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When Justice Meets Politics

Independence and Autonomy of "Ad Hoc International</I> Criminal Tribunals


Klaus Bachmann, Thomas Sparrow-Botero and Peter Lambertz

Are the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) independent actors, who mete out fair and un-biased justice, or instruments of a new world order, which execute the will of the most powerful states? By applying process tracing and frame analysis, this book reveals the interplay between the power politics of states, the agenda setting power of international criminal tribunals and the scope of the autonomy which the tribunals, the prosecutors and judges enjoy – and how they make use of it. The book details the mechanisms that govern judicial behaviour at the ICTY and the ICTR as well as the influence of the media, non-governmental organisations, governments and international organisations on judges and prosecutors. Last but not least, it shows why and how initially controversial frames like those about the «genocide in Srebrenica» and «the Rwandan genocide» became almost undisputed notions which are hardly challenged by anyone today.


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Part II External Influences on Judging at International Criminal Tribunals


Introduction From a theoretical standpoint, a trial can be regarded from two perspectives: As the process of negotiating guilt, during which the prosecutor acts as a representative of the state (or, respectively, as a representative of the community, whose system of norms was violated), the defence counsellor acts as a representative of the defendant and the judge moderates the confrontation between the two parties, weighs the evidence and finally issues a verdict, possibly guiding a jury. These features broadly describe the adversarial system, which exists in the United States. In the inquisitorial system, which dominates on the European continent, it is the task of the judge (or the trial chamber) to establish the truth (rather than guilt alone) in a joint effort with the prosecution and the defence. Whether we reject this dichotomy or not, both systems’ basic assumptions remain undisputed. One of them is the belief that the application of specific procedures facilitates the establishment of the truth about a certain controversial event (what happened and who did what).301 Another one consists in the conviction according to which this procedure can only work smoothly and efficiently if all participants fulfill the role assigned to them by the law. A more specific and extremely essential requirement is the impartiality of the judge or the trial chamber. Another one is the expectation that verdicts should be based on deliberation rather than bargaining, which includes that the discussions of the judges (and, if applicable, the jury) should only be guided by...

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