Roundtable Blog: Peace Without Possession—Preserving Ukraine’s Territorial Integrity in Negotiations

Roundtable Blog: Peace Without Possession—Preserving Ukraine’s Territorial Integrity in Negotiations

Editor’s Note:
This post is part of the PILPG Lawyering Justice blog’s roundtable series. Rather than a traditional co-authored piece, it presents a curated set of expert reflections from members of PILPG’s Ukraine Peace Negotiations Working Group. Drawing on the diverse expertise of our Peace Fellows, this roundtable-style blog explores the discussion surrounding Ukraine’s territorial integrity.  Published under the Lawyering Justice banner, this post reflects our commitment not only to chronicling the legal and diplomatic dimensions of active conflicts, but also to fostering strategic foresight and connecting lawyering to policy planning. We hope this format will serve as a model for future collaborative work on peace and justice.

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In the context of ongoing hostilities, Ukraine faces a critical dilemma: how to enter into peace negotiations while lacking control over parts of its territory and with the understanding that negotiating the return of the territory is unlikely. The stakes are high. Any misstep could weaken Ukraine’s sovereignty claims, embolden future aggression, or fracture international consensus. With these risks in mind, the Public International Law & Policy Group’s Ukraine Peace Negotiations Working Group convened a roundtable to examine the legal, political, and strategic dimensions of preserving territorial integrity in the absence of de facto control.

Participants were asked to consider six interrelated questions: what is the legal basis for assessing territorial questions in Ukraine; how Ukraine can best negotiate without possession; what legal instruments preserve territorial claims over time; how EU and NATO pathways intersect with unresolved occupation; how to navigate dueling constitutional claims; and whether strategic ambiguity risks weakening Ukraine’s legal position. The discussion drew on comparative precedents, international law, and realpolitik assessments of the current diplomatic landscape.

The purpose of this public-facing Roundtable Blog is threefold: to inform Ukrainian policymakers and Peace Formula stakeholders of the legal and strategic variables shaping territorial negotiations; to connect Ukraine-focused expertise with broader international practice; and to provide analytically grounded perspectives that can guide the development of durable, sovereignty-preserving peace frameworks.

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1. Territorial Integrity

What is the legal framework in which territorial questions should be assessed during peace negotiations?

Dr. Paul R. Williams

Any peace negotiations in Ukraine must be conducted within the framework of international law that categorically prohibits the acquisition of territory through aggression and affirms the principle of territorial integrity as enshrined in the UN Charter. The law of occupation makes clear that effective control does not alter sovereignty, meaning Ukraine’s legal title to its territory remains intact regardless of Russia’s presence on the ground. Negotiations must therefore assess territorial questions through the lens of continuity of non-recognition of unlawful annexation, ensuring that temporary arrangements or ceasefire lines are not mistaken for permanent borders. This framework preserves Ukraine’s sovereign rights while preventing the normalization of territorial conquest in international practice.

Sindija Beta

Any peace negotiations in Ukraine must recognize that territorial integrity is not simply a legal principle but a political safeguard against legitimizing aggression. International law prohibits territorial acquisition by force, and past precedents show that concessions made under pressure often become permanent fractures in rule of law. Ukraine’s legal title to its territory remains intact despite Russia’s military control, but negotiations must be structured to prevent Moscow from altering legal norms based on military force. Territorial questions should therefore be addressed as matters of international law, ensuring that the process reinforces international norms rather than erodes them.

Kateryna Kyrychenko

Territorial questions in peace negotiations must also account for the cultural rights at stake in the territories under temporary occupation. International human rights law guarantees the right of all communities to maintain their language, education, and cultural identity - rights that have been systematically violated in the occupied regions through forced Russification, the suppression of Ukrainian education, and efforts to erase local cultural heritage. These rights can only be meaningfully protected within Ukraine’s internationally recognized borders and under its legitimate authority.

Russia’s attempts to justify annexation through claims of “self-determination” or cultural protection have no legal basis: cultural rights are safeguarded through respect for territorial integrity, not through coerced referenda or occupation. Any peace negotiations must therefore reinforce non-recognition of Russia’s unlawful annexations and affirm that restoring Ukraine’s sovereignty is essential to protecting the cultural rights of affected communities.

Ambassador Ylber Hysa

Ukraine’s territorial integrity must remain the unambiguous end state of any negotiation process. It should not be reduced to declarative legal rhetoric. To reach this end state, the Ukrainian side may consider tactical and temporary transitional arrangements that facilitate the conditions for eventual full territorial reintegration.

These transitional steps would not replace or weaken Ukraine’s sovereignty claims. Rather, they provide operational pathways to realize them.

A feasible component of such a transitional framework is the establishment of a Peacekeeping Transitional Period (PTP) within the currently Russian-occupied territories. This PTP would operate under a UN-mandated or internationally mandated peacekeeping mission for a defined period (e.g., five years).

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2. Peace Without Possession

How can Ukraine enter into a peace agreement while lacking control over parts of its territory without undermining its long-term legal claim to those regions?

Professor Michael Kelly

Overlaying a current military control map with Ukraine’s geological survey reveals that the western parts of Donetsk and Zaporizhzhia, which are still under Ukrainian control, contain significant rare earth mineral deposits. These resources are likely to become bargaining chips in any transactional negotiation, particularly given that the Trump administration has already signed a rare earths deal with Ukraine. This dynamic is expected to shape trilateral discussions between Trump, Zelenskyy, and Putin. A recent Just Security article co-authored with Craig Martin outlines this scenario in greater detail.

Ambassador Ylber Hysa

The western parts of Donetsk and Zaporizhzhia, currently Ukrainian-controlled areas, contain significant rare earth mineral deposits, which may become a factor in negotiations, particularly within a transactional framework associated with a potential future U.S. administration.

However, comparable geological resources exist in the Russian-occupied territories as well. These resources should therefore be integrated into negotiation strategies as potential assets. A useful historical precedent is the post–World War II Saar–Ruhr arrangements, where resource governance played a stabilizing and cooperative role without undermining national sovereignty.

Professor David Crane

Neither Putin nor Zelenskyy is politically positioned to concede territory. Putin has suffered too many casualties to retreat without consequence, and Zelenskyy would face political collapse if he conceded land after such sacrifice. This impasse suggests that the war is unlikely to end soon. One possible approach is to establish local self-governance in the occupied provinces under a ceasefire, supported by neutral third-party peacekeepers modeled on the Sinai mission. However, any such arrangement must rest on the international community’s continued recognition of these regions as Ukrainian territory.

Professor Milena Sterio

Under the law of occupation, control does not equate to sovereignty. Ukraine retains its de jure claim to all territories currently under Russian control. This legal distinction must be preserved in any peace framework, as it forms the foundation for future reintegration and international support.

Ambassador Elayne Whyte Gomez

The current situation represents a new paradigm. While the international community has consistently recognized Ukraine’s borders, which have been affirmed in seven UNGA resolutions, this year's events at UNGA and UN Security Council changed some configurations and alliances at the UN regarding some Ukraine-sponsored texts. Any peace process must remain anchored in international recognition to avoid legitimizing aggression through ambiguity.

Ambassador Zorica Marić-Djordjević

Ukraine can enter into peace negotiations without conceding sovereignty by managing occupation rather than ratifying it. International law prohibits the acquisition of territory by force. Peace agreements must include “without prejudice” clauses, avoid sovereignty language, and refer to occupied areas as “territories temporarily outside the effective control of the Government of Ukraine.” These legal choices are essential to shaping a post-war order that upholds international norms.

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3. Legal Instruments for Continuity

What international legal instruments or precedents can Ukraine invoke to preserve its territorial claims over the long term?

Professor Milena Sterio

The law of occupation and the principle of non-recognition of territorial acquisition by force are Ukraine’s strongest legal tools. These doctrines have been upheld in numerous conflicts and must be embedded in any peace agreement. The agreement should avoid any implication of territorial transfer and instead reinforce Ukraine’s continuing legal title.

Ambassador Zorica Marić-Djordjević

Operationalizing legal continuity requires the use of administrative and security language rather than sovereignty terms. Ceasefire lines must not be mistaken for borders, and demilitarized zones must not imply territorial concessions. The legal framing must reflect temporary control, not permanent change, to ensure that Ukraine’s territorial claims remain intact.

Professor David Crane

Putin is relying on time and distraction to wear down Ukraine and its allies. In contrast, consistent international recognition serves as Ukraine’s legal and diplomatic shield. The tools exist; the challenge lies in using them visibly and persistently. Sustained and coordinated use of these instruments will ensure that Ukraine’s sovereignty remains protected even in the absence of immediate territorial control.

Ambassador Elayne Whyte Gomez

Ukraine’s principled legal position is gaining traction, particularly in the non-aligned countries. Many smaller states now see their own struggles reflected in Ukraine’s experience. This emerging solidarity could become a powerful force in sustaining legal continuity and resisting the normalization of occupation.

Ambassador Ylber Hysa

Ukraine can engage in peace negotiations without recognizing or legitimizing the occupation by adopting a framework that focuses on managing the temporary situation rather than accepting any permanent change.

To ensure this, ceasefire lines must not be interpreted as borders, demilitarized zones must not imply territorial concessions, and all legal and diplomatic language should explicitly describe any control arrangements as temporary and linked to a defined peacekeeping mandate. This approach preserves Ukraine’s sovereignty claims and prevents any de facto normalization of the occupation. It maintains the legal and political foundation for full territorial restoration once the international environment becomes more favorable.

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4. EU and NATO Pathways

How should Ukraine’s territorial integrity be addressed in the context of EU accession or NATO integration, particularly if parts of its territory remain under foreign control?

Professor David Crane

EU accession remains one of the most powerful strategic signals the international community can send to Russia. It demonstrates that Europe is not prepared to walk away from Ukraine’s future. The credibility of this pathway lies not only in its symbolic value but in its potential to unlock long-term political and economic integration that reinforces Ukraine’s sovereignty.

Ambassador Elizabeth Richard

NATO membership is politically untenable in the current climate. It remains a red line for Russia and would likely trigger disproportionate demands in any negotiation. In contrast, EU membership is both strategically viable and politically palatable. It offers Ukraine a credible path forward without escalating tensions, and it should be prioritized accordingly.

H. E. Dr. Igor Luksic

The EU path is not only a matter of legal alignment but also of strategic necessity. Ukraine’s integration into the EU could unlock vital resources for reconstruction, economic stabilization, and institutional reform. The precedent of Finland’s post-war transformation is instructive. While not directly analogous, it illustrates how strategic alignment with Europe can serve as a stabilizing force. Ukraine should insist on this track with greater urgency.

Professor Michael Kelly

Cyprus provides a compelling precedent. Despite being territorially divided following Turkey’s 1974 invasion and the continued occupation of the northern part of the island, Cyprus acceded to the European Union in 2004 with the strong advocacy of Greece acting as its sponsor state. The EU’s legal framework accommodated this division by suspending the application of EU law in the occupied areas while affirming the Republic of Cyprus’s sovereignty over the entire island, thereby preserving the principle of non-recognition of occupation. For Ukraine, the precedent demonstrates that full and effective territorial control is not an absolute prerequisite for EU membership, provided there is a committed sponsor or coalition of states willing to champion its accession. The decisive factor will be whether EU leaders summon the political will to treat Ukraine’s membership as a strategic move that signals Europe’s refusal to compromise on sovereignty and territorial integrity.

Ambassador Zorica Marić-Djordjević

The legal and political layers of EU accession must be addressed in tandem. While full and effective control is typically required, the Cyprus model demonstrates that suspended application of EU law in occupied territories is feasible. What matters is that the EU explicitly affirms Ukraine’s territorial integrity and commits to reintegration and reconstruction. The EU should treat Ukraine’s accession as a strategic imperative, not a procedural formality.

Tyler Thompson

Russia’s preferred model for Ukraine is Austrian-style neutrality—a Cold War-era posture that avoids NATO alignment while preserving nominal sovereignty. EU membership, however, is a tolerable outcome for Moscow and should be leveraged accordingly. The United States should press Brussels to make a political decision, as it did with Portugal and Spain after their transitions from dictatorship. Strategic ambiguity on this front only benefits Russia.

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5. Constitutional Claims

How can Ukraine navigate the fact that both it and Russia enshrine Donbas and Crimea in their constitutions?

Dr. Paul R. Williams

The challenge of dueling constitutional claims is not new, but it is particularly acute in this context.  The international community must avoid falling into the trap of false equivalence. Its legal position is grounded in international law, while Russia’s rests on unilateral assertions and coercive annexation. The distinction must be made explicit in every negotiation and public communication.

Tyler Thompson

Russia has long used constitutional amendments and legal rhetoric to accumulate bargaining chips. This is part of a broader lawfare strategy, refined through its experiences in Georgia and Kosovo. The goal is not legal clarity but leverage. Ukraine and its allies must anticipate this and ensure that international legal standards, rather than domestic proclamations, frame the discussion.

Professor Milena Sterio

International law provides clear criteria for the legitimacy of referenda and declarations of independence. Any referendum must be free, fair, and conducted without coercion. Unilateral declarations obtained through force are invalid. Ukraine’s legal position is strong if it continues to emphasize these principles and avoids mirroring Russia’s constitutional framing.

Ambassador Zorica Marić-Djordjević

Russia’s invocation of Kosovo is legally flawed. Moscow repeatedly cites Kosovo as precedent in order to justify its annexation of Crimea and its claims over occupied Ukrainian territories, arguing that the West recognized unilateral secession in Kosovo and therefore cannot deny Russia the same right. This comparison, however, ignores critical distinctions. Kosovo was not annexed; Crimea was. Kosovo operated under a UN mandate and international oversight; Russia acted unilaterally and by force. Moreover, Serbia’s constitution still claims Kosovo, but that has not altered Kosovo’s international status. Ukraine must highlight these differences and reject any narrative that equates its legal position with Russia’s, underscoring that Russia’s reliance on Kosovo is a political tactic rather than a valid legal precedent.

Professor David Crane

Domestic constitutional claims are a distraction. They do not override international law and should not be treated as legitimate bargaining tools. Ukraine’s legal team must remain focused on international norms and avoid being drawn into debates over internal legal texts.

Ambassador Elayne Whyte Gomez

There is growing awareness among the non-aligned states of the power dynamics at play in Ukraine’s case. This creates an opportunity for Ukraine to build broader coalitions and reinforce its legal position through shared experience and solidarity. The moment is ripe for strategic engagement beyond traditional allies. Many of these states have themselves faced pressures from larger powers and are increasingly sensitive to questions of sovereignty and territorial integrity. By framing its struggle as part of a wider global narrative against coercion and annexation, Ukraine can strengthen its legitimacy and broaden the base of international support.

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6. Strategic Ambiguity vs. Legal Clarity

Can Ukraine afford to use strategic ambiguity in peace negotiations, or does this risk weakening its long-term legal claim?

Professor Milena Sterio

Strategic ambiguity may offer tactical flexibility, but it carries long-term risks. Any ambiguity in the legal framing of a peace agreement could be exploited to undermine Ukraine’s territorial claims. The agreement must clearly distinguish between temporary arrangements and permanent sovereignty. Legal clarity is essential to preserving Ukraine’s rights under international law.

Tyler Thompson

Russia thrives in legal grey zones. Its lawfare strategy depends on exploiting ambiguity and reframing facts on the ground as legal precedent. Ukraine cannot afford to leave gaps in its legal position. Every omission becomes an opportunity for reinterpretation. The peace framework must be airtight.

Ambassador Elizabeth Richard

While the U.S. administration may appear distracted, the Department of Defense remains deeply engaged. There is still significant political and financial investment in Ukraine’s success, even if it operates below the radar. That institutional commitment should be leveraged to support a peace framework grounded in legal clarity and strategic foresight.

Ambassador Ylber Hysa

Peace negotiations between Ukraine and Russia should be understood not as a single event, but as a complex, evolving process. Within this framework, Ukraine’s territorial integrity must be treated as an active strategic objective, guiding the negotiation dynamics rather than existing solely as a formal legal principle.

In this context, strategic ambiguity does not contradict legal clarity. Instead, it can serve as a pragmatic tool for securing Ukraine’s long-term strategic red lines while preserving diplomatic flexibility during negotiations.

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Professor Michael Kelly: Professor at Creighton University School of Law and The Senator Allen A. Sekt Endowed Chair in Law

Professor David Crane: Founding Chief Prosecutor of the UN Special Court for Sierra Leone and Distinguished Scholar in Residence at Syracuse University College of Law

Professor Milena Sterio, the James A. Thomas Distinguished Professor of Law at Cleveland State University's Cleveland-Marshall College of Law and Managing Director at PILPG

Ambassador Elayne Whyte Gomez: Senior Fellow of the UN Institute for Disarmament Research, Professor at Johns Hopkins School of Advanced International Studies, and former Ambassador and Permanent Representative of Costa Rica to the United Nations

Ambassador Zorica Marić-Djordjević: Former Head of the Permanent Mission of Montenegro to the WTO and Special Representative to the UN Human Rights Council

Ambassador Elizabeth Richard: Former U.S. Ambassador and Assistant Secretary of State for Conflict and Stabilization Operations

H. E. Dr. Igor Luksic: the former Prime Minister of Montenegro

Tyler Thompson: Chief Negotiation Officer & Co-Founder, Expeditionary

Ambassador Ylber Hysa: Former Ambassador of the Republic of Kosovo to Montenegro and North Macedonia

Dr. Paul R. Williams: Rebecca Grazier Professor of Law and International Relations at American University

Sindija Beta: Legal Officer at Public International Law & Policy Group

Kateryna Kyrychenko: Head of Ukraine Legal Affairs and Program Management at Public International Law & Policy Group

Nuclear Testing: An Inflection Point or Another Step Toward Confrontation?

Nuclear Testing: An Inflection Point or Another Step Toward Confrontation?

By Ambassador (Ret.) Zorica Maric Djordjevic, Senior Peace Fellow, Public International Law & Policy Group (PILPG)

A New Round Begins in Moscow

By late October 2025, two troubling signals came from the world’s most powerful military nations — Russia and the United States.

The first move came from Moscow. President Vladimir Putin announced that Russia had completed tests of two nuclear-powered delivery systems. These were Burevestnik, a long-range cruise missile, and Poseidon, an underwater torpedo designed to devastate coastal regions with a radioactive surge. Both, reportedly, could evade existing missile defenses, creating a direct challenge to U.S. plans to build an expanded “Golden Dome.” Russian officials later clarified that both tests were non-nuclear, involving delivery systems rather than atomic warheads.

Within days, President Trump declared that the United States would keep pace with China and Russia and instructed the Department of War to resume nuclear-weapons testing. Officials later noted that such tests might involve system components rather than full detonations. Soon afterward, Washington unveiled its next-generation stealth nuclear cruise missile, the AGM-181 LRSO, signaling that the U.S. would match or outpace its rivals.

Putin responded by ordering the preparation of proposals for Russian nuclear testing should Washington proceed. “If the U.S. conducts such tests,” he said, “Russia must also take appropriate retaliatory steps.”

These exchanges rekindled the specter of superpower rivalry and signaled a return to competitive deterrence. For more than three decades, the Comprehensive Nuclear-Test-Ban Treaty (CTBT) has embodied a global consensus against nuclear explosions. Though the Treaty has not entered into force due to several key states not ratifying it (including the U.S., China, Iran, India, Pakistan, and North Korea), it has created a powerful informal norm. The global monitoring system of the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) ensures nearly certain detection.

Since 1996, only India, Pakistan, and North Korea have violated this norm, and each test was detected. Russia’s and Washington’s recent announced decisions risk unraveling this restraint:

• Vertically, by legitimizing renewed testing and modernization among established nuclear powers.

• Horizontally, by weakening the normative barrier that deters aspirants from pursuing nuclear weapons.

Arms control rests on predictability. The long-standing assumption that no major power would resume nuclear testing preserved a baseline of trust. Once that assumption erodes, the architecture weakens. A return to testing may not ignite an immediate arms race, but it increases uncertainty and shifts future negotiations toward escalation management rather than risk reduction.

A Global Ripple Effect

Moscow’s reaction following Putin’s initial comments remains mixed. While the Russian Ministry of Foreign Affairs sought clarity on whether Washington intended to conduct full explosive tests or limited system trials, Putin warned of reciprocal actions that could inject volatility into an already fragile arms-control architecture. Nuclear parity has long anchored Russia’s conception of sovereignty and great power status. Any U.S. move toward testing, even a symbolic one, is seen through this lens. Putin’s unveiling of new nuclear systems added a deliberate symmetry: technological display as diplomacy.

Moreover, the revival of nuclear testing reverberates far beyond the U.S.–Russia dyad. China, which has not conducted explosive tests in decades but continues to modernize its arsenal rapidly, may feel compelled to respond. Even a symbolic U.S. test could accelerate strategic competition among the three major powers and undermine the CTBT’s already fragile authority.

For smaller and non-nuclear states — from Eastern Europe and the Western Balkans to the South Caucasus — renewed great-power signaling produces deep unease. Their security rests on predictable conduct by major powers and the credibility of international law. When deterrence eclipses dialogue, these foundations weaken.

In contrast, large parts of the Global South, including Latin America, Africa, Southeast Asia, and the South Pacific, remain firmly committed to Nuclear-Weapon-Free Zones. Their stance underscores a widening divide between states anchored in legal restraint and those asserting power through capability.

The long-standing nuclear taboo, driven by political restraint rather than formal rules, is now less certain.

The Ukraine Factor: Negotiations Under Nuclear Shadows

The current nuclear signaling between Russia and the United States does not take place in isolation; the war in Ukraine directly shapes it. Nuclear security has become part of the negotiating environment itself, not a parallel or distant issue. As a result, any diplomatic endgame must now account for:

• Why nuclear brinkmanship has intensified,

• How it reshapes incentives and red lines of all parties, and

• Why nuclear stability is becoming an important pillar of a future peace framework.

For Ukraine, the impact is double-edged. A more assertive U.S. posture offers reassurance, but it may also encourage Moscow to prolong the conflict in hopes of generating pressure on Washington. The risk is that negotiations devolve into a test of political endurance rather than a search for compromise — a dynamic in which deterrence logic overwhelms diplomacy.

Because recent Russian and U.S. announcements - from new Russian delivery systems to Washington’s intention to resume nuclear testing - demonstrate that strategic deterrence is once again contested, the new “28-point U.S. peace proposal” places renewed emphasis on credible Ukrainian security guarantees. These proposed “reliable guarantees” may fall short of full NATO membership and reportedly include meaningful restrictions on Ukraine, but they also reflect a core reality: when the nuclear threshold is publicly challenged, Ukraine’s vulnerability increases, and normative deterrence alone becomes insufficient. If deterrence is under strain at the nuclear level, it must be reinforced at the conventional and strategic levels for Ukraine. Without that reinforcement, any peace settlement risks becoming unstable – or even unworkable.

For Europe, caught between deterrence and diplomacy, the challenge is to keep communication channels open, especially for nuclear risk-reduction and humanitarian issues, even as the broader strategic environment hardens. 

Ultimately, nuclear signaling does not close the door to negotiations, but changes their architecture. The task for Washington is to convert deterrence into diplomatic leverage, using strength not to foreclose talks, but to enable them. In the end, nuclear testing may strengthen military power, but it weakens trust, the essential currency of diplomacy. The world now stands between a harder peace or a more protracted war.

Between Deterrence and Diplomacy

If Washington and Moscow continue to define strength through demonstration rather than dialogue, the space for diplomacy — especially on Ukraine — will continue to contract. What emerges may not resemble the classical Cold War arms race, but something more unstable: a world where uncertainty itself becomes a strategic instrument.

Whether this moment becomes a turning point or merely another step toward confrontation depends on how the major powers act. Nuclear testing can stabilize deterrence or destabilize diplomacy. Managed wisely, it could remind all sides of the catastrophic costs of miscalculation and ground arms control. Mishandled, it risks opening a new cycle of escalation.

The Inception of International Defense - An Interview with Dr. Mark S. Ellis

The Inception of International Defense

An Interview with Dr. Mark S. Ellis

Edited by Emma Bakkum & Paul Williams

A Note on Defending Justice

This blog is part of the Defending Justice series, an initiative of the Public International Law & Policy Group (PILPG) to promote an eclectic array of voices within the field of international criminal law. 

As part of our broader efforts to strengthen institutions of justice, this series seeks to create space for dialogue around the varied perspectives and concerns that shape these institutions. With that aim in mind, we interviewed a series of defense practitioners working in international criminal law and distilled their experiences and insights into a series of first-person blogs, preserving the spirit and voice of those interviews.

Editor’s Note

This blog delves into the origins and evolution of the work of defense counsel before international criminal tribunals. It presents the reflections of Dr. Mark Ellis, based on his extensive experience providing assistance to the International Criminal Tribunal for the former Yugoslavia (ICTY), his active involvement in the Saddam Hussein trial in Iraq, the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the International Criminal Court (ICC), and his service as Executive Director of the International Bar Association (IBA). Through the examination of key defense developments, including the financial remuneration of defense counsel, assigning and selecting defense counsel, defense counsel ethics, and the role of bar associations, this blog traces the evolution of the defense counsel’s role in international criminal law, showcasing how defense contributions have shaped the fabric of international justice. Starting at the formative days of defense at the ICTY, including in the landmark Tadić case, the blog presents first-hand accounts of the key challenges and milestones faced by defense counsel appearing before the ICTY and beyond, illuminating key developments of the defense at international criminal tribunals, and laying the foundation for understanding the broader international justice system.

Introduction

While the idea of international criminal justice institutions dates back to the aftermath of the First World War, it was only after the Second World War that the first international criminal courts, the Nuremberg and Tokyo International Military Tribunals, were established, aimed to address war crimes, crimes against peace, and crimes against humanity committed during the war. These tribunals laid the groundwork for future international criminal justice mechanisms. Large-scale atrocities committed in the former Yugoslavia and in Rwanda in the 1990s led to the establishment of two ad hoc international tribunals (the ICTY and the International Criminal Tribunal for Rwanda; ICTR), set up by the United Nations in 1993 and 1994, respectively. Following the ad hoc international tribunals, the international community experimented with other formats: hybrid courts, such as the Special Court for Sierra Leone (2000) and the Special Tribunal for Lebanon (2007); and special or extraordinary chambers embedded within national systems, like the Extraordinary Chambers in the Courts in Cambodia (2003) and the Special Panel for Serious Crimes in East Timor (2002).

Meanwhile, discussions of an independent international criminal tribunal emerged after both world wars, but became more realistic with the end of the Cold War, when the easing of geopolitical tensions fostered renewed multilateralism and revived the international community’s concern with impunity. Several rounds of negotiations culminated in the adoption of the Rome Statute, the founding treaty of the International Criminal Court (ICC), in July 1998. The Statute entered into force on July 1, 2002, after 60 countries ratified it. The ICC became the first treaty-based, permanent international criminal court to help fight impunity by investigating and, where warranted, prosecuting individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.

I have been involved in the field of international criminal justice since 1995. My journey into defense work started at the ICTY and in the Tadić case. Thirty-six years ago, Justice Richard J. Goldstone, the founding Chief Prosecutor of the ICTY, set out the importance of Tadić receiving a fair trial and a proper defense. That principle has been the north star throughout my career in international law, including ensuring that fair trial rights, through adequate and effective defense, remain central in international and domestic criminal trials. 

Following the Tadić case, I have served in several positions advising on high-profile international criminal processes. I served as Legal Advisor to the Independent International Commission on Kosovo, chaired by Justice Goldstone. I was appointed by the Organization for Security and Co-operation in Europe (OSCE) to advise on the creation of Serbia’s War Crimes Tribunal. I was involved with the Iraqi High Tribunal and acted as legal consultant to the defense team of Nuon Chea at the ECCC. In 2000, I was appointed Chair of the Advisory Panel of the ICTY. In 2013, I was admitted to the List of Assistants to Counsel of the ICC. In 2015, I also served as Chair of the UN-created Advisory Panel on Matters Relating to Defense Counsel of the International Residual Mechanism for Criminal Tribunals (previously the ICTY and ICTR).

I currently serve as the Executive Director of the International Bar Association (IBA), leading the foremost international organization of bar associations, law firms, and individual lawyers. My current focus is specifically on the IBA’s assistance to Ukraine, which includes legal support for war crimes accountability, technical assistance and capacity-building for judicial institutions, and support for justice reform and reconstruction efforts. In addition, I serve as an advisor to the ICC on sanctions issues. Prior to joining the IBA, I served for ten years as the Executive Director of the Central European and Eurasian Law Initiative (CEELI), a project of the American Bar Association (ABA). As part of this initiative, I provided technical legal assistance to twenty-eight countries in Central Europe and the former Soviet Union, as well as to the ICTY in The Hague. To this day, CEELI remains one of the most extensive international pro bono legal assistance projects ever undertaken by the US legal community. 

Throughout these experiences, I witnessed the role of defense counsel grow in importance over time. As international criminal cases became more complex, the overall organizational structure for international defense improved significantly and financial support increased. Challenges invariably remain. Nevertheless, the evolution of international defense since the early years of the ICTY is remarkable and yields critical lessons for the way forward. 

Early Years at the ICTY: The Tadić Case

The International Tribunal for the former Yugoslavia

The ICTY was established in 1993 in response to the conflicts in the former Yugoslavia in the 1990s, specifically the mass atrocities taking place in Bosnia and Herzegovina and Croatia. I lived in the former Yugoslavia from 1985 to 1988, having been awarded a Fulbright Scholarship.

Reports of horrendous crimes, including the killing and wounding of thousands of civilians, torture, sexual abuse, and forced displacement, led to global outrage and prompted the UN Security Council to act. In accordance with Chapter VII of the UN Charter, the UN Security Council established the ICTY in May 1993. The ICTY was the first ever international criminal tribunal established by the UN, and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. 

Based in The Hague, The Netherlands, the ICTY’s mandate was to prosecute those individuals most responsible for serious international crimes such as murder, torture, rape, enslavement, destruction of property, and other crimes listed in the Tribunal’s Statute, committed in the former Yugoslavia since 1991. By bringing perpetrators to trial, the ICTY aimed to deter future crimes and render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia.

Throughout its operation, the ICTY indicted 161 persons; all cases were completed by the time the Tribunal closed in 2017. The ICTY indicted heads of state, prime ministers, army chiefs of staff, interior ministers, and many other high- and mid-level political, military, and police leaders from various parties to the Yugoslav conflicts. The ICTY transformed the landscape of international humanitarian and criminal law by establishing groundbreaking legal precedents, expanding the scope of international criminal accountability, and reinforcing the principle that no one is above the law.

The ICTY officially closed its offices on December 31, 2017. The International Residual Mechanism for Criminal Tribunals (IRMCT), created by the UN Security Council in December 2010, assumed responsibility for a number of essential functions previously carried out by the ICTY and ICTR (which had closed in 2015). In doing so, the IRMCT maintains the legacies of the pioneering ad hoc international criminal tribunals and aims to reflect best practices in international criminal justice. In 2024, the IRMCT reported on a historic turning point for the Mechanism with the conclusion of all core crimes cases and fugitive tracking.

The closing of the ICTY as a standalone institution and the recent reduced activity of the IRMCT mark the end of a period in international criminal justice shaped by the ad hoc tribunals, which also transformed the landscape of international defense work. The end of the ICTY experiment calls for a reflection on the formative days of the role of defense counsel.

The Start of Defense Counsel at the ICTY

The ICTY website highlights the crucial role of defense counsel: “a competent defense upholds equality of arms between the Prosecution and the Defense, thereby ensuring the fairness of the proceedings.” Interestingly, defense lawyers were not directly involved in the creation of the ICTY. Their role only became integral during the development of the ICTY’s Statute and Rules of Procedure and Evidence. From that moment, it became clear that defense attorneys would be critical to the Tribunal’s success. 
However, defense counsel faced several challenges in the early years of the ICTY. When the ICTY became operational, it had no defendants. The true catalysts for defense came from the first case at the Tribunal: the Tadić case. Duško Tadić, a Bosnian Serb and President of the Local Board of the Serb Democratic Party in Kozarac, was accused of participating in crimes committed against Bosnian Muslims and Croats in the Prijedor region of Bosnia and Herzegovina during the war in the early 1990s. He was accused of crimes involving the abuse and torture of detainees in concentration camps. Tadić faced multiple charges, including crimes against humanity, grave breaches of the Geneva Conventions, and violations of the laws and customs of war. In 1997, after a total of 79 trial days, Tadić was convicted of wilful killing, torture or inhuman treatment, and murder. The Trial Chamber found, among others, that Tadić participated in the collection and forced transfer of civilians to detention camps, the killing of two Muslim policemen, and the participation in the killings of five men. He was sentenced to 20 years in prison.

The Tadić case was remarkable in numerous ways. Not since the international military tribunals established in Nuremberg and Tokyo after World War II had perpetrators been held accountable for international crimes before an international tribunal. The case set important legal precedent in international criminal law, including by providing definitions of war crimes and crimes against humanity, by expanding the scope of war crimes that could be prosecuted at the international level, and by contributing to the principle of command responsibility, which says individuals in positions of authority can be held accountable for actions of subordinates if certain elements are proven.

Once Tadić was transferred to The Hague, a crucial yet unclear question was the engagement of defense lawyers. As the first indigent defendant in a modern international criminal law trial, Tadić’s attorneys were assigned, which was the first time the Registry had to do so.

A year before the start of Tadić’s trial, I traveled to The Hague for a meeting with Justice Richard J. Goldstone. Justice Goldstone was a prominent South African judge and the first Chief Prosecutor for the ICTY and ICTR. At this point, he was setting up the prosecution offices for these pioneering tribunals, in which he played an instrumental role. During the meeting, I offered CEELI’s full support to the new Prosecutor in his first trial. Justice Goldstone, however, wanted me to assist with training the defense teams. Justice Goldstone recognized the importance of the fairness of the proceedings and was concerned that the defense did not have sufficient resources. He once noted during an address: “There is no question that history will judge the Tribunals for the former Yugoslavia and Rwanda on the fairness or unfairness of their proceedings. Whether there are convictions or whether there are acquittals will not be the yardstick. The measure is going to be the fairness of the proceedings.” 

I agreed to assist with training the defense teams. It is a credit to Justice Goldstone that, as the Prosecutor, he sought to ensure the defense had sufficient support and resources. I fully leaned into ensuring that defense had the resources to provide effective representation for suspects and the accused.

Tadić’s Defense Team and Initial Challenges

Defense Team Structure

I became convinced that the best approach to the defense was to assemble a diverse team of international and local (co-)counsel. This naturally creates the strongest team. When the Tadić trial started, the selection process for counsel at the ICTY was included in the original 1994 Directive on Assignment of Defense Counsel and was relatively straightforward. An attorney had to meet several requirements, including being admitted to a state bar or being a law professor, and having fluency in one of the Court’s working languages (French or English).

The initial counsel of Tadić were not schooled in the common law system. Partly because the ICTY was based in The Hague, some of the early defense counsel were, in fact, Dutch. Professor Michail Wladimiroff, one of the Netherlands’ most respected criminal lawyers, was assigned as lead counsel for Mr. Tadić. Mr. Wladimiroff had impeccable credentials. He selected Alphons Orie, another superb lawyer, as his co-counsel, who later became a respected judge with the ICTY. 

I spoke to John Heffernan, director of the Coalition for International Justice, and we decided to initiate a training program for both Wladimiroff and Orie. I reached out to a good friend in the US, Joe Jones, who was a well known criminal lawyer. In turn, he suggested another American criminal lawyer, Carol Bruce, and a UK barrister, Steven Kay KC, a leading English barrister, to join the training team. With the assistance of another great American lawyer, Alain Norman, we created an extensive week-long training seminar focused on adversarial techniques, recognizing that the ICTY’s procedures and practices would lean heavily on common law traditions. The training seminar took place at the Peace Palace – a stunning building in the heart of The Hague and the home of the International Court of Justice (ICJ). Because Wladimiroff was recovering from a back injury, we trained Orie in the Palace and Wladimiroff at his home while he was in bed! Both of them quickly picked up cross-examination techniques. However, they also recognized their own lack of experience in an adversarial trial. Thus, it was felt that it was essential to add a common law barrister to the defense team.
At the end of the training week, I visited the ICTY’s Registrar, Dorothée de Sampayo, and asked that a common law barrister be added to the team. I had earlier sought Justice Goldstone’s approval. One of the arguments I made was that at the time, the prosecution trial team had a mix of five Australian/US counsel, and there was a need for “equality of arms” (see below on equality of arms). To her credit, the Registrar agreed, and Stephen Kay was added to the defense team. Mr. Kay even agreed to take a substantial reduction in his fee. Another talented UK barrister, Sylvia de Bertodano, had recently completed her pupillage at the English bar and joined earlier as an assistant to the Dutch lawyers. Immediately, Mr. Kay took responsibility for cross-examining witnesses, while Mr. Wladimiroff and Mr. Orie continued to direct the overall case and advance arguments. 

Additionally, since the start of the ICTY, a transformation occurred in which lawyers from conflict situations joined the defense team. This has generally been a positive development. However, for the Tadić trial, the Serbian lawyers that Tadić had added to his team on his own were not working out. Consequently, Mr. Wladimiroff and Mr. Kay worked to have all of them removed from the team, which Tadić agreed to. While the skills used in a domestic criminal case are obviously relevant, they do not necessarily include the legal background required for a complex international war crimes case. Back then, the average attorney simply was not schooled in this practice. 

Because of the ICTY’s elaborate Rules of Procedure and Evidence, as well as its numerous directives, these attorneys found themselves unfamiliar with the ICTY and its procedures. However, the team did utilize local investigators, including Tadić’s brother and another local – Dragan Petrovoc, who had worked with a documentary crew and “fixer” in the local Yugoslav region.

The overall solution in the Tadić case was to blend co-counsel familiar with common law and civil law, with both having experience in international criminal law. Each brought his or her own unique expertise and experience. Had a common law lawyer not been added to the Tadić defense team, the trial would have been viewed entirely differently. The Wladimiroff/Orie/Kay defense team approach became the paradigm for international war crime tribunals.

Equality of Arms

Ensuring the basic tenets of a fair trial remain crucial at international criminal tribunals. The principle of equality of arms between the prosecution and the accused goes to the heart of the right to a fair trial. The importance of defense rights is premised on the equality of arms principle. This was a pivotal issue during the Tadić trial, and the trial influenced the interpretation and application of the principle of equality of arms in international criminal proceedings.

Equality of arms is not just achieved through the assignment of defense counsel. The defense teams at the ICTY faced serious challenges due to insufficient resources. The resources available to defendants, both in preparation for and during a trial, are fundamental to justice through due process. 

For instance, low remuneration for defense lawyers and limited support for their travel and witness interviews are relevant examples. In fact, the defense counsel for Mr. Tadić argued that there was no equality of arms between the prosecution and the defense at trial, which seriously affected the preparation of the case and therefore frustrated the right to a fair trial. The inability to gain access to evidence and enter key villages and towns in hostile states necessary to build the defense’s case had weakened counsel’s ability to represent their client effectively. 

The ICTY Appeals Chamber referenced jurisprudence from the European Court of Human Rights (ECtHR), affirming that equality of arms encompasses the right to adequate time and facilities for the preparation of the defense, as outlined in Article 21(4)(b) of the ICTY Statute.

In my research and through interviews with defense counsel and the Registrar, I learned that defense counsel’s access to the region of the former Yugoslavia greatly diminished over the years following the first case. Yet, the Tadić case and the decisions made reinforced the importance of procedural balance.

I have said many times that the ICTY would be judged by the fairness of its proceedings and by the certainty that the accused received a fair trial and proper defense. Ultimately, no one has questioned the outcome or legitimacy of the Tadić trial, precisely because equality of arms was ensured through the assignment of defense counsel. Justice Goldstone has reiterated this view on several occasions, stating that without the support given to the Tadić defense team, the trial would not have been fair.

The Evolution of Defense Counsel before the ICTY and ICTR

Key lessons learned from defense in the Tadić case continued to guide my work with defense teams and to influence defense work at the ICTY and ICTR. As the number of cases before the ICTY grew following the Tadić case, the role of defense counsel evolved. The evolution of defense counsel can be witnessed through developments in several areas, including remuneration, assignment and selection, ethics, and the role of civil society.

The Financial Position of Defense Counsel 

Remuneration for defense counsel is one area that drastically changed over the years. Thankfully, defense counsel salaries at the ICTY and ICTR substantially improved following the first ICTY case against Duško Tadić.

The original 1994 Directive on the Assignment of Defense Counsel (amended several times since) provided for limited remuneration for defense counsel. Counsel in the Tadić case was paid a fixed rate of $800 for the entire trial ($400 for each stage of the trial) and a daily rate of only $200 per day. As I have written in “The Evolution of Defense Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia”, the remuneration in the Tadić case was hardly commensurate with the amount of time devoted to the case. Assigned Counsel spent 12 to 14 hours a day, six days a week, completing pre-trial and trial work. Counsel prepared for more than 85 cross-examinations and over 35 direct examinations of defense witnesses. When calculated based on a seven-and-a-half-hour workday, the lead defense counsel was paid $26 per hour, which also covered general administrative costs for the counsel’s office. Tadić’s counsel, Mr. Wladimiroff, waived his usual fees to meet the ICTY’s payment schedule.

After Tadić, compensation for counsel at the ICTY and ICTR generally improved. The Directive, amended in 2000, raised the fixed rate from $400 per trial stage to $2,000. The fixed daily rate was also raised considerably. In the early 2000s, depending on years of experience, lead counsel at the ICTY were remunerated at rates between $80 and $110 per hour, up to a maximum of 175 hours per month. An experienced counsel could earn more than $230,000 per year. Expenditures such as phones, mailing, office equipment, rent, fax services, and secretarial support were included in the payment to counsel of fees and costs. 

The Legal Aid Policies for the pre-trial, trial, and appeal stages later provided a more detailed payment scheme. They outlined the fixed rates for each phase of the proceeding, grouped into three levels of complexity (difficult, very difficult, and extremely difficult). The pre-trial stage policy provided for fixed rates, while the trial and appeal stage policies provided for a fixed rate per month depending on the difficulty of the case.

The Assignment and Selection of Counsel

The assignment and selection of defense counsel were established in the Statutes of the ICTY and ICTR, which referred to a right of the accused to communicate with “counsel of his or her own choosing” in Article 21(4)(b) and Article 20(4)(b) respectively. However, the right to counsel of an accused’s choosing was not without limits. The ICTY and ICTR generally left the administrative task of selecting counsel to the Registrar’s discretion, particularly to ensure that the counsel chosen met the criteria for assignment. However, in reality, the accused had great latitude in selecting his own counsel. In fact, there had rarely been a refusal of a request for assignment of counsel of choice during the ICTY’s history.

The Directive on the Assignment of Defense Counsel further governed the procedures for the assignment of defense counsel. The original Directive from 1994, in Article 16(A), entitled the suspect or accused to one attorney as assigned counsel only. The word “one” was interpreted literally. However, due to the enormous amount of work involved and the complexity of the Tadić case, as mentioned earlier, I successfully petitioned the ICTY for an additional defense attorney. The then ICTY Registrar reasoned that the Directive, while limiting counsel to one counsel, nevertheless allowed discretionary use of funds to secure the services of a defense counsel consultant.

In 1996, following the Tadić trial, the Directive was amended to allow the assignment of a second counsel to the accused under exceptional circumstances. By 2000, the ICTY further relaxed its co-counsel rules, allowing co-counsel more routinely, along with support staff such as investigators, translators, and language assistants, to manage the vast documentation involved. Article 16(C) of the Directive provided that the Registrar may, in the interests of justice and at the request of the lead counsel, “assign a second counsel to assist with the defense [...].” The Directive clarified the distinction between lead counsel and co-counsel too: acting under the authority of the lead counsel, the co-counsel may deal with all stages of the proceedings and all matters arising out of the defense. Article 16(D) further allowed the Registrar to “assign a co-counsel who does not speak either of the two working languages of the Tribunal but who speaks the native language of the suspect or accused.” Finally, Article 16(E) provided for the assigning of “other persons such as legal assistants, consultants, investigators and interpreters, as required, to provide support to counsel.” The article clarified that the lead counsel and the persons assisting him shall be referred to as the defense team.

Defense Counsel Ethics

The ICTY faced serious challenges in regulating ethics and discipline among defense counsel, given the diverse legal backgrounds of defense counsel from various countries. For instance, a system of “fee-splitting” emerged, in which the defendant appointed lawyers from the former Yugoslavia, with a portion of the lawyers’ fees paid to the defendant’s family. Unlike domestic systems with bar associations, the ICTY lacked a unified regulatory body. To address this, it introduced a Code of Professional Conduct in 1997, based on Rules 44–46 of its procedural framework, and subsequently amended it a few times. 

The Code was drafted by judges (not lawyers) and heavily influenced by national models, especially the ABA’s Model Rules. The Code, substantially revised in 2002, aimed to clarify defense counsel’s rights and obligations, restrictions and responsibilities, govern aspects of counsel’s work, such as confidentiality and conflicts, and to impose a disciplinary regime, including a Disciplinary Panel. A similar Code was introduced at the ICTR, and the ICTY code influenced the development of the ICC’s Code of Professional Conduct for Counsel.

Role of Civil Society 

The Tadić case was not only a legal milestone but also a starting point for civil society engagement in international justice. During the Tadić trial, a number of platforms and networks of civil society collaboration (e.g., CEELI) were heavily involved and played a crucial role by promoting transparency, advocating for victims’ rights, and shaping public discourse.

Civil society also recognized the importance of an effective defense as a component of a fair trial, which was crucial to the development of the defense. Several NGOs provided research or offered legal expertise and training to defense teams, recognizing the need for competent defense lawyers. Some NGOs advocated for procedural fairness and equality of arms, indirectly supporting defense teams by urging the ICTY to improve resources, transparency, and access to evidence.

Regarding the ICC Code of Professional Conduct, the IBA undertook a rigorous drafting process through an international Advisory Panel of legal experts.

Association for Defense Counsel 

Finally, a milestone development for the defense counsel was the establishment of the Association of Defense Counsel for the ICTY (ADC-ICTY). With the conclusion of the first trial, during which support for the early defense team was provided through a training program developed by CEELI, it became evident that it would be helpful for defense to consolidate formally, and in a way that would allow them to advocate for their interests. The ICTY judges saw a need for an association for the defense for several reasons. First, such an association could ensure a higher quality of defense counsel. Second, it could make collective representations to the ICTY on behalf of all defense counsel involved in cases. Third, it could deal with ethical and disciplinary issues. After more than a year of work by a special ad hoc working group, the ICTY established the Association of Defense Counsel of the ICTY in September 2002.

The judges amended the ICTY’s Rules of Procedure and Evidence, making membership of a recognised association of counsel a necessary requirement for inclusion on the so-called Rule 45 List (list of qualified counsel). This requirement can be found in Rule 44 of the ICTY Rules of Procedure and Evidence.

In December 2016, the General Assembly of the ADC-ICTY voted to adopt an amended Constitution which renamed the Association as the “Association of Defense Counsel practicing before the International Courts and Tribunals” (ADC-ICT). The ADC-ICT’s objectives include supporting the functioning, efficiency, and independence of defense counsel, promoting and ensuring the proficiency and competence of defense counsel, and overseeing their performance and professional conduct. It is the only official association of defense counsel that has practiced before the IRMCT. Lawyers admitted to the ICC List of Counsel are represented by ICCBA.

The Arc of International Defense and Way Forward

Following the armistice that ended World War I, the Treaty of Versailles committed the signatories to try Kaiser Wilhelm II for his crimes. Although he was never brought to justice, it would be the first time in history that nations imagined the possibility of an international tribunal. The ICTY, ICTR, and the ICC are a testament to that early vision.

In the 30 years since the UN Security Council created the ICTY, the international community has seen the field of international criminal law and the institutions within it steadily solidify, ultimately leading to the establishment of the ICC. The role of the ICTY and the ICTR in this evolution of legal thought cannot be underestimated. The ICTY’s achievements, in both substantive and procedural law, have established legal standards, and its perceived success is undoubtedly a major reason for the creation of the ICC.

ICTY and ICTR

Reflecting on my experiences, those early years at the ICTY showed a propensity to adapt to changing circumstances and needs. Representing those accused of some of the most heinous crimes of the past century was one of the most crucial aspects of the Tribunal. Yet, at the formation of the ICTY, issues addressing the needs of the defense counsel were not a priority for the newborn tribunal. However, because of the foresight of the ICTY’s first prosecutor, Richard Goldstone, and the Registrar, Dorothy de Sampayo, issues related to the defense counsel slowly gained greater importance. 

Although the years that followed have not been a panacea for all of these issues, the overall structure of the defense counsel significantly improved at the ICTY and ICTR. For instance, as described in this blog, the financial support for defense counsel at the ICTY improved. The number of assigned counsel and support staff provided to indigent defendants also increased. And, although not required, the ICTY adopted a liberal policy permitting the accused to select any available counsel qualified to appear before it. 

The ICTY also made progress in strengthening the integrity of the defense structure: the adoption of a code of professional conduct for defense counsel represented a milestone in countering allegations of ethical misconduct by assigned counsel. Finally, one of the hallmark developments was the formation of the Association of Defense Counsel of the ICTY.

International Criminal Court

These ICTY-specific defense developments significantly influenced the ICC’s defense framework. The ICC’s framework reflects several lessons learned from the ICTY and ICTR regarding defense issues, including the selection and assignment of defense counsel, defense counsel fees, and counsel ethics.

First, the ICC implemented a similar system of selecting defense counsel. The ICC’s Registrar oversees a list of approved counsel who meet the criteria set out in the Rules of Procedure and Evidence (Rule 20-22). Consistent with the ICTY and ICTR, the ICC makes clear that the indigent defendant does not have the absolute right to choose counsel. The Court reserves the right to select counsel for the defendant where the interest of justice so requires.

Likely in response to equality issues faced at the ICTY and ICTR, the ICC adopted a different approach to assigning counsel, allowing for the creation of a defense team. At the initial arrest, a defendant is assigned a “duty counsel” selected by the ICC from a list of attorneys in the accused’s country. The lead counsel is then allowed to assemble a defense team that, at various stages of the trial process, includes a professional investigator, two legal advisors, and one assistant. To facilitate this and other defense issues, the ICC has created an Office of Public Counsel for the Defense, an independent office within the registry whose purpose is to represent and research the rights of the defense and of persons entitled to legal assistance. Its functions include representing and protecting the rights of the defense during the initial stages of proceedings, providing general legal support to defense teams, and acting as an amicus curiae on defense issues.

Second, when embarking on creating the ICC’s legal defense system, the Registry conducted an impressive review of international and domestic legal aid systems. To avoid the early financial problems of the ICTY and ICTR, the ICC decided to reinforce the ICTY lump-sum payment system for assigned counsel, establishing an overall payment scheme for assigned defense counsel. 

The ICC Legal Aid Policy outlines the remuneration system in section G and Annex II, including remuneration for services provided and a monthly living cost lump sum. Unfortunately, there has been criticism about the ICC’s pay for defense counsel. Compared with other international tribunals, the ICC provides relatively low remuneration.

Third, following the ICTY’s practice, the ICC likewise recognised the need for a uniform code of conduct; Rules 8 and 22(3) of the ICC’s Rules of Procedure and Evidence authorized its creation. The Rules permitted the Registrar to develop a code of professional conduct in consultation with appropriate legal associations. As mentioned earlier, the IBA led a lengthy, consultative drafting process from 2002–2003 to build consensus across jurisdictions, and the Code of Professional Conduct for Counsel was adopted by the ICC’s Assembly of States Parties in 2005.

Finally, a considerable achievement at the ICC, building on the vital work of the ADC at the ICTY, is the creation of the International Criminal Court Bar Association (ICCBA) to advocate and lobby for defense interests similarly.

The struggles the ICTY encountered in dealing with issues affecting the defense offer current and future international tribunals ample opportunities to avoid similar mistakes. The significant achievements in the field of international criminal law and issues of accountability over the last 30 years have solidified the common understanding that, to ensure fair trials, adequate support for defense and the accused is a necessity. To maintain respect in the international community and to adhere to the principles of justice and the rule of law, international tribunals cannot be created merely to convict. I have witnessed that defense is no longer merely an afterthought as it was in the early years. 

Way Forward

Despite achievements, issues affecting the defense must remain a priority. Challenges inevitably remain (as other blogs in this series outline). As the field continues to develop and adapt, new challenges will arise. Over the past few years, we have seen a growing focus on the defense as it continues to play a critical role in shaping international criminal law at both the global and domestic levels. To meet international standards of international criminal law, this development requires an active role of the international community in capacity-building support. 

For instance, it has been very encouraging to see that Ukraine is receiving additional legal training in international criminal law from the IBA. Presently in Ukraine, over 97% of all war crimes committed by Russia since its full-scale invasion against the country will be tried by national courts. It is an arduous task with currently over 190,000 incidents of war crimes registered in the non-occupied territories alone. Ukraine’s legacy for these domestic trials will largely depend on whether the trials are seen to have met international standards of fairness and impartiality. The role of defense attorneys will be critical to meeting these standards.

The growth in domestic accountability processes, as we have also seen in universal jurisdiction cases, reinforces the idea that some crimes are so heinous that the world cannot turn a blind eye and that it has a duty to hold those responsible accountable. While this is inevitably not an easy duty, more acknowledge that a duty exists to combat impunity. We should be at a point where it is assumed that, to achieve accountability and ensure justice, a robust defense is a component of both processes. 

Conclusion

Protecting the rights of the accused appearing before international war crimes courts is not an easy task. Particularly where the most egregious crimes have been committed, social pressure to convict can be overwhelming. Coupled with the budgetary constraints associated with internationally supported courts, the focus on fair trials and the rights of the defense is often lost in the mayhem.

The rights of a defendant are fundamental to fair and impartial trial proceedings. Too often, defense issues fell to the bottom of the priority list. While there was a strong focus on the role of judges and prosecutors, little attention was given to legal assistance for the defense. Defense teams tended to be underfunded and short-staffed. Even the presumption of innocence was often absent in court statutes, particularly at the domestic level.

Although there are still many challenges for the defense, the ICTY changed the landscape of international defense remarkably. Initial challenges were overcome thanks to the foresight and resolve of some of those involved in the early defense work. The Tadić defense team’s approach, combining common and civil law experience and balancing regional expertise and procedural competence, became the paradigm for international war crime tribunals. And in the years that followed the Tadić case, crucial achievements were made at the ICTY and ICTR, some in response to the realities of defense work during that first case. 

At the ICTY and ICTR, the number of assigned counsel and support staff provided to indigent defendants increased. The ICTY adopted a liberal policy, allowing the accused to select any available counsel who is qualified to appear before the ICTY. Beyond acknowledging the importance of assigning defense counsel, the Tadić case made clear that equality of arms encompassed the right to adequate time and facilities for the preparation of the defense. Financial support for defense counsel at the ICTY and ICTR improved in comparison to the first case. 

The ICTY and ICTR also made progress in improving the defense framework with the adoption of a code of professional conduct for defense counsel. These, and other developments, greatly influenced the broader international criminal justice field, including the ICC’s framework. A landmark development is the establishment of the International Criminal Court Bar Association (ICCBA) to represent the interest of counsel and support staff at the ICC.

The Tadić trial made evident that, in ensuring fair trials, support for the defense was necessary. Today, defense is no longer an afterthought for international criminal trials. That is a tremendous achievement in itself. Nevertheless, as the focus of international accountability increasingly shifts to domestic trials, these trials require greater specialized knowledge, awareness, engagement, and support from lawyers and the public generally. 

Negotiating Peace Under Fire: How Dayton Informs Ukraine’s Path to a Durable Settlement

Negotiating Peace Under Fire: How Dayton Informs Ukraine’s Path to a Durable Settlement

By: Dr. Paul R. Williams* and Sindija Beta**

The Dayton Peace Agreement of 1995 is often celebrated as a diplomatic breakthrough. It ended nearly four years of brutal conflict in Bosnia and Herzegovina, halting atrocities and stabilizing the Balkans. Yet Dayton’s compromises were not neutral; they reflected the urgency of stopping violence rather than building a durable state. The agreement froze wartime territorial divisions, entrenched ethnic power-sharing, and created a constitutional framework that was more a ceasefire mechanism than a blueprint for governance. Bosnia survived, but its institutions remained fragile, dependent on international oversight, and prone to paralysis. The lesson for Ukraine is sobering: compromise can end war, but if it undermines sovereignty or institutional coherence, it risks producing a peace too brittle to endure. 

Territorial Integrity: The Perils of Codifying Loss

Dayton’s territorial settlement effectively legitimized wartime gains by recognizing the Republika Srpska as one of two constituent entities within Bosnia and Herzegovina, alongside the Federation of Bosnia and Herzegovina. This arrangement embedded ethnic separation into the constitutional fabric and rewarded territorial conquest achieved through ethnic cleansing and genocide. The result was a peace that was stable on paper but contested in practice. Republika Srpska’s leadership has repeatedly threatened secession, undermining Bosnia’s sovereignty and fueling nationalist rhetoric that obstructs reform. The territorial division also entrenched displacement: hundreds of thousands of Bosniaks and Croats did not return to their pre-war homes, leaving the promise of multiethnic coexistence hollow. 

For Ukraine, the stakes are even higher. Any negotiation that concedes sovereignty over occupied territories would not only weaken Ukraine’s national survival but also erode the principle of territorial integrity that underpins international law and global stability. Just as Dayton’s recognition of Republika Srpska entrenched ethnic partition and legitimized wartime atrocities, conceding Ukrainian territory would normalize aggression and occupation. The precedent of rewarding force would reverberate beyond Ukraine, emboldening other actors to pursue annexation and undermining global norms designed to protect sovereignty. 

Political Stability: Avoiding Institutional Paralysis

Dayton’s power-sharing arrangements sought to balance ethnic representation, but they produced a system prone to deadlock. The tripartite presidency, requiring consensus among Bosniak, Croat, and Serb members, became a symbol of paralysis. Ethnic vetoes embedded in the constitution blocked reforms, while the Office of the High Representative (OHR) was repeatedly forced to impose laws and dismiss officials to keep the state functioning. Bosnia’s institutions became arenas of obstruction rather than vehicles of progress, with international actors forced to intervene repeatedly to break political stalemates.

Ukraine must avoid replicating such institutional fragility. While inclusivity and representation are vital, political arrangements should strengthen rather than weaken state capacity. Stability cannot rest on institutional fragmentation; it requires a resilient constitutional order capable of adapting to future challenges. Bosnia’s experience shows how constitutional rigidity can stall reform and obstruct integration into the European Union. For Ukraine, this means designing institutions that are inclusive but not immobilized, representative but not hostage to vetoes, and flexible enough to evolve as the country rebuilds after war.

Security Guarantees: Balancing External Support and Domestic Resilience

Dayton relied heavily on international military presence to enforce peace, beginning with NATO’s Implementation Force (IFOR) and later Stabilization Force (SFOR), before responsibility shifted to the EU’s mission (EUFOR Althea). This external enforcement prevented renewed conflict but also revealed Bosnia’s fragility. Its armed forces remained fragmented for years, only gradually unified under international supervision, and the state continued to depend on foreign troops. Even today, Bosnia’s stability is contingent on international actors, raising questions about the durability of a peace that never fully transitioned into self‑sufficiency.

Ukraine’s trajectory is different. The war has already compelled the country to build a strong, unified military capable of defending its territory, while also relying on external support to deter further Russian aggression. NATO’s involvement is not a substitute for Ukraine’s resilience but a necessary complement, given the scale and persistence of Russia’s attacks. The lesson from Bosnia is that peace enforced externally without internal consolidation risks dependency and stagnation. Ukraine’s security architecture is emerging as a blend of self‑reliance and credible international guarantees, where domestic defense capacity anchors sovereignty and NATO’s deterrence provides the external shield against renewed aggression.

Toward Durable Peace in Ukraine

The Dayton Peace Process demonstrates both the necessity and the peril of compromise. It ended the war but entrenched divisions, secured stability but undermined governance, and provided security but fostered dependency. In Bosnia, the compromises that brought immediate calm also embedded fragility into the state’s foundations, leaving institutions vulnerable to paralysis and sovereignty dependent on external oversight.

Ukraine’s situation carries echoes of these dilemmas but also important differences. Negotiators face immense pressure to deliver peace quickly, from domestic constituencies exhausted by war and international actors eager for stability. Yet Dayton reminds us that the quality of peace matters as much as its speed. A settlement that trades away territorial integrity, weakens institutions, or leaves security reliant on external enforcement risks becoming a temporary pause rather than a lasting resolution. Bosnia’s experience shows how compromises that appear pragmatic in the moment can generate long‑term instability.

For Ukraine, the central question is how to balance the urgency of ending violence with the durability of the settlement that follows. The lessons of Dayton suggest that peace is most resilient when it reinforces sovereignty, strengthens governance, and combines domestic resilience with credible international support. Bosnia’s stalled EU accession illustrates how rigid constitutional compromises can obstruct integration, while Ukraine’s path toward EU membership offers an opportunity to embed peace within a broader European framework. If Bosnia illustrates the dangers of a peace built on dependency and division, Ukraine’s path will be judged by whether it can secure a settlement that avoids those pitfalls and lays the foundation for a stable, democratic, and sovereign future.

* Dr. Paul R. Williams is the Co-Founder and Director of the Public International Law & Policy Group and Rebecca Grazier Professor of Law and International Relations at American University

** Sindija Beta is the Legal Officer and Program Manager at the Public International Law & Policy Group

Defending Before the International Criminal Tribunal for the Former Yugoslavia - An Interview with Colleen Rohan

Defending Before the International Criminal Tribunal for the Former Yugoslavia

An Interview with Colleen Rohan

Edited by Cailan Cumming, Kate Gibson & Paul R. R. Williams

A Note on Defending Justice

This blog is part of the Defending Justice series, an initiative of the Public International Law & Policy Group (PILPG) to promote an eclectic array of voices within the field of international criminal law. 

As part of our broader efforts to strengthen institutions of justice, this series seeks to create space for dialogue around the varied perspectives and concerns that shape these institutions. With that aim in mind, we interviewed a series of defense practitioners working in international criminal law and distilled their experiences and insights into a series of first-person blogsblogs, preserving the spirit and voice of those interviews.

Editor’s Note

This blog presents the experiences and perspectives of Colleen Rohan, a prominent defense lawyer whose decades of defense practice encompass some of the toughest cases in U.S. domestic criminal law as well as landmark cases before the International Criminal Tribunal for the former Yugoslavia (ICTY). Through her personal journey in international criminal law, Rohan offers a singular perspective on the evolution of international defense, including the creation of the Association of Defence Counsel (ADC), the practical and ethical questions of representing persons accused of serious international crimes, and the procedural and institutional obstacles that shaped the early operations of the ICTY. Drawing upon Rohan’s experiences, readers gain insight into the daily realities of defense work, from navigating disclosure battles to fostering collegiality in a multicultural defense community, to the ways in which defense counsel must adapt to evolving legal systems. Her experiences illuminate both the successes and limitations of the ICTY, the development of substantive international criminal law, and the ongoing need for recognition, resources, and respect for defense practitioners in international tribunals.

Introduction

When the International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993, it was in response to atrocities that shocked the world—mass killings, ethnic cleansing, systematic rape, and the genocide in Srebrenica. For the first time since Nuremberg, an international court was created to hold individuals accountable for war crimes, crimes against humanity, and genocide. Over the years, the tribunal indicted political leaders, military commanders, and others in positions of authority, setting important precedents in international criminal law while also drawing criticism for its accessibility and procedures.

By the time I arrived in The Hague, the tribunal had already been operating for more than a decade, but my own journey there had begun much earlier. I never set out to become a lawyer, let alone an international criminal defense lawyer. As an undergraduate at UC Berkeley, in Berkeley, California U.S. I worked to support myself, taking a job as a typist at the Meiklejohn Civil Liberties Institute under Ann Fagan Ginger, a remarkable human rights lawyer. I thought I was headed toward a career in psychology, but Ann pushed me to consider law. I then worked as a typist for Patrick Hallinan, a celebrated criminal defense lawyer in San Francisco, where I was taken to court and given real work to do. Patrick also encouraged me to go to law school and told me he would give me a job if I did, which he followed through on. These two mentors, who convinced me that law would be a way to help people, were instrumental in my beginnings in law. 

My journey into law was a gradual process, but I was fortunate to be part of a generation that believed lawyers were not simply there to earn a fee, but to use the law as a tool for positive change in people’s lives. We genuinely felt we could help shape the law while helping individuals. We were not naïve, but we were optimistic, an optimism that waned as our legal careers progressed. Still, that early sense of altruism was essential in driving us forward as young lawyers.

My first introduction to ‘international’ law was when Patrick Hallinan was engaged to represent an American, William Joseph Quinn, who traveled to Ireland to join the Irish Republican Army (IRA) and was charged with a series of bombings in England and for the murder of a police officer in London. Watching that case unfold, with questions of extradition and about laws in other countries, opened my eyes to a field of law I had not considered before. Still, I spent the next 25 years in the U.S., first in private practice, later at the State Public Defender’s Office handling serious felonies and death penalty cases, and then back in private practice defending gang cases and post-conviction death penalty cases.

In the late 1990s, my partner Gregor Guy-Smith, also a defense lawyer, and I moved to Toulouse, France. While there, we followed the developments of the international tribunals for Rwanda and the former Yugoslavia. Given our background in criminal defense, they struck us as interesting places to work and as a way to stay in Europe. Though we eventually returned to the United States, the seed had been planted.

At that time, there was a small but growing community of lawyers involved in international criminal law. Gregor attended a meeting of these lawyers in Montreal where he met Peter Murphy, who was working on the first Kosovo case at the ICTY against Fatmir Limaj, Isak Musliu, and Haradin Bala, members of the Kosovo Liberation Army (KLA) who were charged and later acquitted of war crimes. Peter invited Gregor to join the defense team for Haradin Bala, and eventually Gregor became lead counsel.

I spent time between California and The Hague, as our daughter was still in high school, but I met many people in the Hague community. Eventually the Registrar suggested that I take on cases myself, considering me qualified and recognizing the need for defense counsel at the time. After nearly 25 years in domestic criminal defence I formally entered the world of international criminal law.

Both Gregor and I were deeply interested in the development of international criminal law, the kind of law that was being practiced, which was very different from U.S. domestic law, and the future of these tribunals. Life in The Hague meant being part of a vibrant, dynamic community with constant intellectual discussion about the law. We quickly realized how much there was to learn and how trials operated in other countries. Many who left The Hague to return to domestic practice often came back due to just how compelling this field of law was. For us, the transition into international criminal law ultimately felt natural, meaningful, and engaging.

First Case

My first case at the ICTY was representing Milorad Trbic, a Serb implicated in the genocide in Srebrenica. I arrived in The Hague early that first morning, and by 11 a.m., I had my first meeting with the Prosecutor. He briefed me on the case and handed me three large boxes of disclosure, which was just the beginning of what would eventually amount to hundreds of thousands of documents. By the end of the case, even after I had moved on, over a million documents had been disclosed. 

After the meeting, I went to the ICTY’s ‘Defence room’. It was a shared space with a few computers and desks, but all the defense teams at the tribunal needed to use this space, which was about 30 to 40 people. With so few resources and no offices, there was constant jockeying for space and equipment. Most of the defense team members were from Serbia or other parts of the former Yugoslavia, and many different languages filled the room. At first, I felt completely overwhelmed. Setting up an office and figuring out how to begin going through the case was mostly up to me at this time. 

A woman introduced herself as co-counsel for one of the co-accused in the Srebrenica case. She told me there were many things I did not know because the case had progressed before my client was arrested and indicted and before I was brought in as counsel. She then proceeded to tell me that my client had confessed to 26 murders he did not commit and that his confession was false. This revelation completely shifted how I approached the case and evaluated the disclosure before even meeting my client. In my entire career as a defense lawyer I had never experienced anything like that—a false confession to 26 murders.

My co-counsel’s experience and local knowledge of the region and the war were invaluable. What could have been an intimidating first day instead became an important and welcoming introduction to the international defense community. I quickly realized that the collegiality among defense lawyers was strong and was a vital support system in navigating my first case.

My first day in court was equally eye-opening. I had to wear a robe, use headphones for translation, and navigate multiple computer screens for simultaneous interpretation. The proceedings involved three judges and no jury—a clear difference from my experience in the U.S. common law system. I had no time to thoroughly prepare so I relied on advice from colleagues who had gone through the same experience in order to understand exactly what to do in court. In other aspects it was easier for those coming from a common law system to learn the tribunal’s legal system. Many of the defense lawyers came from Serbia, a civil law system, without adversarial procedures like cross-examination, so even seasoned lawyers from these systems needed to learn courtroom techniques that were specific to the tribunal. That was a lot of pressure and challenge in such a high-stakes environment.

Other aspects of the system were not so comfortable to me as someone coming from a common law system. Hearsay evidence was admissible, certain witnesses were protected and inaccessible, and client access could also be difficult. Gradually, we adapted to the rules and procedures while working on our case and observing other cases, even if we did not like the rules and procedures we had to work with. One of the aspects of working at the tribunal that I never quite got used to was navigating the relationship with the prosecution. In the U.S., regardless of your relationship with the prosecutors, they will generally provide the required information, be reasonable, and generally be collegial. At the ICTY, some prosecutors seemed reluctant to share relevant or exculpatory evidence and at times could even be considered hostile towards the defense. The ICTY itself was structured around three pillars—Registry, Judges, and Prosecution—and as defense counsel, we were not formally part of this hierarchy. This meant the prosecution could sometimes view the defense as a necessary obstacle to be dealt with at trial. 

That first case taught me the realities of international criminal defense: navigating an unfamiliar legal system, managing massive disclosure with limited resources, and building relationships within a complex institutional structure, all while advocating for a client whose liberty and life were at stake.

Ethics of Defense Representation

In the United States, much of my early career was spent handling gang-related cases, including death penalty work. These cases could be quite demoralizing as they involved deeply damaged victims, deeply damaged clients, and often involved individuals who were emotionally and mentally unstable and had committed cruel and vicious crimes. The negativity was unrelenting. Over time, it took a toll.

Given the gravity of the crimes tried at international tribunals, many people assume that the ethical questions of defending clients at international tribunals must be even greater. In fact, I found the opposite to be true. My clients at the ICTY were not gang members or career criminals but rather those working in the military or members of the political structure. They were men who had once lived what we might call ordinary lives—people with an education, with families, with stable homes—until the war broke out. The only reason they became involved in criminal conduct was because the war literally arrived at their front doors. They were fighting for their communities, their families, and for what they believed in, in the context of a violent, ongoing war. If it was not for the war these people probably, with rare exception, would have never committed a crime. 

Take someone like Milorad Trbić, a low-ranking officer in the Bosnian Serb Army. He was trained, above all else, to follow orders. In military life, obedience is non-negotiable. Today, we have rules of law prohibiting soldiers from carrying out commands that are facially illegal or immoral, but in the reality of war, that was not the case for many of the officers on the ground. Many of the people who were told to shoot civilians in Srebrenica said no, and there was a whole regiment whose leader refused to shoot civilians, and they walked away. Some are able to withstand the pressure of those commands in a military environment. Others are not.

In the U.S., I represented people who often made destructive choices in their everyday lives. At The Hague, many of my clients were men who did not generate the situation that brought about the crime, but rather the situation was generated for them. These were men who would never have committed a crime had it not been for the war. For me, there was never an ethical conflict in defending someone who had been put in such a situation. Now, that is an entirely separate issue from whether they have a proper defense or not.

Other defendants came from the political leadership. I was on the standby team for Radovan Karadžić, who, as President of the Republika Srpska, was prosecuted for nearly every crime committed during the war. Karadžić was highly educated and highly intelligent. You may completely disagree with his worldview—and I certainly did—but like anyone involved in war, he took day to day decisions about the battlefield, and he did so with others who were in the political structure. Leaders on all sides were responding to very real political issues.

To understand that dynamic, you need to go back to the history. All wars, including the war in the former Yugoslavia, are in response to something. For instance, Bosnia’s former Muslim president, Alija Izetbegović, had published The Islamic Declaration in 1970, which Serb leaders interpreted as a call to transform Bosnia into a Muslim state. So, when Muslims moved into the area, they felt threatened, and tension and hatred began to build. When you combine this tension with the reality of war where people have lost their homes and family members; cannot work; and cannot walk anywhere without feeling unsafe, you begin to understand where the sense of existential threat comes from and how people are driven or feel driven to make decisions that we would not take under normal circumstances. Under those conditions, decisions were made that, in hindsight, absolutely constitute war crimes. How much of that is understood at the time is another complex issue.

This is why learning about your client’s history, culture, and lived reality is absolutely essential in international criminal defense. Whenever possible, I tried to travel to the region, meet people, and attempt to understand what it must have been like for my client during the war. Through this exercise, you can begin to understand why your client functioned the way that they did—not to excuse their behavior but to attempt to understand it. Defendants make poor choices and may be racist or Islamophobic, but these things never raised a single ethical barrier for me in representing them. My role was not to endorse their views, but to test whether they were guilty of the alleged crimes under the law, to ensure their rights as defendants were respected, and that they received a fair trial.

At the ICTY, we also had the Association of Defence Counsel (ADC), which I will discuss in greater detail below. The ADC was a professional association of defense counsel working at the tribunal and it included a disciplinary committee. This body was there to support lawyers who faced genuine ethical dilemmas in their cases and did not know how to resolve them. The committee could provide confidential advice and opinions, helping counsel navigate the complexities of international criminal practice. That structure itself was a recognition that, in this unique environment, ethical questions could arise in ways we might not encounter in domestic practice.

Shaping the Future of Defense

The Birth and Development of the ADC

When I first arrived at the ICTY, it quickly became clear that very little thought had been given to the defense during the tribunal’s creation—who we would be, how we would be supported, how we would fit into the institution, or how we would function. The tribunal paid us to handle our cases, but beyond that, we were largely on our own.

In the early years, defense counsel were highly restricted and, in many ways, ignored. For example, our badges allowed us to enter only a narrow corridor leading to the defense room in the tribunal building. We were barred from the cafeteria, the library, and certainly from entering the Prosecutors’ offices. Meanwhile, the prosecution had full offices, support staff, and access to a database of cases and case law that we could only consult from within the building. For those of us not living full-time in The Hague, legal research was incredibly difficult. We were permitted just three paid travel days to the Hague per month unless our case was in trial, which meant that the lawyers who did not live in the Hague full-time could not conduct legal research for their cases. 

At one point the Judges became concerned about the ethical practices among defense counsel. They proposed creating a structure to monitor ethical behavior and provide training. Many of us thought this was an excellent idea because at least, finally, we were being included in the institution in some way. Based on this original group, and working closely with the Registrar, we established what became the Association of Defence Counsel (the ADC or ADC-ICTY).

The ADC was a proper association, complete with a constitution, executive committee, president, training committees, and a disciplinary committee. It was the first step in providing the basic support that defense counsel needed to prepare and defend their cases effectively. By 2005, new defense counsel could walk into the tribunal building, knock on the door of the ADC, and receive the minimum guidance, information, and access necessary to do their work in this new environment.

Within a couple of years, the ADC began offering trainings with the basic information needed for defense counsel to do their jobs, such as how to conduct direct and cross-examinations, and substantive training on international criminal law. This was essential because the ICTY was the first modern international criminal tribunal, meaning many legal issues were being determined in real time and international law was constantly evolving. At the time you could not access this information on your home computer so the ADC’s trainings were critical.

The community support that grew from the ADC was invaluable. Defense counsel came from all over the world, including countries that had once been on opposite sides of conflicts, yet we shared a common language: going to court and representing the accused. Overcoming these early challenges together forged a strong bond among us. Working together to do our job effectively became more important than any of our differences.

Looking back, the birth and development of the ADC was one of the ICTY’s most enduring contributions to the international defence community. The ADC has now existed for over twenty years, and its legacy paved the way for the ICC’s Defence Association, the ICCBA, which gives defense counsel similar institutional support after many years without it.

Manual on International Criminal Defence

When the ICTY began planning to put out a manual to explain the basics of the tribunal and its three pillars of the Chambers, Prosecution, and Registry, the Office of the President suggested that someone write a chapter about the Defense. I wrote the chapter and included commentary on some of the challenges we faced as defense counsel, particularly regarding limited resources and difficulties in securing disclosure from the prosecution. Those who initially read the draft described it as reasonable and constructive. However, the Prosecution was not pleased. They wanted the sections on disclosure challenges removed. In the end, the ICTY President’s office did not allow us to edit the chapter and simply left it out of the final manual.

The primary funder of the manual, the United Nations Interregional Crime and Justice Research Institute (UNICRI), seeing that the defense chapter had been taken out, asked if the ADC would be willing to put together a defense manual for publication. We agreed. Lawyers from the ICTY, coming from all over the world, contributed to the manual, offering practical guidance on every aspect of defence work—from conducting direct and cross-examinations to writing and arguing motions, to interviewing witnesses effectively.

The publication of that manual marked a turning point. The perception of the ICTY judges towards the defense began to change. They started to recognize the defense’s role within the tribunal and the value of our inclusion in tribunal matters, rather than just limiting our relevance to basic due process rights. Defense representatives were now invited to important meetings and we felt that our role was more respected, our ideas listened to, and that we were treated with less hostility. 

In the early days of the ICTY, for example, the defense was rarely consulted or listened to by the Rules Committee, which decided on changes to rules and evidence procedures that directly affected our daily work. Often rules were passed without considering how they would function from a defence perspective, which meant wasted time and resources litigating adjustments that could have been avoided with proper consultation. The manual, and our advocacy in creating it, helped change that dynamic, giving defence counsel a stronger voice and greater accessibility within the tribunal.

Legacy of the ICTY

Fairness of Trials

When I reflect on the trials at the ICTY, I believe that, by and large, they were fair. Admittedly, at the beginning, I approached the proceedings with some skepticism, assuming that judges might be biased. But in practice, I found most of them were genuinely trying to reach reasonable conclusions based on the evidence before them. There were, of course, exceptions where judges made their bias absolutely clear. One well-known case involved Judge Frederik Harhoff, whose impartiality was called into serious question after he sent a private email to a large group in which he was critical of his judicial colleagues’ judgments acquitting certain commanders, and expressed his view the acquittals were political and did not follow the law. He was subsequently removed from the tribunal.

In my own cases, I found the judges made an effort to adhere to the rules of evidence and procedure. Appearing before a panel of Judges is a completely different experience from presenting your case to a jury. In an international tribunal like the ICTY, you are building a working relationship with three individuals who are deciding a case and it is very different from the relationship you have with a jury. It is not about appealing to the emotions of a jury but rather about establishing credibility with the judges, demonstrating the reliability of your evidence, and presenting yourself as a trustworthy advocate. You are trying to figure out who the judges are and how they think. Through that process you hope that they will listen to you and accept your view of the evidence.

Development of International Criminal Law

In terms of the broader development of international criminal law, I believe the ICTY had an enormously positive impact, provided people actually pay attention to it. I do not agree with every decision that came out of the tribunal, but the parties and the Judges worked through some extremely complex factual and legal questions. They produced opinions that can be relied upon in later courts and tribunals, creating a body of jurisprudence that continues to influence international criminal law. The challenge, of course, is that no one is formally required to follow ICTY decisions, but they are cited, studied, and increasingly used as a reference. Domestic courts and specialized tribunals in the region, such as the War Crimes Chamber of the Court of Bosnia and Herzegovina and the European Union Rule of Law Mission in Kosovo (EULEX), have drawn on ICTY jurisprudence to guide their own proceedings.

International criminal law is, and will always be, a dynamic and evolving field. In my view, the ICTY played a critical role in shaping this landscape, setting standards and offering a foundation upon which future tribunals and courts built upon and continue to build upon.

Continuing Challenges 
When I look at the landscape of international criminal law today, I see both progress and lingering challenges. Compared to the ICC, I believe the ICTY had a particularly strong defense association, and over time, we gained much better recognition of the defense’s role and function within the tribunal. That recognition, however, does not remove enduring issues, particularly when it comes to disclosure of exculpatory evidence, an issue that has major implications on the right to a fair trial.

Disclosure was a significant challenge at the ICTY, and it continues to be at the ICC. I recall one case at the ICTY where we actually filed a motion seeking sanctions against a Prosecutor for withholding exculpatory evidence. The Trial Chamber granted our motion and ordered sanctions, but on appeal, the decision was overturned. The Appeals Chamber was concerned about setting a precedent that would hold a Prosecutor personally accountable in this way. In another case, I remember a particularly sympathetic witness—an older gentleman who spoke about the brutal killing of his parents and how the war had devastated his life. He spoke about who he thought was responsible for the human cost of war and who he thought directed it, and he left the courtroom as a highly credible witness. A few days later, however, we received a late disclosure from the prosecution: this same witness was actually a wanted war criminal and had committed crimes against humanity himself. By the time this information came to light, he was no longer available for cross-examination. The late disclosure fundamentally affected the fairness of the proceedings, leaving us unable to properly examine or challenge his statements.

At the ICC, there are similar, and in some respects, more structural challenges for the defense. One example is the delayed admissibility of evidence. At the ICC, the admissibility of all evidence that the parties seek to admit and present during the trial is only formally ruled on by the judges at the end of the case. This means that if the Prosecutor seeks to admit an expert report and the defense objects, arguing that it is inadmissible on certain grounds, we will not know during the trial whether the evidence will ultimately be accepted. This makes it impossible for a Prosecutor to know if they have met their burden of proof. For the defense, this creates a major dilemma: we cannot determine whether we need to present affirmative evidence to rebut certain claims. Essentially, we are left guessing, which is unfair and undermines the defendant’s right to a fair trial. 

Conclusion 

Reflecting on my experience, I would emphasize the importance of cautious optimism for young lawyers entering the field. When I first began practicing at the ICTY, the dynamism of international criminal law, combined with the diverse and supportive community of defense counsel, was what drew many of us to The Hague and continues to bring lawyers back today. Learning from other defense counsel how to navigate a new court system, and learning as you go on each case, continues to be a vital part of practicing defense in international tribunals.

The existence of a Defence Association, first at the ICTY and now at the ICC, remains crucial for onboarding and basic training of defense lawyers, providing guidance and support in a complex and often overwhelming environment. Yet challenges remain: limitations in technology, inadequate facilities, and restricted funds for travel all continue to impact the effectiveness of the defense. 

Despite these challenges, the defense community at the ICTY overcame these obstacles together, forging strong bonds across cultures and legal traditions, a practice that continues today at the ICC and other international tribunals. As the first modern international criminal tribunal, the ICTY faced constant legal evolution, and both Counsel and Judges worked hard to address extraordinarily complex issues. From my perspective, the ICTY made a tremendously positive contribution to the development of substantive international criminal law, producing solid jurisprudence that continues to guide courts and tribunals around the world. The creation of the Association of Defence Counsel (ADC) was also a critical achievement, ensuring that defense voices began to be recognized and supported.

Looking forward, international tribunals must continue to build on these lessons. Proper funding and resources, clear communication, a strong defense association, and genuine recognition of the function of the defense are essential for maintaining the fairness and integrity of international justice. Counsel must be included in discussions regarding rules of procedure, and the prosecution must be held to high standards of timely and full disclosure of exculpatory evidence. Ultimately, even as decades pass and new tribunals are created, the needs of defense practitioners remain the same: for our role to be recognized, our ideas heard, to be treated with respect, and that our basic needs are met so that we can effectively represent our clients. The ICTY was one important step toward achieving this and advancing true justice before the eyes of the international community.