^* See, generally, Meron, War Crimes Law Comes of Age, 92 A.J.I.L. 462 (1998). The establishment of the ICTR in 1994 was in large part a reaction to the creation, the previous year, of the ICTY, and the Rwanda Tribunal is closely modeled on the Yugoslav Tribunal. Subsequent tribunals have been established for Sierra Leone, East Timor, Lebanon, Cambodia, and of course the International Criminal Court. In the 2011 Libyan conflict, for example, the Security Council referred the situation to the ICC within weeks of its outbreak. On the proliferation of tribunals more generally, see Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. J. INT’L L. & POL. 679 (1999).

^† See Bassiouni.

^* See Greenawalt for an interpretation of the ICTY’s origins and purposes.

^* On command theories, see chapters by van der Wilt, Hartmann at 474–480, and Williamson at 82–84, 86–87, and 88.

^† Nuremberg allowed guilt based on membership in criminal organizations, such as elements of the SS. In theory, once the criminality of the organization was established, only proof of membership would be required, not any particular showing of individual action or mental state. This was one of the most controversial elements of the IMT’s jurisdiction, and relatively little used. See, e.g., Jørgensen, Reappraisal of the Abandoned Nuremberg Concept of Criminal Organizations in the Context of Justice in Rwanda, 12 CRIM. L. FORUM 371 (2001); Marston Danner & Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law, 93 CAL. L. REV. 75 (2005).

^* A great majority of indictees were charged under Article 7(1)’s direct responsibility, but this is an umbrella concept. Around 40 percent of the ICTY’s indictees were accused of actually physically perpetrating crimes. More—about 70 percent—were charged with aiding and abetting. JCE was invoked in about 40 percent of cases, and command responsibility in about 70 percent. Ford, Measuring, Understanding, and Predicting Trial Complexity at the ICTY, SSRN working paper, 6 July 2012, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2101764; Personal Communication from Prof. Stuart Ford.

^* On JCE, see Hartmann, Prelec, Waters 298, 306-07, Meierhenrich 7ff 321-323, 340, Nielsen 335-338, 340, Van der Wilt, Del Ponte 3ff 138, 142, Lamont 205, 207, and 211, and Boas 107-109, 116, 118-119.

^† See, e.g., Boas at 116.

^‡ See, e.g., Pros. v. Popović et al. (1), Judgment (10 June 2010) (noting the Prosecution’s two separate JCEs for Srebrenica, one to murder able-bodied Muslim men and the other to remove the Muslim population). Hartmann argues that this is what the Prosecution has done through its changing genocide jurisprudence in its Bosnian cases after Milošević.

^* Conspiracy is also a substantive crime in the common law tradition, as well as a theory of liability; in ICL, JCE is not a crime in itself. The ICC’s limited jurisprudence has relied more on theories of co-perpetration, influenced more by the civil law.

^† See DRUMBL, ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW 36. Drumbl also makes a similar point in his chapter, arguing that Serbia has benefitted from the individualization of guilt through ICTY trials. Cf. Shany and Várady on the potential concerns Serbia may have had about the release of VSO documents in the ICTY’s trial.

^‡ As noted in Chapter 1, the ICTY is not the only institution holding trials for crimes in the Yugoslav wars, and indeed over time domestic institutions can, as in the case of Nuremberg and domestic German trials, try far more individuals. These institutions also rely on the logic of individualized liability, however, with the same advantages and limitations. For a comparison of the ICTY with an institution that does focus on state responsibility, see Shany.

^* See Hartmann.

^* Anoya’s chapter discusses this office.

^† See Anoya and Armatta at 283-284 on the defense function at the ICTY.

^* In 1998, a single team conducted very preliminary investigations of both sides of the conflict. See Williamson at 79 and 84-85. But these investigations were not focused on Milošević himself, and by the time they were, in Spring 1999, the team’s work was scrupulously segregated, even from teams working on Serb-related cases in Bosnia and Croatia that would later form parts of the trial.

^† See Williamson at 85. See generally Williamson, Del Ponte, and Askin on the Prosecution’s investigations in Milošević, and Bassiouni on earlier investigations. See also Hartmann on the subsequent history of some of those other investigations for Croatia and especially Bosnia.

^‡ See Waters at 305–06.

^* Several chapters discuss the enormous documentary record created by Milošević and other trials: Nielsen, Prelec, and Waters.

^† Trix at 242-244 and 246-247 is highly critical of the effects of written testimony.

^‡ Surroi at 226-227 discusses the effects of a multilingual courtroom—or rather, a courtroom in which multiple languages are used with varying fluency. Trix at 245-246 criticizes the reliance on Serbian place-names.

^§ Tadić was taken into custody by the Tribunal in October 1994, but the intervening period was taken up with extensive pretrial proceedings.

^* Bachmann discusses the importance of preexisting perspectives for interpretations of the Tribunal’s work.

^† MOS is an acronym for the three accused—Milutinović, Ojdanić, and Šainović—who were originally indicted with Milošević for crimes in Kosovo, but later tried separately together with three other senior Serbian military and security officials—Sreten Lukić, Nebojša Pavković, and Vladimir Lazarević. The case, also sometimes known as Kosovo, was formerly abbreviated in Tribunal documents as Milutinović et al.; however, following the acquittal of Milutinović, the appeal is known as Šainović et al. See Pros. v. Milutinović, Šainović, Ojdanić, Pavković, Lazarević, & Lukić, IT-05-87-T, Judgment (26 Feb. 2009); Pros. v. Šainović, Ojdanić, Pavković, Lazarević, & Lukić, Prosecution Appeal Brief (21 Aug. 2009).

^‡ Nielsen and Hartmann in particular extensively discuss these and other cases related to Milošević.

^§ See, e.g., Pros. v. Milutinović et al., IT-05-87-T, Judgment, Vol. 3, 1206–12 (26 Feb. 2009) (convicting five of the six accused on various charges, but finding that only one, Nebojša Pavković, had sufficient knowledge to be held liable for sexual assaults committed by subordinates, and Vol. 3 at p. 481, Judge Chowhan dissenting); in particular, on Šainović, see id. 469, 472, 475–76, 1208; Ojdanić, see id. 539ff, 598 (failure to discipline), 629 (sexual assault), 621–22 (finding that failure to prevent or punish, where there is a duty to do so, can constitute direct responsibility under Art. 7(1), as well as command responsibility under 7(3)); on Pavković, see id. 784–85, 787 (finding no need to discuss other forms of liability given findings in relation to direct liability). In all these cases, the Chamber analyzed command responsibility as a residual category, applicable only if liability had not been established under Article 7(1) through a JCE theory. In his trial, Milošević was charged with crimes of sexual violence under both direct and command responsibility. See, e.g., Milošević case (2), Amended Indictment (Bosnia) (22 Nov. 2002) 32, 35(c and e), 39 (listing sexual violence under counts covering genocide, persecutions, crimes against humanity, grave breaches, and violations of the laws and customs of war).

^* Boas at 111-112 discusses the effects that decisions made about joinder during Milošević have had on judges’ incentives to expedite trials and on the Prosecution’s calculations, once the pressures of the completion strategy came into play.

^† Greenawalt discusses the Tribunal’s relationship to the Security Council, at 379-380, 384.

^* See Williamson and Bassiouni on cooperation with and support from NATO.

^† Askin and Greenawalt, among others, discuss the specific jurisprudential legacy of the ICTY.

^* One might make a similar argument for Macedonia—that the existence of the Tribunal exercised a constraining influence. And of course, by definition, truly successful deterrence would be largely invisible. Greenawalt at 380 discusses the deterrence logic of ICL.