Volume 4 Number 4 December 2005

JAMES COCKAYNE analyzes hybrid war crimes trials like those in Kosovo, East Timor, Sierra Leone, Cambodia and Bosnia using Garfinkel’s 1961 analysis of the conditions of successful degradation ceremonies. Internationalized war crimes trials must balance appeals to international and local communities and their moralities. At present, they instead risk descending into moral confusion, defeating the process whereby war crimes trials transform local morality to align it with international norms. Worse, they may risk allowing local actors to transmute unsuccessful degradation ceremonies into successful martyrdoms, reinforcing regressive national, tribal and other group solidarities which the trial process seeks, in part, to address.

STEVEN C. ROACH examines the normative implications of the International Criminal Court (ICC). In particular, it discusses the tensions between the moral duty to investigate all elements of crimes encoded in the ICC Statute and the expected unwillingness or inability to investigate certain crimes. As such, it focuses primarily on one key example that exposes this tension: enforced pregnancy. To understand the nature of this tension, the article theorizes about the ICC’s cosmopolitan intent by drawing on theories of pluralism and cosmopolitanism. The article argues two points: that the cosmopolitan intent of the ICC needs to be viewed as an important determinant of its moral progress, and that such progress will depend on its willingness to uphold the moral duty to investigate all serious crimes.

Since the first trial before the International Criminal Tribunal for the former Yugoslavia (ICTY), the complex issues surrounding legal aid to indigent defendants in international war crimes trials have been paramount. MARK ELLIS addresses six contentious issues faced by current and future international war crimes courts. The issues are: (1) defense counsel fees; (2) corruption and fee-splitting by the defense counsel; (3) selection of defense counsel; (4) plea-bargaining; (5) sentencing the accused; and (6) defense council ethics. In this paper Ellis examines in detail the incremental changes that international courts have adopted in setting defense counsel fees for indigent defendants. The insidious problem of corruption among defense counsel and the steps taken by the courts to remedy the problem are also discussed. Oftentimes, this issue is associated with the selection of defense counsel. This too has been a controversial issue for the courts and Ellis provides a comprehensive review of the problems associated with the selection of counsel for indigent defendants.

The development of the concept of plea-bargaining has been a crucial issue for the international courts. Ellis traces the slow acceptance of the usage of plea-bargaining by the ICTY and the International Criminal Tribunal for Rwanda (ICTR) and adoption of the concept by the ICC. Ellis also looks at sentencing guidelines and reveals the inconsistency of such guidelines used by the international courts and how the ICC will be faced with this issue early in its work. One of the most important developments in the role of defense attorneys appearing before international courts is the way in which these attorneys are disciplined. Ellis highlights the importance of having a rigorous code of ethics that can be fully enforced.

The conclusion reached is that despite great advances, challenges still face defense attorneys appearing before international courts. Issues affecting the defense must continue to be given high priority to uphold the principles of justice and the rule of law.

By examining the ongoing trial of Slobodan Milosevic, MICHAEL P. SCHARF discusses the dangers that self-representation poses to future war crime tribunals and the likelihood that it will influence the imminent trial of Saddam Hussein. This paper explores the gravity of Judge Richard May’s decision to allow Milosevic to act as his own council – a decision which has resulted in significant trial delays and ultimately compromised the authority of judges to control the dignity of their proceedings. A thorough review of statutes outlined in international courts such as the ICTY, ICTR and the ICC, reveals a more liberal interpretation of self-representation than Judge May’s, and invites the revisitation of his decision. Scharf concludes this paper by considering the comprehensive implications of the Milosevic trial and the importance that its precedent holds as more trials of its kind fall into the international spotlight.

STEVEN D. ROPER and LILIAN A. BARRIA explore the rationale and mandates of The Indonesian Human Rights Court and the East Timor Serious Crimes Panel. While much has been written about purely international efforts to address human rights violations after a conflict, such as the International Criminal Tribunal for the Former Yugoslavia and Rwanda, less scholarly attention has focused on the creation of mixed or purely domestic institutions for international human rights, such as The Indonesian Human Rights Court and the East Timor Serious Crimes Panel. These are particularly interesting cases in that the development of the institutions in each country sought to address the same violations.

Roper and Barria examine the development of these institutions in order to understand the goals of the domestic and international community in promoting their establishment. Their paper is organized into four sections. First, they outline the nature of the conflict between the two countries. Then they examine the domestic and international response to the conflict and examine the debate on the creation of these institutions. Third, they analyze the structure of these institutions and their rules of procedure. Finally, they turn their attention to assessing why the structure, jurisdiction and staffing for these institutions is different from the tribunals of the 1990s, and how this impacts their effectiveness in accomplishing their mission.

LOUIS BICKFORD examines the efforts of the government of Vicente Fox to confront past human rights abuse in Mexico, especially during the first half of his six year term as president. Beginning with a framework based on how other countries have dealt with the legacies of the past, the article critically evaluates Fox's transitional justice policies, beginning with campaign pledges before he won the election in 2000. Shortly thereafter, Fox announced the creation of a Special Prosecutor (Fiscal Especial), naming Ignacio Carrillo Prieto to that post. At the same time, the Fox government decided against the creation of a truth commission in Mexico, thus rejecting the recommendations of some advisers who had been inspired by truth commissions in Argentina, Chile, and South Africa. The article evaluates the SPO according to four considerations: (1) the effectiveness of investigations leading to prosecution of systems crimes; (2) the balance between victims' voices and establishing judicial truth; (3) the relationships between the SPO and a broader context of democratization; and (4) understanding the SPO as virtually the entire transitional justice policy of the Fox administration. The article concludes that the high expectations for the role of the SPO in the democratic transition seem to have overburdened an office that already needed to struggle for legitimacy. It also concludes that, although the office of the Special Prosecutor has the potential to contribute to Mexico's transition, its success remains far from guaranteed.

A decade ago, when it established the ICTY, the Security Council expressed the hope that by prosecuting persons responsible for serious violations of international humanitarian law, the Tribunal would contribue to the restoration and maintenance of peace in the former Yugoslavia. DAN SAXON evaluates how three of the different national communities in the former Yugoslavia, the Serbs, Croats and Muslims, view the ICTY's compliance with its mission, and describes how the Tribunal has succeeded, and where it has failed, as a tool of peace and international justice. Simplistic beliefs in the power of criminal trials to change the political and historical landscape of a region are underly some of the ICTY's weaknesses. Saxon concludes that the ICTY's political impact in the Balkans may be more important than the Tribunal's contribution to the development of international law. Ensuring that such change is positive and fair while retaining the support of the Muslim, Croat and Serb communities in the former Yugoslavia is perhaps the greatest challenge of the ICTY.