Longer Than Life : How the ICTY Strengthened the Rule of Law in Bosnia and Herzegovina and Serbia / Kei Hannah Brodersen.

Format:

Book

Author/Creator:

Brodersen, Kei Hannah, author.

Language:

English

Subjects (All):

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.

Rule of law--Bosnia and Herzegovina.

Rule of law.

Rule of law--Serbia.

Criminal justice, Administration of--Bosnia and Herzegovina.

Criminal justice, Administration of.

Criminal justice, Administration of--Serbia.

War crime trials--Bosnia and Herzegovina.

War crime trials.

War crime trials--Serbia.

Physical Description:

1 online resource (575 pages)

Edition:

First edition.

Place of Publication:

The Hague, The Netherlands : Eleven International Publishing, [2020]

Summary:

Longer than life was awarded the Modderman Prize 2022.The ICTY closed its doors in 2017.It had been set up in 1993 in order to prosecute crimes committed during the Yugoslav wars in the 1990s.Although its mandate was limited to that of a criminal court, the Tribunal aimed at strengthening the rule of law in the countries under its jurisdiction.

Contents:

Intro

Acknowledgments

Table of Contents

List of Abbreviations

1 Introduction: The ICTY between Hope and Disappointments

1 The New Era of Global Justice

2 The ICTY's Broader Effects

2.1 High Expectations towards the Tribunal

2.2 Little Knowledge about the Potential of International Criminal Courts and Tribunals

2.3 The ICTY and the Rule of Law

3 Structure of This Book

4 The Political Context: Societies in Transition

5 Terminology

6 Epilogue

Part I Conceptual, Theoretical, and Methodological Framework

2 The Rule of Law in Transitional Justice

1 A Short History of the Rule of Law

1.1 Ancient Roots, the Medieval Period, and Liberalism

1.2 Which Essentialia Can Be Distilled for a Modern Rule of Law Conception?

2 Formal Versus Substantive Conceptions of the Rule of Law

2.1 Formal Conceptions of the Rule of Law

2.2 Substantive Conceptions of the Rule of Law

2.3 The Rule of Law: An Essentially Contested Concept

3 Ordinary Rule of Law Versus Transitional Rule of Law

3.1 The Rule of Law as Core Transitional Business

3.2 Transitional Justice and Its Goals

3.3 The Law in Transition: Enabling and Softening the Transition

3.4 The Rule of Law in Transition

4 The Rule of Law in Transitional Justice

4.1 The Two Main Characteristics: Maximalist and Interim

4.2 Purposes of the Transitional Rule of Law

4.3 Existing Proposals for a Rule of Law in Transitional Justice Contexts

4.4 The First Pillar: Three Components of the Transitional Rule of Law

4.5 The Second Pillar: Implicating the Whole of Society

4.6 The Transitional Rule of Law

5 Conclusion

3 The Impact Model: How War Crimes Courts Influence the Domestic Rule of Law

1 Impact Factors: War Crimes Courts' Capacity Building and Demonstration Abilities

1.1 Theoretical Origins.

1.2 Direct Impact Factors: Capacity Building Abilities

1.2.1 Providing Material Resources

1.2.2 Advice on Legal Reform

1.2.3 Transfer of Knowledge

1.2.4 Empowering the Civil Society

1.3 Indirect Impact Factors: Demonstration Abilities

1.3.1 Legality: Legal Establishment

1.3.2 Effectiveness: Fighting Impunity

1.3.3 Compliance: Cooperation and Deterrence

1.3.4 Perceived Legitimacy: The War Crimes Court's Demonstration of the Rule of Law

1.4 'Impact Receivers': Key Constituents of War Crimes Courts

2 Impact Mechanisms: The Rule of Law Cascade

2.1 Theoretical Origins

2.1.1 Why Obey? Logic of Appropriateness Versus Logic of Consequentialism

2.1.2 Why States Obey International Law in their International Relations

2.1.3 Why States Obey International Law Domestically

2.1.4 Norm Internalisation: The Norm Cascade Model and the Spiral Model

2.2 Mechanisms to Impact the Rule of Law by War Crimes Courts

2.2.1 Advocacy Networks for the Rule of Law

2.2.2 War Crimes Courts' Rule of Law Cascade

3 Conclusion

4 Methodology and Analytical Framework

1 Methodology

1.1 Interdisciplinary Approach

1.2 Sources

1.2.1 Legal Sources, Policy Documents, IO and NGO or Media Reports, Academic Literature

1.2.2 Semi-Structured Expert Interviews

1.3 Comparative Approach

1.4 Chronology of the Research Process

2 Analytical Framework

2.1 The ICTY's Rule of Law Definition

2.1.1 Normative Dimension

2.1.2 Institutional Dimension

2.1.3 Cultural Dimension

2.1.4 Comparison Between the Rule of Law in Transitional Justice and the ICTY's Rule of Law Conception

2.2 Analysing Impact

3 Conclusion and Challenges

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

1 Explaining Impact: Establishing Domestic War Crimes Institutions

1.1 The Jurisdictional Regime of the ICTY Statute

1.2 Completion or Continuation Strategy

1.3 The Incentive: Transferring Cases

1.4 Conducting Necessary Judicial Reforms

1.5 A Joint Initiative: Establishing the State Court of Bosnia and Herzegovina

1.6 No Comparable Efforts in Serbia

2 The War Crimes Institutions

2.1 Bosnia and Herzegovina

2.1.1 Courts

2.1.2 Prosecutors' Offices

2.1.3 Registry

2.1.4 Criminal Defence Section (Odsjek Krivicne Odbrane, OKO)

2.1.5 International Element

2.2 Serbia

2.2.1 Higher Court Belgrade and the Court of Appeal in Belgrade

2.2.2 Office of the War Crimes Prosecutor (OWCP)

2.2.3 War Crimes Investigation Service (WCIS)

3 Applicable Law

4 How the ICTY Boosted the Performance of Domestic Institutions

4.1 Jurisdictional Regime and Division of Labour

4.2 Cooperation between Domestic Courts and the ICTY

4.3 The ICTY's Rules of the Road Programme

4.4 Transferring Rule 11bis and Category II Cases from The Hague to the former Yugoslavia

4.5 ICTY Oversight over Investigations and Trials

4.6 Capacity Building

5 Appraisal of Domestic War Crimes Cases

5.1 Numbers of War Crimes Cases

5.2 Challenges and Problems

5.2.1 Lack of Will

5.2.2 Lack of Resources

5.2.3 Lack of Competence

5.2.4 Lack of Regional Cooperation

5.2.5 Lack of Structured Approaches

6 Conclusion: Re-Establishing Accountability

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.

1 Explaining Impact: The Role of the ICTY and International Law in Serbia and BiH

1.1 Presence and Absence of the International Community

1.2 International Law in Bosnia and Herzegovina and Serbia

1.2.1 Legal Framework

1.2.2 Customary International Law

1.2.3 Principle of Legal Precedents

1.2.4 International Judges and Prosecutors

1.2.5 Attitudes Towards International Law: Lack of Experience, Knowledge, and Access

1.3 Legal Professionals' Attitudes Towards the ICTY

1.4 ICTY- and Other Measures Paving the Ground for ICTY Impact

1.5 Summary: Factors Leading to ICTY Impact on Criminal Law in BiH and Serbia

2 Substantive Criminal Law

2.1 Legislation

2.2 Jurisprudence

2.2.1 Prosecuting for Crimes Against Humanity and Command Responsibility

2.2.2 The Contextual Elements of War Crimes

3 Procedural Criminal Law

4 Conclusion: Compliance with International Law and Standards

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

1 Witnesses Protection and Support

1.1 Explaining Impact: The ICTY as a Role Model for Witness Protection and Support

1.1.1 Demonstrating Witness Protection and Witness Support

1.1.2 Capacity Building to Bolster Good Practices

1.2 Witness Protection in Bosnia and Herzegovina

1.2.1 In-Court Protection

1.2.2 Out-of-Court Protection

1.2.3 Prosecution of Threats against Witnesses

1.3 Witness Support

2 Compensation for Victims

2.1 Explaining Impact: The ICTY as a Negative Example in Compensating Victims

2.2 Compensation Claims Within Criminal Proceedings in Bosnia and Herzegovina and Serbia

3 Conclusion: Effectiveness and Justice.

8 Modernising the Courtroom - How the ICTY Contributed to Efficiency, Effectiveness, and Transparency of Court Proceedings by Demonstrating the Benefits of Technology

1 Explaining Impact: Leading by Example

2 Technical Innovations in National Courts

2.1 Electronic Evidence and Case Management

2.2 Video-Conference Link

2.3 Witness Protection

2.4 Audio-Recording and Transcripts

2.5 Video-Recording and Public Sessions

2.6 Use of the Internet to Inform the Public

3 Conclusion: Efficiency, Effectiveness, and Transparency

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

1 Analysis of Observed Changes in the Criminal Justice Systems of Bosnia and Herzegovina and Serbia

1.1 Clear, Unclear or Partial, or Non-Existent Impact

1.2 Types of Domestic Changes

1.3 Degree of Change

1.4 Impact that Transgresses the Field of War Crimes and Impact that Does Not

1.5 Appraisal of the Observed Change

2 Explaining the ICTY's Impact on Bosnia and Herzegovina and Serbia

2.1 Theory Recap: From Capacity Building and Demonstration Effects to the Norm Cascade

2.2 Actors Relevant for Change

2.3 Factors That Mattered in BiH and Serbia

2.3.1 Capacity Building Abilities: Intensity of Contact

2.3.2 Attitudes Towards the ICTY

2.3.3 Conclusion: The ICTY's Capacity Building and Demonstration Abilities

2.4 The ICTY's Impact Networks

2.5 Explaining the Tribunal's Impact: The ICTY's Norm Cascade

3 Is This the Rule of Law?

4 Conclusion

10 Conclusion: "The Tribunal Is Dead, Long Live the ICTY!

1 The ICTY's Impact on the Rule of Law in BiH and Serbia: Summary of the Main Findings

2 The Take-Aways from This Study

2.1 General Validity of This Research

2.2 Recommendations.

2.3 Academic and Societal Contributions.

Notes:

Includes bibliographical references and index.

Description based on publisher supplied metadata and other sources.

Description based on print version record.

Other Format:

Print version: Brodersen, Kei Hannah Longer Than Life

ISBN:

90-5454-362-0

OCLC:

1378392430