions for review 160
Deliberations at the Trial Chambers 162
Challenges for the Mechanism 163
VIII. Keeping POWs Safe: The Ovčara Massacre 164
IX. General Gotovina: A Controversial Acquittal 173
The Background 173
I. Excerpts from the Appeals Chamber Majority Judgement
of Acquittal of Gotovina 174
II. A Separate Opinion on Alternate Modes of Liability 177
III. Judgement of the ICJ Supporting the Gotovina Majority
Decision 179
PART III: SELECTED DECISIONS
X. Fleshing Out Principles of Fairness 185
Prosecutor v. Ngirabatware 185
Nahimana, Barayagwiza and Ngeze v. The Prosecutor 187
Prosecutor v. Galić 188
Renzaho v. The Prosecutor 189
Prosecutor v. Hadžihasanović and Kubura 190
Prosecutor v. Šešelj 190
Prosecutor v. Mladić 191
Prosecutor v. Mladić 193
Prosecutor v. Šešelj 195
Prosecutor v. Galić 196
Slobodan Milošević v. The Prosecutor 197
Prosecutor v. Slobodan Milošević 199
Zigiranyirazo v. The Prosecutor 200
Prosecutor v. Prlić, Stojić, Praljak, Petković, Ćorić and Pušić 202
Prosecutor v. Karadžić 203
Prosecutor v. Nyiramasuhuko, Ntahobali, Nsabimana, Nteziryayo,
Kanyabashi and Ndayambaje 204
Mugenzi and Mugiraneza v. The Prosecutor 206
Prosecutor v. Dragan Nikolić 207
Prosecutor v. Bralo 209
Ntabakuze v. The Prosecutor 210
viii Contents
Prosecutor v. Mrkšić, Šljivančanin 211
Prosecutor v. Karadžić 212
XI. Writing Separately: My Dissenting and
Concurring Opinions 215
Nahimana, Barayagwiza and Ngeze v. The Prosecutor 215
Prosecutor v. Galić 225
Bagosora and Nsengiyumva v. The Prosecutor 233
Prosecutor v. Strugar 237
Prosecutor v. Halilović 242
Gacumbitsi v. The Prosecutor 245
Prosecutor v. Gotovina and Markač 250
Prosecutor v. Brđanin 253
Muvunyi v. The Prosecutor 257
Prosecutor v. Stakić 261
XII. Early Release of Prisoners Decisions 263
Background 263
Key Early Release Decisions 268
Prosecutor v. Bisengimana 268
Prosecutor v. Ntakirutimana 272
Prosecutor v. Lazarević 274
Prosecutor v. Galić 276
Prosecutor v. Beara 279
Prosecutor v. Kunarac 286
Prosecutor v. Simba 289
Prosecutor v. Ćorić 298
EPILOGUE
XIII. The Road Ahead: Does International Justice Work? 311
Invigorate the New Era of Accountability 311
Close the Accountability Gap 312
Comply with Existing Obligations 316
Encourage and Invigorate Prosecutions under the Principle
of Universal Jurisdiction 318
Review and Revise Laws and Practices to Ensure Due Process,
Fair Trials and Judicial Independence 320
Invest in Justice Infrastructure 322
Consider and Support Regional Accountability Initiatives 323
Contents ix
Develop Innovative Solutions to Foster Greater Accountability—
and Revisit or Recycle Past Approaches Where Appropriate 324
Foreswear Amnesties and Targeted Immunities 327
Sustain Support for and Cooperation with Existing Accountability
Mechanisms 329
Tackle Apathy, Intransigence and the Absence of Political Will 332
Measure Success 334
Reflecting on my Personal Journey 345
Index 349
