Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61

Abstract

As a judicial body lacking an effective enforcement arm, the U.N. International Tribunal for the Former Yugoslavia has, from its inception, encountered difficulties exercising its authority over uncooperative actors in the Balkans. Foremost among these problems is the Tribunal's inability to compel indictees to appear before it, a dilemma compounded by the ban on trials in absentia that has been read into the Tribunal's Statute. This Article critically examines the procedural mechanism devised by the Tribunal's judges to overcome this problem: public hearings pursuant to Rule 61 of the Tribunal's Rules of Procedure and Evidence. Rule 61 empowers the Tribunal to reconfirm indictments already issued. It also allows the Tribunal Prosecutor to air incriminating evidence and grants witnesses an opportunity to tell their stories before the world. Rule 61 proceedings can be described as a way of delivering a measure of justice to the victims of the war in the former Yugoslavia; they can also be characterized as an instrument by which to pressure fugitive indictees and the forces that support them. This Article examines the deliberative process that produced Rule 61 and its actual implementation. It also assesses the compatibility of the proceeding with international human rights standards delineating the right of an accused to be present during criminal proceedings. While Rule 61-generated proceedings are consistent with international law, it is less clear whether this procedural mechanism will make a significant contribution to the overall quest for justice as a new order emerges in the former Yugoslavia.