The selection of international judges, Judge Wald said, is another area that bears little resemblance to the American system of jurisprudence. In this country, the president’s nominees to the federal bench undergo tough confirmation hearings which generally produce judges who are qualified for the job. Merit has not always been the sole consideration in choosing judges for international courts, Judge Wald said. When the United Nations created the ICTY in 1993, geographic and cultural diversity were as important as judicial experience, and the General Assembly rarely rejected a nominee based on qualifications, she explained.

According to Judge Wald, that problem was addressed by the drafters of the Rome Statute, when they created the International Criminal Court. They required all candidates to have experience in criminal law and procedure or competence in international humanitarian law and human rights.

But she admitted other gaps, such as accountability, are harder to close, given the different conditions under which American and international judges operate.

American judges are constrained by Congress and the precedents of prior courts, and their lower court decisions can be overturned at the appellate level. They also face media, public and academic scrutiny. Few such controls exist for their international counterparts, who are not subject to many of the customary checks and balances that limit the independence of American judges but lend legitimacy to their decisions, Judge Wald said.

And judges on international courts have no way to enforce orders seeking witnesses or evidence if sovereign governments do not cooperate, Judge Wald added.

Still, Judge Wald, one of only three American judges to serve on the Tribunal, believes the Court, set to conclude its work by 2008, will leave an important legacy. “The deficiencies cannot obscure (its) major achievements in bringing to justice some of the most terrible predators against the innocent victims of war and tyranny.”