JOHN LAUGHLAND’s SUMMARY OF THE HAGUE TRIBUNAL’s ILLEGALITY
“Perhaps the most shocking violation of legal principles occurred when the ICTY decided to rule on its own legality in its first trial, that of Duško Tadić, in 1995. The defence contested three fundamental points about the ICTY: first, the legality of its establishment; second, its primacy over national courts, and, third, its subject matter jurisdiction (that is, over different types of conflict).
The Defence counsel, Michail Wladimiroff, argued that the ICTY was not legal since it was a fundamental right of all defendants to be tried by a tribunal established by law, which the ICTY had not been. The Appeals Chamber considered the question and, not surprisingly, found that the ICTY had been legally created and that it did have the jurisdiction it claimed. Had it found otherwise, the ICTY would have been obliged to close down its operations immediately and the judges themselves would have been out of a job.
It is difficult to imagine a worse infraction of the fundamental legal principle that no man should be judge in his own cause. This ruling in Tadić emphasised the fact that the ICTY does not even have a distinct appeals procedure. There is a unified panel of judges who rotate between the Appeals Chamber and the Trial Chamber. None of their decisions are ever referred to any outside body. The Security Council, of which the ICTY is a subsidiary organ, has no real control over the ICTY, which is required only to submit an annual report to the Secretary-General, and there is no oversight by the United Nations General Assembly either. In over ten years, the Security Council has not reviewed or amended any of the substantial decisions on law and liability taken by the ICTY. In other words, the ICTY judges are a law unto themselves.
A similarly offhand approach to the law inspired the drafting of the Rules of Procedure of the ICTY, which systematically put defendants at a disadvantage. The first rule of any legal system is that the law must be stable, yet this fundamental rule is broken by the ICTY, whose Rules of Procedure are in a state of permanent flux. Having been drafted in only two months and published for the first time on 11 February 1994, they were further amended twice in 1994, four times in 1995, four times in 1996, twice in 1997, twice in 1998, three times in 1999, twice in 2000, three times in 2001, four times in 2002, three times in 2003, four times in 2004 and five times in 2005. (At the time of writing there has been one further amendment in March 2006. For that matter, the Statute itself has been amended eight times by the Security Council since the ICTY’s creation.)
In other words, the Rules of Procedure have been changed every three months or so ever since they were originally drawn up. These changes have not been minor. In January 1995, 41 of the 125 rules were changed while in December 2002, 19 rules were changed. Many of these changes have reduced the rights of defendants even though Article 6 of the Rules says that this is not allowed. Just as the basic legitimacy of the ICTY has not been referred to any exterior legal body, so the Rules of Procedure are not decided upon by any organ outside the ICTY itself. Unlike the International Criminal Court, Article 51 of whose statute requires that changes to the rules of procedure be approved by the Assembly of State Parties–that is, by a governing body that is different and separate from the judges, which oversees all aspects of the Court’s functioning, and which makes all the key appointments.
The ICTY’s Rules of Procedure are decided on by the judges themselves. This represents a dangerous confusion between the role of the judge, which is to say what the law is, and the role of the legislator, which is to change or make the law. Moreover, the procedure for changing the rules is alarmingly simple. The rules are laid out in Article 6 of the ICTY Statute and in the relevant ‘Practice Directions’ of 1998 and 2001. These allow the Rules of Procedure to be amended in a plenary session meeting of not less than ten judges, or outside a plenary meeting if there is unanimous support. In practice, what happens in this latter case is that one judge sends a fax or an e-mail to the others and if they all agree, then the rules are changed. Never in the history of civilised jurisdictions have judges enjoyed such a right to make their own rules or to change them so easily. It is a sorry comment on the state of Western legal and political thinking that laws can now be made by an exchange of e-mails: one might as well close down all the world’s parliaments and call an end to public sessions of legislative bodies. One of the main reasons for this extraordinary elasticity in the law is that many of the judges at the ICTY are not really judges at all. In a proper criminal jurisdiction, the role of the judge is very specific: the judge must be well-trained in the law and must apply the law as it is.”
— Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice by John Laughland