The Prosecution of International Crimes: A Critical Study of the International Tribunal for the Former Yugoslavia

515 Pages·2003·24.962 MB·English

by  Madeleine Sann

THE
PROSECUTION OF
INTERNATIONAL
CRIMES

THE
PROSECUTION O F
INTERNATIONAL
CRIMES
EDITED BY
ROGER S. CLARK
AND
MADELEINE SANN
Originally published as vol. 5, nos. 2-3 (1994) of Criminal Law Forum: An
International Journal by Rutgers University School of Law, Camden, New
Jersey.
Published 1996 by Transaction Publishers
Published 2017 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright© 1996 by Taylor & Francis
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks,
and are used only for identification and explanation without intent to
infringe.
Library of Congress Catalog Number: 96-3549
Library of Congress Cataloging-in-Publication Data
The prosecution of international crimes : a critical study of the International
Tribunal for the Former Yugoslavia/ edited by Roger S. Clark and Madeleine
Sann.
p.cm.
Originally published as vol. 5, nos. 2-3 (1994 ), special issue of Crimi-
nal law forum: an international journal.
Includes bibliographical references.
ISBN 0-7658-0527-8 (alk. paper)
1. International criminal courts. 2. International Tribunal for the Pros-
ecution of Persons Responsible for Serious Violations of International Hu-
manitarian Law Committed in the Territory of the Former Yugoslavia since
1991. 3. Yugoslav War, 1991-Atrocities. I. Clark, Roger Stenson. II.
Sann, Madeleine. Ill. Criminal law forum. Special issue.
JX5428.P76 1996
341.6' 9' 09497-dc20 96-3549
CIP
ISBN 13: 978-0-7658-0527-0 (pbk)
ISBN 13: 978-1-56000-269-7 (hbk)
Contents
Editors’ Preface vii
Part I: Introductory Remarks
Introduction 3
Dusan Cotic
1. International Criminal Prosecution: The Precedent 17
of Nuremberg Confirmed
Christian Tomuschat
2. Toward International Criminal Justice 29
Jules Deschenes
Part II: Fact-Finding
3. The Commission of Experts Established pursuant to 61
Security Council Resolution 780: Investigating
Violations of International Humanitarian Law in
the Former Yugoslavia
M. Cherif Bassiouni
Part HI: Establishment of the Tribunal
4. An International Criminal Tribunal: The Difficult 125
Union of Principle and Politics
Peter Bums
5. An Ad Hoc International Tribunal for the 165
Prosecution of Serious Violations of International
Humanitarian Law in the Former Yugoslavia
Roman A. Kolodkin
6. Politics and the International Tribunal 185
for the Former Yugoslavia
David P. Forsythe
vi Contents
7. Legal and Practical Implications, from the 207
Perspective of the Host Country, Relating to the
Establishment of the International Tribunal for
the Former Yugoslavia
Julian J.E. Schutte
Part IV: Substantive and Procedural Issues
8. A Slovenian Perspective on the Statute and Rules of 237
the International Tribunal for the Former Yugoslavia
Pavel Dolenc
9. Rape and Other Forms of Sexual Assault in the 257
Armed Conflict in the Former Yugoslavia:
Legal, Procedural, and Evidentiary Issues
C.P.M. Cleiren and M.E.M. Tijssen
10. Rules of Procedure and Evidence of the 293
International Tribunal for the Former Yugoslavia
Daniel D. Ntanda Nsereko
11. Securing the Presence of Defendants before the 343
International Tribunal for the Former Yugoslavia:
Breaking with Extradition
Kenneth S. Gallant
Part V: Appendixes
Appendix A: Security Council Resolutions 377
780, 808, and 827
Appendix B: Report of the Secretary-General 385
pursuant to Paragraph 2 of Security Council
Resolution 808 (including the Statute of the
International Tribunal for the Former Yugoslavia)
Appendix C: Rules of Procedure and Evidence 439
of the International Tribunal for the
Former Yugoslavia
Appendix D: Security Council Resolutions 483
935 and 955 (including the Statute of the
International Tribunal for Rwanda)
Editors' Preface
The essays in this collection were originally published as a special
issue of Criminal Law Forum: An International Journal} We
conceived this study as a comprehensive account, by experts from a
variety of backgrounds, of an unprecedented effort by the United
Nations community to bring international law to bear on an ongoing
armed conflict. On May 25, 1993, the Security Council, through
Resolution 827, voted unanimously to set up an international criminal
court for the "prosecution of persons responsible for serious violations of
international humanitarian law" committed in the territory of the former
Yugoslavia since 1991, the year war broke out. The objectives behind
the creation of the International Tribunal for the Former Yugoslavia were
to restore peace to the region, to put an end to such crimes, and to bring
the perpetrators to justice.
Unfortunately, the conflict is still ongoing and many of the
concerns raised by the contributors to this volume remain unresolved.
In the early fall of 1995, the United States brokered a cease-fire but
there have been significant breaches on all sides and reports of mass
executions of Muslim civilians in northwestern Bosnia. In a few key
areas, however, the passage of time has begun to provide answers. Four
issues in particular require comment: the legality of the creation of the
Tribunal, legal proceedings to date, funding, and political support in the
international community for the prosecution of war criminals. This brief
survey brings the story forward through October 1995.
Legality. The effectiveness of the Tribunal depends, as an initial
matter, on whether the Security Council had authority under the United
1 Vol. 5, Nos. 2-3 (1994). Hence the cross-references in the notes to "this issue
of Criminal Law Forum."
viii The Prosecution of International Crimes
Nations Charter to create an ad hoc judicial organ. The first defendant
to come before the court argued against this proposition in a pretrial
motion decided August 10, 1995 (The Prosecutor v. Dusko Tadic, Case
No. IT-94-I-T). The Trial Chamber asserted that it lacked authority to
pass judgment on the legality of the Tribunal's creation because the
Statute of the Tribunal expressly limits its competence to deciding
criminal cases brought under the substantive provisions of that instru­
ment. Moreover, the Tribunal was set up under Chapter VII of the UN
Charter. This and other chapters confer primary responsibility on the
Security Council for maintaining international peace and security. The
judges could find no basis in the Charter, its drafting history, or the
jurisprudence of the International Court of Justice for conducting a
judicial review of any decisions taken by the Security Council in the
exercise of its peacekeeping functions.
Without deciding this question, the judges were nonetheless
unanimously of the opinion that the Tribunal had been lawfully estab­
lished. Chapter VII provides that the Security Council shall "determine
the existence of any threat to the peace" and shall "decide what measures
shall be taken." Tracing the series of actions by the Security Council
that led up to the adoption of Resolution 827, the Trial Chamber
concluded that the Council had duly determined the existence of a threat
to international peace and security from the war in the former Yugosla­
via. Examining the scope of discretion afforded under the Charter where
the Security Council makes such a determination, the Trial Chamber
concluded that the Council had authority to set up an international
criminal court as an enforcement measure to help "maintain or restore
peace" in the region. The judges further found no violation of the right
to a fair trial, as protected under international law, in the creation of the
Tribunal.
The defense appealed, and on October 2, 1995, the Appeals
Chamber delivered its judgment. The Appeals Chamber took a broader
approach to the meaning of "competence," holding four to one that as
a judicial organ it had inherent power to assess the lawfulness of the
Security Council's actions for the sole purpose of ascertaining whether
the Tribunal might properly entertain the defendant's challenge to its
jurisdiction. The Appeals Chamber then went on to hold that the
Security Council's decision to establish the Tribunal was a legitimate
measure aimed at the restoration of peace that conforms both to the UN
Editors' Preface ix
Charter and to the rule of law. This decision would appear to foreclose
similar challenges to the Tribunal's competence in the future.
Proceedings. Much skepticism has been voiced as to whether the
Tribunal will vigorously and impartially carry out its mandate to
investigate and prosecute persons suspected of serious violations of
international humanitarian law in the region of the former Yugoslavia.
The signs are encouraging. As of early October 1995, 43 individuals had
been indicted.
In July 1995, the Tribunal confirmed indictments against
Radovan Karadzic, president of the self-proclaimed Bosnian Serb
Republic, and Ratko Mladic, the Bosnian Serb military commander,
despite considerable political pressure not to do so. Karadzic and Mladic
are charged with genocide, crimes against humanity, war crimes, and
grave breaches of the Geneva Conventions of 1949 on the basis of events
that occurred from April 1992 through mid-June 1995. The Tribunal
has indicated that ongoing investigations into the apparent massacre by
Bosnian Serb forces of thousands of Muslim men and boys from
Srebrenica in July 1995 may result in additional charges against Karadzic
and Mladic. There is mounting evidence as well that Bosnian Serb
forces killed thousands of Muslim males in the Banja Luka area in the
fall of 1995 around the time the cease-fire was to go into effect. While
it is impossible to predict whether Karadzic and Mladic will be appre­
hended, they are vulnerable to arrest if they travel outside friendly
(essentially, Serb or Bosnian Serb) territory, and sanctions may be
imposed by the Security Council on states that refuse to cooperate with
the Tribunal in their surrender.
Another important development is the indictment in September
1995 of the first non-Serb, Ivica Rajic. Rajic, who is in the custody of
Bosnian Croat authorities on unrelated charges, commanded a Croat
militia that allegedly murdered Muslim civilians in a village in central
Bosnia in October 1993. He is expected to be surrendered to the
Tribunal and will join Dusko Tadic as the second accused in custody.
The Tribunal is pursuing investigations of other serious humanitarian law
violations alleged to have been committed by non-Serbs—both Muslims
and Croats. However, investigations into crimes against Serb victims
have been frustrated by lack of cooperation from Belgrade and Pale (the
Bosnian Serb headquarters).
Most recently, on October 9, 1995, proceedings were begun