Contempt proceedings before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda suffer from two procedural defects: the hearings run afoul of the principle of legality and fail to afford calibrated procedural protection for accused contemnors. First, this Note contends that these two tribunals properly rely on their inherent powers to codify procedural rules for contempt proceedings. However, the tribunals' inherent power to prosecute contempt does not allow the courts to punish contemptuous conduct that has not been explicitly proscribed. Such a prosecution contravenes the principle of legality, which provides that criminal responsibility may attach to conduct only when there is a known preexisting prohibition of that behavior. Second, this Note claims that while the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda may promulgate procedural rules governing contempt hearings, they are not empowered to create criminal contempt laws. Even though contempt proceedings before the tribunals are ostensibly noncriminal, they may be functionally criminal because they can impose substantial penalties. Whether criminal or noncriminal, because the proceedings may lead to severe sanctions, they lack the appropriate procedural protections that should accompany potential property and liberty deprivations.
June 2011 Vol. 109 No. 8 THE REVIEW
Infusing Due Process and the Principle of Legality into Contempt Proceedings Before the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda
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