In a notable milestone for the legacy of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Association for Defense Council Practicing before the ICTY (ADC-ICTY) announced the release of its “Manual on International Criminal Defense” in late 2011, officially launching it in February 2012.
The Manual is the product of the EU-funded War Crimes Justice Project, a joint effort by the ADC-ICTY and UN Interregional Crime and Justice Research Institute, coordinated by the Organization for Security and Co-operation in Europe. Following a path laid clear by the Tribunal’s “ICTY Manual on Developed Practices (2009),” the Manual on International Criminal Defense (Manual) is the first legacy document of its kind to function as a treatise on international criminal defense proceedings before the ICTY.
The Manual is specifically tailored to the unique challenges of defense activities before the ICTY and is intended to be of practical use for domestic war crimes courts in the region of the Former Yugoslavia. It is also designed to be a resource for international criminal defense jurisprudence writ large. The Manual’s diverse pool of authors are defense lawyers who have practiced before the ICTY and national courts in the region of the Former Yugoslavia, representing the collective defense experience of the ADC-ICTY over its decade of existence, as well as the experience of previous defense counsel since the founding of the ICTY.
The Manual presents prose-based explanations and case-specific interpretations of the ICTY’s Rules of Procedure and Evidence (RPEs), information that would take months to compile for even an experienced defense lawyer beginning practice at the ICTY. The explanations are tailored to reflect the ICTY’s blend of civil and common law traditions, providing lawyers with extensive practice experience in either tradition with an expedited primer in an often unfamiliar system of procedure. This civil law-common law blend has presented difficult hurdles since the ICTY’s first case, Prosecutor v. Erdemović, where both the Accused’s counsel and the Trial Chamber came from civil law systems in which a guilty plea is typically an evidentiary consideration for the court, rather than a mitigating factor in sentencing. The Accused’s counsel and the judges had to learn the common law concept of a plea agreement to practice before the Tribunal, as required by Rule 62 ter of the RPEs. The Manual effectively reduces the barriers to entry in a legal practice area typically hampered by a lack of experienced legal professionals.
Structurally, the Manual outlines every stage of a defense proceeding before the Tribunal, from initial indictment through post-conviction appeals in domestic legal systems carrying out ICTY sentences. Each chapter provides practical tips from ICTY cases to explain the applicable RPEs and novel legal concepts, such as Joint Criminal Enterprise, that have emerged more recently. Furthermore, the Manual makes occasional distinctions between ICTY practices and those adopted by the Rome Statute of the International Criminal Court.
Recognizing the broad stakes of international criminal trials, the Manual begins with an extensive look at reasonable doubt, the prosecution’s standard of proof for ultimate guilt and underlying facts, highlighting the ICTY’s strict interpretation of the presumption of innocence. Following an explanation of affirmative defenses, the Manual provides a guide to developing a case theory and strategy, complete with a chapter on the logistics of defense investigations that details methods for adequately taking advantage of the defense’s reliance on the Office of the Prosecutor when building a defense, while also conducting independent investigations. The Manual then provides a basic approach to structuring a legal argument, before extensively covering the ICTY’s permissive standards for accepting evidence, and noting the criticism this approach often faces. The use of witnesses is covered next, followed by an explanation of the witness examination process. The Manual then explains the plea agreement concept and the associated sentencing process, finishing with the appeals process, and various post-conviction issues.
The ICTY’s contribution to the budding field of international criminal defense is enduring and highly regarded, as evidenced in frequent citation by the other ad hoc and hybrid courts and the International Criminal Court. The ICTY was the first international criminal justice court, and the experience it imparts in the Manual will serve to memorialize its accomplishments, while promoting the right to a fair trail that is pivotal to the legitimacy of the international criminal courts that have formed in its wake.