The UN International Criminal Tribunal for the Former Yugoslavia and International Justice: the judges and their role

by David Hunt

The Yugoslav Tribunal came into existence when the UN Security Council adopted the Tribunal's Statute on 25 May 1993. The election of the first judges took place in September of the same year, and the first judges were sworn in on 16 November for a term of four years. They elected a President and a Vice-President, the President then assigned the judges to the different Chambers, and they started work. This was an entirely new entity. Although the Nuremberg and Far East Tribunals after the Second World War were international criminal tribunals, they had been set-up by the victors in the war and their structure and procedures were imposed upon the accused. They did not provide an ideal model for this new international criminal tribunal which, for the first time, was truly international in nature. The Tribunal was also different from its predecessors in that, for the first time, it included an appellate structure whereby appeals may be taken from any decisions given before and during the trial and from the judgment delivered at its conclusion. Because there was at that time no Prosecutor, and therefore no accused to try, the first judges spent a considerable amount of time and effort to draft the Rules of Procedure and Evidence within the framework of the Tribunal's Statute. To a large extent, by making the Prosecutor responsible for the investigation and prosecution of the accused, the Statute had adopted the common law adversarial system in preference to the civil law inquisitorial sys­tem, and this fact is reflected in the Rules which were adopted. A lot has been written about the fundamental differences between the two systems - generally, I should add, by lawyers whose training has been in only one those systems without very much practical experience in the other system.