An internationalized tribunal should not be able to utilise the death penalty because this may preclude the involvement of the United Nations and the wider international community community.

When the tribunal is created, or even influenced by the enemies of the defendants, the prospects for dispassionate judgment fade away. In such cases, trials threaten to become instruments of legitimized revenge, bearing the countenance of justice, at the expense of substantive fairness

The addition of international judges and prosecutors may bolster the capacity of the local judiciary and enhance the perception that the judiciary is independent and impartial. International judges and prosecutors should be familiar with the relevant int ernational laws and standards, while local judges are familiar with the relevant local law and the territory.

Punishment should not be a mere display of power of one over the other. This is exactly the kind of message criminal courts should counter. Showing brute force rather than reasons and respect for legal norms would, instead of reaffirming the legal (and moral) order, be a continuation of the conflict by other means (As Jon Elster argued, domestic trials are nearly always too harsh or too lenient*). The message sent by the punishment itself limits how much and what kind of punishment is permissible. Although enforcement of punishment inevitably comes with the use of power, it must be exercised by a legitimate authority for the right kind of reasons.

The version of expressivism we defend here takes the following form: international criminal courts achieve their aim if—and insofar as—they manage to convey the right kind of messages. The trial is a way to reaffirm legal order, establish truths, recognize the wrongs committed to the victims, and educate the public at large. It is not only a message about the crimes but also about the system of justice. It affirms its difference from the moral universe in which the crimes could occur precisely through its meticulous procedures and standards of evidence, and a humane punishment at the end. It is a way to say "no!" to war crimes and crimes against humanity. The message is one of respect for basic human rights and of nonviolent conflict resolution, and an exercise in the rule of law—all key ingredients for the (re)establishment of a well-functioning society. On this view, the fact that international criminal courts are not "of the community" whose crimes they adjudicate is an advantage over domestic trials.

* Jon Elster, Closing the Books (Cambridge: Cambridge University Press, 2004).

The system of international criminal justice is still fairly new and not universal in its scope, so it might still be too soon to assess its preventative impact. At the same time, it must be noted that the possibility of being tried before an international tribunal], however remote, has the potential to deter would-be violators. See inter alia Report of the Secretary-General, ‘Responsibility to protect: timely and decisive response', (2012) UN Doc. A/66/874-S/2012/578, para 29.

It is hard to believe that a criminal tribunal can become a tool for the restoration and maintenance of international peace and security. A criminal tribunal cannot become an instrument contributing to the process of national reconciliation either. A criminal tribunal must stick to the function of determining individual criminal guilt upon allegations that a crime has been committed, that the perpetrator can be identified, investigated, arrested, prosecuted and sentenced. Whether at the domestic or the international level; criminal prosecutions serve the same purposes of deterrence, incapacitation, retribution, and fighting impunity. A criminal tribunal cannot do more than that. The mandate of any criminal tribunal must be clearly stated, focused, and not overambitious. Its objectives must be reasonably delimited to fit in the functions of a criminal tribunal. Objectives which are beyond the functions of a criminal tribunal should be abandoned and reserved to other mechanisms of accountability and truth-telling. This was not the case when the ICTY and ICTR were established.

The internationalized tribunal should be established with the support of the relevant local actors and should not be viewed as ‘imposed'. It is essential that the tribunal has the support, input and cooperation of local authorities

Both national and foreign personnel typically staff mixed criminal tribunals. International and national judges and court personnel are meant to complement each other. That, at least, is one of the rationales usually listed for their creation. For instance, reliance on local judges and court personnel should instil in the local population a sense of ‘ownership' of the justice which is made in their name. On the other hand, international personnel are mostly there to ensure this sense of ownership does not translate into partiality. By their very presence they are meant to increase actual and perceived fairness and impartiality in proceedings.

The exact balance between the national and international components varies from case to case. Usually, international judges are the majority of the bench, but that is not always the case. Similarly, the prosecutor and/or the registrar of the court are usually foreign while the deputy is local, but there are exceptions, which, again, can only be explained by keeping in mind the particular historical and political contexts in which each of these bodies was created.

The creation of a defence office supports fairness, in particular when it combines high-level representation for the defence, administrative responsibilities including managing the list of counsel and legal aid for the defence, and substantive legal support to counsel. A defence office, responsible for providing both administrative and substantive support for the defence, has been a feature of many institutions and is usually located within the registry.

Registry staff assigned to deal with defence matters should have experience in international criminal defence.

A court’s provision of legal aid supports equality of arms and fair proceedings and has significant implications for the credibility of a court. A court or tribunal’s reputation as a fair and impartial institution may be undermined if there are indications that defendants, for lack of resources, are unable to mount an effective defence. As the IBA has emphasised, failure to adequately provide for legal aid may negatively affect perceptions about the fairness of trials, and for a court, these costs may be far greater than the actual expenses associated with operating the legal aid system. The inclusion of the right to legal aid is by itself insufficient. Hybrid tribunals and specialised chambers should include a detailed legal aid policy that clearly sets out what legal aid covers, including team composition and the costs covered per stage of proceedings.

Cases charging international crimes rely on a specialised body of law and procedure. The ability to appoint an international lawyer as part of a defence team can form an important aspect of fairness.

Mixed teams, including both domestic and international counsel, can bring relevant expertise to the defence team. Many tribunals have appointed mixed teams, and some, such as the ECCC, have required them. Lists of counsel can provide an important function in this regard, to screen counsel for admittance to practise before the tribunal on criteria including expertise in international criminal law.

The notoriously vague and often outright puzzling provisions of the Rome Statute of the International Criminal Court are best read as reflecting negotiated diplomatic compromises rather than some carefully constructed comprehensive view of criminal responsibility.

Left without specific procedural guidelines, international criminal tribunals have been forced to generate procedural rules on the fly, based on general overviews of procedural norms, institutions and practices in various legal systems across the world prepared by the court’s staff. These norms, as well as their application in particular cases, must then be subjected to review under applicable international human rights norms, which in turn cannot be interpreted except in light of the various traditions represented by the tribunal’s judges. See e.g. the different views of the requirement of ‘equality of arms’ in the criminal process explored in Prosecutor v. Aleksovski, Case No. IT-95-14-/1-AR73, PP 23-25 (Appeals Chamber, ICTY, 16 February 1999).

they are highly customizable. There is virtually no situation in which a kind of mixed tribunal could not be imagined and created. They can be made to fit any country or suspect. They can be created ad hoc to prosecute crimes against internationally protected persons or other international crimes created by treaties, and even in fields other than international criminal law.