Victor's Justice or the Law? Judging And Punishing At The International Criminal Tribunal For The Former Yugoslavia

Abstract

The development of fair and impartial criteria for judging those accused of international crimes is one of the most critical issues facing the international community and the International Criminal Tribunal for the Former Yugoslavia (ICTY). Are the resources, experience, and moral force so weighted in favor of the international community that the accused cannot obtain a fair contest? Are international criminal trials legalistic exercises that cloak a victor's justice, or do such courts premise their decisions on fair criteria? Data on ICTY verdicts and punishment of convicted war criminals show that the ICTY judges follow a "legal" model and that punishment is based primarily on the gravity of the crimes committed and the defendant's level of responsibility in the political and military chain of command. Political factors largely do not explain verdicts or sentences.

Regulating Conflict: Historical Legacies and State Commitment to the Laws of War1

“…The impact of participating in past conflicts also appears to be a more consistent explanatory factor than the actual outcome of the fighting. The results suggest that if any notion of “victor’s justice” exists (Meernik 2003), it may be taking place outside of the laws of war. In all three agreements, the coefficient for war outcome is negative, though the coefficient only reaches statistical significance for the Geneva Conventions, while remaining much weaker for either Protocol.…”

Building the Rule of International Criminal Law: The Role of Judges and Prosecutors in the Apprehension of War Criminals

“…Note that I am not asserting that judges intentionally issue acquittals for their political fallout. Indeed, Meernik (2003) has demonstrated that judges at the ICTY have not. Instead, I argue that when judges do allow plea bargains or issue acquittals, those decisions impact compliance with arrest warrants.…”

Proving and punishing genocide at the International Criminal Tribunal for Rwanda

“…Even where the OTP cannot provide the evidence required for a genocide con-24 J. Meernik (2003), supra note 7. 25 viction, perhaps because the special intent element was lacking, or perhaps because victims were targeted because of their political beliefs, the judges still treat such crimes of widespread murder quite harshly.…”

“…First, previous research on the ICTY demonstrates that criteria derived from the ICTY Statute and also used in domestic, criminal justice systems explain a great deal of the variation across sentences handed down to date. 8 Second, since the ICTR is a fairly recent creation, we should also nd judges looking for appropriate guidance and precedents, which exist almost primarily in the ICTR Statute and its 'Rules of Procedure and Evidence' upon which to support their decisions. These criteria generally provide for some sort of proportionality in sentencing to make the punishment t the crime, but also provide for the application of aggravating and mitigating circumstances.…”