Looking Up, Down and Across: The ICTY's Place in the International Legal Order

Abstract

A diverse array of institutions is involved - whether by design or by request - in dispensing justice for the former Yugoslavia. These include the International Tribunal for the former Yugoslavia (ICTY); national criminal courts of a number of countries; U.N.-assisted hybrid criminal tribunals; ordinary courts hearing civil cases; the International Court of Justice (ICJ), which is involved in reparative claims invoking state responsibility in a number of matters involving the FRY, Croatia, and Bosnia and Herzegovina; and, potentially, the International Criminal Court (ICC) in the sad event that new breaches of international humanitarian law occur as of July 1, 2002, in the states emerging from the former Yugoslavia. This Article posits that this diversity creates a need for the ICTY to assess its own place and role. In so doing, it needs to: (1) look downwards and contemplate its interface with proceedings, whether criminal or civil, undertaken by national courts; and (2) look across (or up?) to international institutions, in particular the ICJ (which is being called upon to resolve state responsibility civil claims), with a view to crafting a healthy relationship. The fact that the tragedy in the former Yugoslavia is being redressed through such a diverse palette of institutions raises a number of difficult questions. First among these is an inquiry regarding the effects of enforcing international law through a decentralized, horizontal pattern of diffuse institutions. There are strengths to decentralized enforcement, insofar as it can facilitate flexible, specialized, and contextual legal responses. It can increase the sheer number of legal institutions, thereby augmenting the extent to which the conflict in the former Yugoslavia is legalized. It can promote specialized adjudication, which develops expertise and professionalism that, in turn, appreciates respect for adjudicators among litigants. However, there may also be weaknesses, insofar as decentralized enforcement may lead to inconsistencies that arguably could weaken predictability and certainty in international criminal law. Which is more germane to the legitimacy of international law: context or consistency? Breadth or depth? Although the focus of this Article is limited to the ICTY specifically and international criminal law generally, it is relevant to claims for judicial harmonization in many other areas regulated by international law, including the law of the sea, international human rights law, and international trade law.