GoJIL Vol. 9, No. 1 (2018)
The Rule of Law à la ICTY: What the ICTY Deemed Just Good Enough and How it Supported the Countries in the Former Yugoslavia to Become Better
Kei Hannah Brodersen
Abstract
The ICTY was established as a criminal tribunal that would conduct prosecutions and trials addressing international crimes committed in the former Yugoslavia during the wars in the 1990s. Next to this core mandate, the Tribunal increasingly placed itself in the context of rule of law promotion, the trigger being its completion strategy and the insertion of Rule11bis into its Rules of Procedure and Evidence. Rule 11bis foresaw the possibility to refer cases from The Hague to national courts. In order to help prepare national justice systems for receiving these cases, the ICTY initiated a number of rule of law promotion measures, albeit without having officially defined the ‘rule of law’ for itself, let alone having formulated a policy for systematic rule of law promotion. Based on a comprehensive case law, discourse, and document analysis, this contribution, however, puts together a mosaic of rule of law elements recommended by the ICTY, effectively resembling a definition. This definition has a normative dimension that concerns the legislative framework of a country, an institutional dimension that prescribes rules for the functioning of its justice institutions, and a cultural dimension, requiring that the rule of law be ideologically embraced by people and State representatives. As the ICTY’s rule of law promotion activities reflect what it deemed relevant in the rule of law at the respective time, it becomes clear that the Tribunal took this definition as a basis for its efforts in the countries of the former Yugoslavia. Three examples will demonstrate this. Overall, this piece contributes to understanding the legal and normative bases of the ICTY’s efforts at strengthening the rule of law in post-conflict former Yugoslavia.
Download the full text as a PDF