Panel I: Discussion on ICTY’s Contribution to International Criminal Courts and Tribunals

Summary

The panel examined how the International Criminal Tribunal for the former Yugoslavia (ICTY) developed practical and legal foundations for international criminal justice despite being created in 1993 with few precedents, little infrastructure, and no established procedures. Speakers argued that its work shaped later courts and tribunals, while also highlighting shortcomings and lessons that should not be overlooked.

Legal innovations and victims’ rights

Judge Elizabeth Odio-Benito described the tribunal’s early legal innovations, particularly its treatment of sexual violence. She highlighted Rule 96, which prevented consent from being used as a defense in specified circumstances involving sexual violence, and the Čelebići case, where rape was addressed as a war crime and responsibility was considered for both military and civilian superiors. She also recalled the Tadić proceedings and their effect on the tribunal’s authority and the law governing armed conflict.

In her view, the ICTY helped establish a gender perspective in international criminal law and influenced the Rome Statute. She also noted an important gap: ICTY victims participated principally as witnesses, without reparations or a formal role in proceedings. The tribunal’s outreach work helped inform later provisions on victims’ participation and reparations, though she considered the ICC’s record on victims of sexual violence disappointing.

Negotiated guilty pleas

Mark Harmon discussed the adoption of negotiated guilty pleas, an approach that was initially unfamiliar and controversial to some lawyers working in civil-law traditions. He recounted the case of Dražen Erdemović, whose cooperation provided evidence about killings at the Branjevo farm and the Pilica cultural center. The proceedings helped establish safeguards and rules for guilty pleas at the ICTY.

Harmon said plea agreements could:

• Secure evidence and conserve resources.
• Reduce the need for victims and witnesses to testify repeatedly.
• Contribute to public acknowledgment of crimes.

However, he stressed that plea agreements do not guarantee full justice or sincere remorse. In the discussion, he acknowledged the approach’s limits and noted that Erdemović was a low-ranking soldier, not someone positioned to expose senior command structures.

Defense representation

Colleen Rohan described the early lack of institutional support and collective representation for defense lawyers. The creation of an independent defense bar association in 2002 gave counsel a shared voice, helped establish professional standards and eligibility procedures, and provided trial-skills training.

The association also offered ethics advice, submitted amicus briefs, and produced a practical defense manual that was translated and used beyond the ICTY. Rohan said its model informed the newer ICC defense association, while stressing that defense groups in different courts continue to struggle for recognition, resources, and influence.

The Registrar’s Secretariat

Martin Petrov presented the Registrar’s Secretariat as essential to making the tribunal function. Its work included:

• Setting up court facilities and courtroom technology.
• Managing detention and transport.
• Arranging witness travel and support, and protecting witnesses.
• Providing multilingual interpretation and translation.
• Administering legal aid and assisting accused persons who represented themselves.
• Conducting outreach to explain the tribunal’s work to affected communities.

Petrov said later courts adopted or adapted many of these practices, while some were able to address weaknesses the ICTY had faced. He cautioned that the tribunal’s existence did not prevent the Srebrenica genocide, but argued that its eventual success showed international criminal justice could operate in practice.

Questions and discussion

Audience questions raised the limits of the ICTY’s legacy and the risks of repeating its mistakes. Panelists identified overly broad indictments as a drain on resources and questioned whether self-representation works in complex international trials. Rohan said defense associations often have to fight recurring battles for recognition and adequate support.

A question about guilty pleas cited the cases of Erdemović, Biljana Plavšić, and Milan Babić. The questioner argued that pleas may obscure connections to senior leaders, allow defendants to minimize their roles, or place heavy burdens on cooperating witnesses. Harmon replied that prosecutors must assess whether remorse is genuine and that plea agreements are imperfect tools, not guarantees of complete justice.

Asked whether new tribunals could be established for situations including Libya, Afghanistan, and Iraq, Odio-Benito said political will was decisive. She pointed to broader participation in the Rome Statute or Security Council referrals to the ICC as possible routes, while emphasizing the need for political and financial support.

Presenters and contributors

Panel: John Hocking (moderator); Judge Elizabeth Odio-Benito; Mark Harmon; Colleen Rohan; Martin Petrov.

Audience questioners identified in the subtitles: Dov Jacobs, Khalid Ahmed, Nela Truck, and Kate Macintosh.