Completing the Mandates of the Ad Hoc International Criminal Tribunals: Lessons from the Nuremberg Process?

On September 2, 2004, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) filed a formal request for the transfer of the Ademi & Norac case to Croatia, pursuant to Rule 11 bis of the ICTY Rules of Procedure and Evidence (“ICTY RPE”). With this filing, the Prosecutor took an important and positive step towards giving effect to the completion strategy of the ICTY. This Article will discuss the steps taken by the ICTY and its sister institution, the International Criminal Tribunal for Rwanda (“ICTR”), to fulfill their mandates by focusing only on the most senior perpetrators while ensuring that minor perpetrators do not escape liability by transferring the cases involving such individuals to national jurisdictions for trial. Because few States have ever undergone a process of closing their criminal justice systems, there are few precedents to guide the ICTY and ICTR leadership in the challenges that they will face in this endeavor. The Nuremberg process, however, as the sole example of closing an international criminal justice “system,” provides a unique spectrum through which to observe and compare the approaches taken in the completion strategies of the ICTY and ICTR [hereinafter ad hoc International Criminal Tribunals], and should also inform the Tribunal leaders with respect to problems that may arise in their implementation. Among the subjects at issue are the persons to be prosecuted, the courts or tribunals before which persons will appear, and the degree of cooperation between these institutions