Table Of Content

STANDING UP FOR JUSTICE STANDING UP FOR JUSTICE T C T he hallenges of rying a C TroCiTy rimes THEODOR MERON 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Theodor Meron 2021 The moral rights of the author have been asserted First Edition published in 2021 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. 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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