The purpose of this article is to compare the International Criminal Court with the International Criminal Tribunal for the Former Yugoslavia from a structural and procedural perspective and to comment upon some of the content of the ICC Statute and Rules from the experience of the ICTY. The ICTY is the first tribunal established for the purpose of punishing violations of international humanitarian law since the post World War II trials and is a unique case study in the realm of international criminal justice. It is also the first criminal tribunal set up under Chapter VII of the United Nations Charter (a technique utilised subsequently in setting up tribunals to deal with Rwanda and possibly Sierre Leone) and has been granted broad powers of drafting and amending its own Rules of Procedure and Evidence, which is something that sets it aside from other criminal jurisdictions, including the ICC.

On Friday 3 March 2000, the International Criminal Tribunal for the former Yugoslavia (ICTY) delivered its judgment in the case of Tihomir Blaŝkić, a Bosnian Croat General under whose command, between May 1992 and January 1994, members of the armed forces of the Croatian Defence Unit (‘HVO’) committed serious violations of international humanitarian law against the Bosnian Muslim civilian population in the Laŝva Valley, Central Bosnia. The crimes consisted of a widespread and systematic attack on cities, towns and villages inhabited by Bosnian Muslims: killing and causing serious injury or harm to Bosnian Muslim civilians, including women, children, the elderly and the infirm; burning Muslims homes, plundering of Bosnian Muslim property including livestock, destruction of mosques and institutions dedicated to education, detention and forcible transfer of civilians, using Bosnian Muslim civilians as human shields and inhuman and cruel treatment of Bosnian Muslims civilian detainees in detention facilities.

An examination of public international law textbooks and articles concerning the relationship between international law and domestic law always leads one to refer to the traditional dichotomy between monist and dualist doctrines. According to the former, international and domestic legal orders are perceived as forming part of a whole structure, where international law is automatically incorporated into national law and becomes, therefore, a constituent part of the latter. By contrast, dualist theory considers that international law and municipal law are supreme in their own sphere of application, the former taking precedence over the latter, only insofar that a specific domestic norm incorporates it into that legal order.