Longer than Life

List of Abbreviations xvii

1 Introduction: The ICTY between Hope and Disappointments 1
1 The New Era of Global Justice 1
2 The ICTY’s Broader Effects 5
2.1 High Expectations towards the Tribunal 5
2.2 LittleKnowledge about the Potential ofInternationalCriminal Courts and Tribunals 7
2.3 The ICTY and the Rule of Law 11
3 Structure of This Book 13
4 The Political Context: Societies in Transition 16
5 Terminology 19
6 Epilogue 21

Part I Conceptual, Theoretical, and Methodological Framework
2 The Rule of Law in Transitional Justice 25
1 A Short History of the Rule of Law 28
1.1 Ancient Roots, the Medieval Period, and Liberalism 28
1.2 Which Essentialia Can Be Distilled for a Modern Rule of Law Conception? 31
2 Formal Versus Substantive Conceptions of the Rule of Law 32
2.1 Formal Conceptions of the Rule of Law 33
2.2 Substantive Conceptions of the Rule of Law 36
2.3 The Rule of Law: An Essentially Contested Concept 39
3 Ordinary Rule of Law Versus Transitional Rule of Law 40
3.1 The Rule of Law as Core Transitional Business 40
3.2 Transitional Justice and Its Goals 43
3.3 The Law in Transition: Enabling and Softening the Transition 48
3.4 The Rule of Law in Transition 50
4 The Rule of Law in Transitional Justice 51
4.1 The Two Main Characteristics: Maximalist and Interim 51
4.2 Purposes of the Transitional Rule of Law 52
4.3 Existing Proposals for a Rule of Law in Transitional Justice Contexts 54
4.4 The First Pillar: Three Components of the Transitional Rule of Law 58
4.5 The Second Pillar: Implicating the Whole of Society 60
4.6 The Transitional Rule of Law 61
5 Conclusion 63

3 The Impact Model: How War Crimes CourtsInfluence the Domestic Rule of Law 67
1 Impact Factors: War Crimes Courts’ Capacity Building and Demonstration Abilities 71
1.1 Theoretical Origins 71
1.2 Direct Impact Factors: Capacity Building Abilities 72
1.2.1 Providing Material Resources 74
1.2.2 Advice on Legal Reform 75
1.2.3 Transfer of Knowledge 75
1.2.4 Empowering the Civil Society 77
1.3 Indirect Impact Factors: Demonstration Abilities 80
1.3.1 Legality: Legal Establishment 86
1.3.2 Effectiveness: Fighting Impunity 86
1.3.3 Compliance: Cooperation and Deterrence 87
1.3.4 Perceived Legitimacy: The War Crimes Court’s Demonstration of the Rule of Law 88
1.4 ‘Impact Receivers’: Key Constituents of War Crimes Courts 91
2 Impact Mechanisms: The Rule of Law Cascade 93
2.1 Theoretical Origins 93
2.1.1 Why Obey? Logic of Appropriateness Versus Logic of Consequentialism 93
2.1.2 Why States Obey International Law in their International Relations 94
2.1.3 Why States Obey International Law Domestically 96
2.1.4 Norm Internalisation: The Norm Cascade Model and the Spiral Model 97
2.2 Mechanisms to Impact the Rule of Law by War Crimes Courts 103
2.2.1 Advocacy Networks for the Rule of Law 106
2.2.2 War Crimes Courts’ Rule of Law Cascade 108
3 Conclusion 113

4 Methodology and Analytical Framework 119
1 Methodology 120
1.1 Interdisciplinary Approach 120
1.2 Sources 121
1.2.1 Legal Sources, Policy Documents, IO and NGO or Media Reports, Academic Literature 121
1.2.2 Semi-Structured Expert Interviews 123
1.3 Comparative Approach 127
1.4 Chronology of the Research Process 129
2 Analytical Framework 131
2.1 The ICTY’s Rule of Law Definition 135
2.1.1 Normative Dimension 136
2.1.2 Institutional Dimension 143
2.1.3 Cultural Dimension 145
2.1.4 Comparison Between the Rule of Law in Transitional Justice and the ICTY’s Rule of Law Conception 146
2.2 Analysing Impact 148
3 Conclusion and Challenges 150

Part II ICTY-Triggered Changes in Serbia and Bosnia and Herzegovina
5 The ICTY, the Catalyst – How the ICTY Contributed to Re-Establishing the Rule of Law by Triggering the Domestic Adjudication of War Crimes 157
1 Explaining Impact: Establishing Domestic War Crimes Institutions 158
1.1 The Jurisdictional Regime of the ICTY Statute 158
1.2 Completion or Continuation Strategy 158
1.3 The Incentive: Transferring Cases 160
1.4 Conducting Necessary Judicial Reforms 163
1.5 A Joint Initiative: Establishing the State Court of Bosnia and Herzegovina 164
1.6 No Comparable Efforts in Serbia 167
2 The War Crimes Institutions 171
2.1 Bosnia and Herzegovina 171
2.1.1 Courts 171
2.1.2 Prosecutors’ Offices 174
2.1.3 Registry 177
2.1.4 Criminal Defence Section (Odsjek Krivične Odbrane, OKO) 178
2.1.5 International Element 179
2.2 Serbia 184
2.2.1 Higher Court Belgrade and the Court of Appeal in Belgrade 186
2.2.2 Office of the War Crimes Prosecutor (OWCP) 187
2.2.3 War Crimes Investigation Service (WCIS) 188
3 Applicable Law 189
4 How the ICTY Boosted the Performance of Domestic Institutions 190
4.1 Jurisdictional Regime and Division of Labour 190
4.2 Cooperation between Domestic Courts and the ICTY 196
4.3 The ICTY’s Rules of the Road Programme 202
4.4 Transferring Rule 11bis and Category II Casesfrom The Hague to the former Yugoslavia 207
4.5 ICTY Oversight over Investigations and Trials 211
4.6 Capacity Building 212
5 Appraisal of Domestic War Crimes Cases 219
5.1 Numbers of War Crimes Cases 219
5.2 Challenges and Problems 220
5.2.1 Lack of Will 221
5.2.2 Lack of Resources 225
5.2.3 Lack of Competence 227
5.2.4 Lack of Regional Cooperation 229
5.2.5 Lack of Structured Approaches 234
6 Conclusion: Re-Establishing Accountability 235

6 “We Learned That from The Hague” – How the ICTY Contributed to Compliance with International Law and Standards through Impact on Domestic Criminal Law and Practice 239
1 Explaining Impact: The Role of the ICTY and International Law in Serbia and BiH 242
1.1 Presence and Absence of the International Community 242
1.2 International Law in Bosnia and Herzegovina and Serbia 245
1.2.1 Legal Framework 245
1.2.2 Customary International Law 247
1.2.3 Principle of Legal Precedents 249
1.2.4 International Judges and Prosecutors 250
1.2.5 Attitudes Towards International Law: Lack of Experience, Knowledge, and Access 252
1.3 Legal Professionals’ Attitudes Towards the ICTY 257
1.4 ICTY- andOtherMeasures Paving the Ground forICTYImpact 266
1.5 Summary: Factors Leading to ICTY Impact on Criminal Law in BiH and Serbia 269
2 Substantive Criminal Law 270
2.1 Legislation 270
2.2 Jurisprudence 277
2.2.1 Prosecuting for Crimes Against Humanity and Command Responsibility 283
2.2.2 The Contextual Elements of War Crimes 288
3 Procedural Criminal Law 311
4 Conclusion: Compliance with International Law and Standards 320

7 Bringing Novelties to the Region – How the ICTY Contributed to Justice and Effectiveness of the Criminal Process by Introducing Protection and Support for Witnesses and Victims 327
1 Witnesses Protection and Support 329
1.1 Explaining Impact: The ICTY as a Role Model for WitnessProtection and Support 329
1.1.1 Demonstrating Witness Protection and Witness Support 329
1.1.2 Capacity Building to Bolster Good Practices 333
1.2 Witness Protection in Bosnia and Herzegovina 334
1.2.1 In-Court Protection 336
1.2.2 Out-of-Court Protection 340
1.2.3 Prosecution of Threats against Witnesses 344
1.3 Witness Support 344
2 Compensation for Victims 352
2.1 Explaining Impact: The ICTY as a Negative Example in Compensating Victims 352
2.2 CompensationClaims WithinCriminal Proceedingsin Bosnia and Herzegovina and Serbia 355
3 Conclusion: Effectiveness and Justice 358

8 Modernising the Courtroom – How the ICTY Contributed to Efficiency, Effectiveness, and Transparency of Court Proceedings by Demonstrating the Benefits of Technology 361
1 Explaining Impact: Leading by Example 362
2 Technical Innovations in National Courts 364
2.1 Electronic Evidence and Case Management 364
2.2 Video-Conference Link 364
2.3 Witness Protection 365
2.4 Audio-Recording and Transcripts 365
2.5 Video-Recording and Public Sessions 366
2.6 Use of the Internet to Inform the Public 368
3 Conclusion: Efficiency, Effectiveness, and Transparency 369

Part III Analysis of the ICTY’s Impact on Bosnia and Herzegovina and Serbia
9 Explaining the ICTY’s Impact on Changes in the Bosnian and Serbian Justice Systems 379
1 Analysis of ObservedChangesin theCriminalJustice Systems of Bosnia and Herzegovina and Serbia 381
1.1 Clear, Unclear or Partial, or Non-Existent Impact 382
1.2 Types of Domestic Changes 383
1.3 Degree of Change 385
1.4 Impact that Transgresses the Field of War Crimes and Impact that Does Not 386
1.5 Appraisal of the Observed Change 389
2 Explaining the ICTY’s Impact on Bosnia and Herzegovina and Serbia 389
2.1 Theory Recap: From Capacity Building and Demonstration Effects to the Norm Cascade 389
2.2 Actors Relevant for Change 391
2.3 Factors That Mattered in BiH and Serbia 392
2.3.1 Capacity Building Abilities: Intensity of Contact 393
2.3.2 Attitudes Towards the ICTY 407
2.3.3 Conclusion: The ICTY’s Capacity Building and Demonstration Abilities 451
2.4 The ICTY’s Impact Networks 453
2.5 Explaining the Tribunal’s Impact: The ICTY’s Norm Cascade 455
3 Is This the Rule of Law? 458
4 Conclusion 466

10 Conclusion: “The Tribunal Is Dead, Long Live the ICTY!” 471
1 The ICTY’s Impact on the Rule of Law in BiH and Serbia: Summary of the Main Findings 473
2 The Take-Aways from This Study 476
2.1 General Validity of This Research 476
2.2 Recommendations 479
2.3 Academic and Societal Contributions 484
3 Reflections on Doing This Research 485
4 The ICTY, the Birthplace of Everything 486

Postface 489
Index of Tables and Figures 491
Bibliography 493