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When Justice Meets Politics

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

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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 III Politicizing Tribunals? Reconciliation in Sentencing and Judging at the ICTR and the ICT

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In the first part of this book, we examined how much initiative and agenda setting power the ICTY enjoyed in its relationship with the European Union, Serbia, and Croatia. The second part concentrated on the independence and autonomy of judges vis-à-vis external actors, such as governments, non-governmental organisations, international media, and other stakeholders with an interest in a specific result of a trial. In the following part, we scrutinize whether, and eventually how, the judges at the ICTY and the ICTR have attempted to carry out the UNSC and General Assembly’s task to foster reconciliation in the respective region by including this non-legal and therefore political rather than juridical concept into their judgments. How have the judges, trial chambers, and appeals chambers tried to translate this specific, and – for municipal courts – quite unusual task into their concrete decisions? What were their understandings of the reconciliation concept? Were references to “reconciliation” more likely to increase a sentence or to diminish it? What situations, what kind of dilemmas inclined judges to apply the concept? What were the consequences for the conduct of the trial, the judgment, and the sentence? In order to answer these questions, we first review scientific literature on reconciliation and propose an analytical toolkit to disentangle the meanings with which the concept has been operationalized in the context of transitional justice. Subsequently, we present the results of our scrutiny of the ICTY’s and ICTR’s judgments and sentences, respectively, in order to establish the ways in which the tribunals...

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