Procedural lawmaking at the International Criminal Tribunals

This chapter examines the role played by the judges in creating the procedural rules which govern the functioning of the ad hoc Tribunals. Noting that the bench had been tasked with devising its own rules of procedure and evidence, it queries whether judicial lawmaking in this context at the Tribunals has proven effective on the whole. It highlights the lack of transparency regarding the process of amending the Rules of Procedure and Evidence, and the possibility that this lawmaking power may undermine judicial independence and conceptions of the separation of powers. In considering possible lessons to be learned, the chapter asks whether the ad hoc Tribunals may themselves have contravened international human rights law, most notably in relation to the mechanism allowing for provisional release.