INTRODUCTION

It is an honour to contribute to this unique forum, which brings together distinguished members of domestic and international judiciaries with the goal of discussing matters that remain largely mystical to the public (each judiciary‘s very constituents), confined as they are within the hallowed corridors of justice. Although the internal workings of some domestic courts, such as the US Supreme Court, are frequently the subject of public fascination and scrutiny, little is known about the decision-making process at international courts.

The goal of this brief chapter is to lift, to the extent possible, this veil of secrecy covering the deliberations at the ad hoc international criminal tribunals – namely, the International Criminal Tribunal for the former Yugoslavia (ICTY), which closed its doors at the end of 2017, and the (now also defunct) International Tribunal for Rwanda (ICTR). The focus of this chapter will, more specifically, be the Appeals Chambers shared by the ICTY and the ICTR for about 20 years. The ICTR having ceased operations in 2015 and the ICTY in 2017, the demystification of the deliberation process at the last instance body of these remarkable institutions can only be meant as a tribute to their enormous contributions to the development of international criminal law. Inevitably, any discussion about the ad hoc tribunals must also extend to the innovations introduced by the ICTY’s and ICTR’s successor institution, the Mechanism for International Criminal Tribunals (MICT).

It goes without saying that the actual content of judges’ discussions and their votes on particular issues in specific cases fall beyond the scope of this chapter. These aspects of the deliberation process are squarely covered by time-honoured principles of secrecy and confidentiality that must be respected at all times and at all costs if judges, both domestic and international, are to deliberate impartially and fulfil their duties uninfluenced by external factors.

What the secrecy of deliberations does not protect, however, is the decisionmaking process itself, ie the distinct procedural steps judges follow to resolve the controversies before them. Judges at international criminal tribunals have formulated, over the years, specific working methods and procedures to determine the liability of the indicted individuals for the crimes charged.